Genazzi v. County of Marin

TYLER, P. J.

Action for damages and mandatory injunction. The proceeding was brought by plaintiff against the County of Mann and the Supervisors for the purpose of preventing defendants from continuing to divert a stream from its natural course to plaintiff's damage. The complaint in substance alleged that plaintiff was the owner of abo cit five hundred acres of land in Mann County. That for more than forty years last past and until the year 1927 there had been in said county a natural stream of water commonly known as Olema Creek which flowed along and across the southerly portion of the lands of plaintiff and thence upon and across the main county road leading from Point Reyes to Olema; that at a point where the said Olema Creek crosses the said county road there had, for many years, existed a bridge, and the waters of the creek, in their natural course, flowed across the road under said bridge. That on or about July 1, 1926, the defendants, the Supervisors of the County of Mann, executed a contract with the defendants Cuffe and White for certain improvements on the county road, and in the process of the work it was decided to divert the stream from its old crossing and carry it in a northerly direction, along the easterly side of the county road by means of a wide and deep ditch some five hundred feet in length constructed along said easterly side of said road in front of plaintiff's land, to a point about five hundred yards northerly from the point where the creek flows out upon the county road from

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the lands of plaintiff; that the construction of the ditch results in preventing ingress and egress to the plaintiff’s property without the use of bridges. Other allegations recite that defendants have entirely filled the creek bed across the county road, thereby forming a dam. It is the contention of the plaintiff that the probable result which will follow this diversion of the water will be the backing up of storm flood waters on to his land, inundate the same and destroy the roadway. As an additional element of damage, it is alleged that the construction of the ditch along plaintiff’s property frontage prevents ready egress and ingress to a large portion thereof save by the construction of numerous bridges. An injunction is prayed for restraining the defendants from the continued maintenance of the dam and ditch, and for their removal, so as to permit the waters to flow along their natural course. Damages are also claimed in the sum of one thousand dollars. A demurrer was filed to the amended complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained without leave to amend and judgment was entered in favor of defendants and against the plaintiff. This is an appeal from the order and judgment. It is appellant’s contention that the diversion of the waters on to the main road creates a nuisance