County of Yolo v. City of Sacramento

By the Court, Sanderson, J. : The case comes here upon demurrer to the complaint, which was sustained in the Court below, with leave to amend. The plaintiff elected not to amend, and accordingly final judgment passed for the defendant.

The plaintiff sues to abate an alleged nuisance, and to [194]recover damages sustained by reason thereof. The complaint shows that on the first of February, 1866, the plaintiff became possessed of a large tract of swamp and overflowed land, known as Swamp Land District Humber Eighteen, bordering on the west bank of the Sacramento Diver, which it holds in trust for the purpose of reclamation, under a grant from the State; that, for the purpose of reclaiming said land and preventing its overflow by the Sacramento. Diver, the plaintiff, prior to the acts complained of, had built levees along the bank of the river within the limits of said swamp land district; that the Sacramento Diver is navigable and a public highway within the limits of said swamp land district; that the defendant, well knowing the premises, in March, 1866, by its agents, acting under the direction of its corporate authorities, entered upon said swamp land district and erected a wingdam on the bed of said river, extending from the west bank thereof; that, by reason of the wingdam, the waters of the river have been diverted from their usual course, and the current thereof so changed as to cause the washing away and destruction of a great portion of the plaintiff’s levees, to its damage, in the sum of five thousand dollars; that, by reason of the diversion of the water from its natural channel or flow, the navigation of the river on the west side thereof is wholly obstructed. The prayer is, that the defendant be required to abate the dam, and that the plaintiff have judgment for damages in the sum of five thousand dollars.

The grounds of demurrer are: First, that the facts do not constitute a cause of action; Second, that the District Courts have no jurisdiction in cases of nuisance; Third, that nuisance and damages cannot be united in the same action; Fourth, that separate causes of action are not separately stated; Fifth, that the complaint is ambiguous, unintelligible, and uncertain.

Of the particular grounds upon which the Court below based its judgment we are not advised, either by the record or by counsel. Counsel for the respondent sustain the judg[195]