People v. Goodspeed

85 Cal.App.2d Supp. 821 (1948) THE PEOPLE, Respondent,

v.

RICHARD C. GOODSPEED, Appellant.

California Court of Appeals.

April 8, 1948. William N. Parker for Appellant.

W. E. Simpson, District Attorney, and Jere J. Sullivan, Deputy District Attorney, for Respondent.

BISHOP, J.

If section 588 of the Penal Code is valid, then every property owner in the state whose land lies at any elevation above the highway which bounds it is guilty of a misdemeanor, subjecting him to a possible fine and imprisonment, if water from the car he washes, or the rain which falls upon the roof of his house, finds its way harmlessly into the ditch along the side of the roadway, or into the concrete gutter next to the curb. Indeed, if section 588 is valid as it affects the defendant in this case, any landowner who waters the grass or the trees in the parkway in front of his place, violates its provisions. We have concluded that the Legislature in its attempt to outlaw a few harmful practices has unwarrantedly declared unlawful so many harmless ones, that as it bears upon this case section 588 is without validity.

The section, since its redraft in 1921, reads as follows: "Every person who negligently, willfully or maliciously digs up, removes, displaces, breaks down or otherwise injures or destroys any state or other public highway or bridge, or any private way, laid out by authority of law, or bridge upon any such highway or private way, or who negligently, willfully or maliciously drains, diverts, or in any manner permits by seepage, overflow or otherwise, any waters thereinto or thereon from lands lying adjacent to or in the vicinity of [85 Cal.App.2d Supp. 823] any such state or other public highway or bridge or private way, shall be guilty of a misdemeanor."

[1a] The defendant has appealed from the judgment following his conviction upon the charge that he "did wilfully, unlawfully and maliciously draw, divert, or in any manner permit by seepage, overflow, or otherwise, any water onto a public highway, to-wit, Duarte Road ..." The complaint was faulty in making its charges in the disjunctive (People v. Moss (1939), 33 Cal.App.2d Supp. 763, 767 [87 P.2d 932, 935]). It also perpetuated a defect appearing in the code section itself by failing to insert a verb to indicate what it was that was permitted. A further and more serious criticism of the complaint grows out of the fact that it does not charge that the "any water" which the defendant was alleged to have permitted [to flow] onto the highway, came from lands lying adjacent to or in the vicinity of the highway. From the evidence it appears that Duarte Road was "adjacent" to defendant's land. [2] The code section, it will be noted, does not purport to prohibit a person from discharging water from his land onto a highway, if the highway is neither adjacent to nor in the vicinity of his land.