Robinson v. County of San Diego

[154]

GRIFFIN, J.,

pro

tem.

The trial court found that since the thirtieth day of May, 1913, the plaintiff has been the owner and in possession of a tract of five acres of land in the south half of lot 7, block 156, Rancho Diablo-, in San Diego County; that during the month of February, 1928, defendant caused the portion of the highway known as Lincoln Avenue between the premises owned by the plaintiff and the intersection of Fig Street and Lincoln Avenue to be graded and lowered and ditches or drains to be constructed along the sides thereof so that all the surface waters accumulated upon said Lincoln Avenue have been diverted and caused to flow through said ditches or drains on said Fig Street in a southerly direction upon the premises of plaintiff. That by reason of the diversion of the natural course of said surface waters upon the lands' of plaintiff said premises have been rendered unfit for cultivation, etc.; that said premises are occupied as a home by plaintiff and the flooding of said premises renders sewage disposal on said premises impossible and that said flooding constitutes a nuisance. The decree directed that defendant be perpetually enjoined and forbidden from diverting surface waters across this particular intersection upon plaintiff’s land that did not flow upon it in its natural course prior to the month of February, 1928.

It cannot be determined from the record on appeal before us whether this finding is supported by the evidence. As appellant. admits in his brief, which we find to- be well founded, “the case was tried almost entirely by reference to the map (defendant’s exhibit A). Some of the witnesses were quite deaf and some spoke broken English and all testified by pointing to the map”. The map which is before us does not show the property involved by any description or reference, or name the streets or designate any points referred to by the witnesses. Consequently we will be compelled to assume that the trial court heard the evidence, and saw where the witnessses were pointing. The record shows that the court viewed the premises and after such view found the existence of facts which entitled the court to make the findings that it did. The record is unintelligible and the burden of proving error being on appellant the error must be shown by the record