Couson v. Wilson

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HARRISON, P. J.

The plaintiff is the owner of a tract of land in Santa Cruz county bordering upon the county road leading from Watsonville to Santa Cruz, upon which there is a right of way appurtenant to an adjacent tract, of land known as the “Wilson Ranch,” and extending therefrom to the county road. For the purpose of enjoying this right of way, the owners of the Wilson ranch constructed a roadway about eighteen years ago across the plaintiff’s land, with several culverts therein, for the purpose of carrying below the road the surface water that would otherwise accumulate upon the upper or higher slopes of the land. In November, 1900, the plaintiff destroyed these culverts, with the result that thereafter the water flowed along the road, washing it out and making it almost impassable for vehicles, and carrying much debris down upon the lower portion of the land. The defendant became a part owner of the Wilson ranch in September, 1901, and thereupon entered into possession thereof, and thereafter used the said roadway in passing back and forth between his ranch and the county road. After he went into possession of the ranch the plaintiff demanded of him that he repair the roadway and fill it in and grade it in such a manner that the surface water would not be cast upon the lands below the road; and upon his refusal to do so brought this action to have the road declared a nuisance, and to recover damages sustained by him by reason of its defective condition. The defendant, in his answer to the complaint, and also by way of cross-complaint against the plaintiff, set forth many of the above facts and alleged by reason of the acts of the plaintiff in destroying the said culverts and making the road impassable he had sustained damage by being delayed in marketing his produce and in the enjoyment of his right to pass along the road, and that the road belonging to him had also been damaged in the sum of $300. The cause was tried by the court, and, in addition to finding the facts above set forth, it also found that the plaintiff had not been damaged by any of the acts of the defendant, and that defendant had not sustained any damage by being delayed in marketing his produce or in the enjoyment of his right to pass over the road, but that he had been damaged in the sum of $150 by reason of the wrongful removal of the culverts by the

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