Wallner v. Barry

RICHARDS, J.

This appeal is from a judgment in favor of the plaintiff and against the defendants in an action for damages caused by flood water along a stream upon the banks of which the plaintiff was a lower proprietor and the defendants were upper proprietors. The stream in question carries the water from what is known as Eagle Rock Valley in the northwestern part of the city of Los Angeles to a lower outlet. The defendants in the year 1923 were engaged in subdividing a tract of land lying along or near said stream, but found themselves unable to record their tract map without providing access to Glassell Avenue, sometimes called Eagle Rock Boulevard, which lies along the northwesterly side of the stream, the tract itself being upon the southeasterly side thereof, and the ordinances of the city of Los Angeles requiring provision for such access to a main avenue. The defendants accordingly acquired a strip of land fifty feet in width which would enable them to extend their most westerly street, Avenue Forty, northerly across the stream, thereby making contact with Glassell Avenue. It thus became necessary for them to construct a fill of said- width across the ravine of said stream and to provide a culvert therein for the passage of its water, and to construct a roadway along the top of the fill, thus making

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the required contact with Glassell Avenue. The defendants constructed such fill and culvert during the months of May and June of 1923 and thereupon submitted their map to the officials of the city of Los Angeles, together with an offer of dedication to the public use of all of the streets, avenues, drives, ways and walks of their said tract as shown upon such map. The city, upon the recommendation of the city engineer, at its meeting on October 11, 1923, adopted a resolution approving said map.. The propertof the plaintiff was located about five blocks below the location of said fill, abutting on the southwesterly side of the stream. On March 4, 1924, a heavy storm occurred in the region of Eagle. Bock and along the upper courses of said stream, causing a very considerable flood of water, amounting to a torrential flow, to collect and come down the stream, the extent and menace of which is set forth in a finding othe trial court reading as follows: "That on said 4th day of March, 1924, . . . and during and on account of the showers and fall of rain, aforesaid, a large body of water collected, and was caused and permitted to be impounded by defendants on said day, immediately above and back of said fill and embankment, and against and because of said fill and embankment; and while so collected and impounded in the place and time and manner aforesaid, said impounded water, being of great volume, weight and pressure, destroyed and swept away said fill and embankment, and then and there rushed down and along said storm drain ditch with great force and momentum to and over plaintiff’s said premises, and swept plaintiff’s house and home, which was then and theretofore occupying her said premises, from its foundations and into said ditch and into the current of said flood, whereupon water, thick with mud, silt, rubbish and filth flowed into and over said house, and over and upon plaintiff’s said household furniture, effects and personal property contained in said house.” On the day following said flood the plaintiff applied for relief from the immediate effects thereof to the city engineer, who with other officials and employees of the city went out and replaced the plaintiff’s house upon its foundations and thereupon secured from the plaintiff some sort of release for any liability which might have arisen as against the city on account of said flood. Later on the plaintiff commenced this action