Thomson v. La Fetra

LENNON, J.

This is an appeal from a judgment upon the judgment-roll alone which shows that the defendants maintain a dam which prevents the entrance and flow of certain surface waters upon and across their lands, and so diverts these waters that they flow upon the land of the plaintiff.

The lands of the parties to the action are located near the city of Glendora, in Los Angeles County. The lands are hounded on the north by a public highway which runs from east to west. The land of the plaintiff is situated several hundred feet to the east of that of the defendants. Some distance to the north are foothills. Seven hundred and fifty feet directly north of the defendants’ lands is the mouth of a canyon. Following heavy rains there is a stream in this

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canyon, and, owing to the grade and to the fact that it follows the east wall of the canyon, this stream is given a southerly direction at the canyon’s mouth. It originally proceeded in a southerly and southeasterly direction to a point four hundred feet north of the defendants’ lands, where) owing to the 'heavy growth of native vegetation, it became completely diffused. The water continued, however, to follow the slope of the country to the south and southeast toward the lands of the defendants and some of it reached these lands. None of the water ever reached the plaintiff’s land prior to 1915.

In 1900, a wooden flume was built to- carry the water from the canyon. The flume was at that time carried no farther than the former point of diffusion. The land at this point was cleared of the native vegetation and? placed under a state of cultivation. In 1905 or 1906, this wooden flume was extended to the public highway by the upper proprietors and by the county was continued by means of a culvert under the traveled portion of the highway which bounds the defendants’ lands on the north. In 1914, this wooden flume was replaced by one of concrete of somewhat increased dimensions. The latter fact, however, did not materially alter the situation, for the wooden flume was large enough to carry any stream which has ever followed the course described.

Between the years of 1905 or 1906 and 1914, the defendants erected and maintained an earthen dam by which they sought to protect themselves from the water discharged from the flume. This dam was erected on the highway south of the "point of discharge from the culvert, but north of the north line of the defendants’ property. It appears that in the years 1907, 1911, and 1914, which were the only years between 1905 or 1906 and 1915 in which any appreciable amount of water was carried in the flume, this earthen dam did not prevent the flow of the water over the defendants’ lands. In 1914, the defendants replaced the earthen dam with the structure here complained of, a substantial wooden affair five feet high and over three hundred feet long. This was built without the permission of the county authorities. This structure effectively turned the large volume of water carried by the flume following the heavy rains of 1915 and caused it to flow upon the lands of the plaintiff, where it occasioned the damage complained of.