Nola v. Orlando

ATTERIDGE, J.,

pro tem.

The plaintiffs in this action are the owners of land on the west side of Capital Avenue in Santa Clara County, and the defendants own the land immediately across said avenue on the easterly side thereof. Defendants maintained on their lands a cement flume through which water was pumped for irrigation purposes. Plaintiffs allege in their complaint and the trial court found that waters escaped from said flume and came on to the lands of plaintiffs, thereby causing a certain well-pit and pump located at the point of its influx to cave in. For

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redress of this injury plaintiffs brought action, and the trial court awarded them the present judgment, from which defendants appeal.

As originally framed plaintiffs’ complaint did not charge the defendants with negligence, but instead relied upon the legal doctrine hereinafter stated as the basis of this decision. But on the trial, under the pressure of a vigorously urged motion for judgment on the pleadings, plaintiffs sought and obtained the trial court’s permission to amend their complaint by alleging that the acts forming the basis of their complaint were negligently done. The trial appears to have then proceeded on the assumption that the theories of negligence and liability without negligence were both in issue. On the termination of the trial the court found in entire accordance with plaintiffs’ complaint except that it did not find that the defendants were negligent in permitting the water to be discharged upon plaintiffs’ lands. In this connection it should be noted, however, that on oral argument before this court appellants waived any and all reliance upon the claim of a material variance between the complaint and findings, and rested their appeal squarely upon their asserted proposition that in no event could there be a recovery for the damages caused by the escape of said water from defendants’ flume unless it be affirmatively established that the same was caused by and through the negligence of defendants.

As we conceive the present state of the law in California relating to the outlined evidentiary situation, appellants’ contention cannot be upheld. The cement flume of defendants constituted an artificial and not a natural watercourse. The escape of water therefrom was not in any degree caused by the added pressure of flood or storm waters, nor was the same occasioned as a consequence of an inevitable accident. It occurred solely by reason of the manner of the construction and maintenance of defendants’ said flume plus their act of pumping water through it. With this certain cause of the injury in view, we regard it as immaterial whether or not these acts be in terms held