Cory v. City of Stockton

BARTLETT, J.,

pro

tem.

By an amended and supplemental complaint filed in the superior court of San Joaquin County, on June 2, 1925, plaintiff seeks the abatement of an alleged continuing public and private nuisance, incidental damages, declaratory judgment and general relief. The original complaint was filed on January 28, 1924. Demurrers were interposed by defendants to the amended and supplemental complaint, which demurrers were sustained by the trial court without leave to amend and judgment was entered in favor of defendants on April 9, 1926. Plaintiff appeals from the whole of said judgment.

The material facts appearing from the amended and supplemental complaint are: The city of Stockton, in San Joaquin County, California, lies a short distance east of the San Joaquin River at its junction with what is known as Stockton channel. The San Joaquin River flows in a

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general northwesterly direction in this vicinity. Stockton channel extends easterly from the San Joaquin River to the center of the city of Stockton. Both of these watercourses are navigable streams over which much commerce has passed for many years. At various times in past years, commencing with 1881, the United States government has expended large sums of money for aiding navigation on these streams through deepening and rectifying their channels. Easterly of Stockton in the foothills of the Sierra Nevada mountains what is known as the Calaveras River has its source. This stream emerges from the foothills onto the San Joaquin Valley plain near a town known as Bellota, about fifteen miles east of Stockton. At Bellota the Calaveras River divides into two channels each flowing generally westerly. The southerly channel is known as Mormon channel and the other is called the Old Calaveras River. The Old Calaveras River empties into the San Joaquin River about three to five miles northwesterly from the city of Stockton, passing in its course just north of the corporate limits of that city. The southerly course of Mormon channel originally flowed through the corporate limits of Stockton and emptied into Stockton channel at a point just west of the west boundary of the city. Since 1877 Mormon channel carried the bulk of the water of the Calaveras River. This stream has a varying flow of from 29,000-acre feet to over a million-acre feet in a year. In certain seasons this river carried large quantities of sediment toward the San Joaquin River, and the main body of the water of the Calaveras River as it passed through Mormon channel conveyed with such water large amounts of this sediment, portions of which were deposited in Stockton channel and the San Joaquin River, thereby causing detriment to the navigability of the streams. The lands adjacent to these rivers in seasons of rainfall were subject to floods which overflowed portions of the city of Stockton. The matter of the silting of Mormon channel and the San Joaquin River and the possibility of its prevention was made a subject of study by the United States war department. As a result of this study an appropriation by Congress was recommended for the purpose of constructing a canal to carry the water of Mormon channel to the Old Calaveras