Brown v. McAllister

Crockett, J., delivered the opinion of the Court:

The plaintiff owns a- house and lot situate on Clay street, in the City of San Francisco, upon a declivity, and the defendant is the owner of the next adjoining lot above that of the plaintiff; whilst still higher up the hill, and adjoining the defendant’s premises, is a lot occupied by Chinamen and others. The action is to recover damages for an alleged nuisance, resulting, as averred in the complaint, from' the defective drainage of the defendant’s lot, and from the leak-, age and overflowing of his privy vault and cesspool, whereby foul and offensive water flows upon the premises of the plaintiff, percolates through his walls, and has injured his building. On the trial there was evidence tending to show that a considerable portion of the damage to the plaintiff’s premises may have been and probably was caused by foul [576]and offensive water flowing from a Chinese hospital and cigar factory situate immediately contiguous to the defendant’s lot, and higher up the hill, and which, escaping across the defendant’s lot, found its way to the premises of the plaintiff, which are still further down the declivity. Under this state of facts it became necessary for the Court, in its charge to the jury, to define to what extent, if at all, the defendant was responsible for the damage to the plaintiff caused by the flow of the offensive water from the hospital and cigar factory across the premises of the defendant, and into and upon the premises of the plaintiff. In performing this duty the Court charged the jury, amongst other matters, that if “offensive and deleterious matter was cast on defendants’ land, whether by their own act or that of others, and by defendant allowed to remain, so that it afterward, through the falling rains and flowing waters caused thereby, became cast on plaintiff’s land, without his fault or negligence, the defendants were responsible for the damage caused thereby, as much so as though they had by their own acts taken such matter and cast it directly on the premises of the plaintiff.” And again, that where real property is situate on a declivity, “he who has the property above that of another, if injured by some third person above him, by water being cast on his lot impregnated with effluvia and offensive material, and omits to take needed steps to prevent the same from being thereafter cast upon the premises of the property holder below, is responsible for the consequences; for his first duty is to himself to have the injury redressed which he has suffered, and, if possible, prevent its occurrence; and his direct and immediate duty then follows, to take the needed steps to prevent injury arising therefrom to the property owner below him.” The defendants requested the Court to charge the jury that if the damage to the plaintiff was produced “by the natural flow of water from lands lying above the lot of the defendant, and that the defendant contributed in no respect to the flow of such water upon the plaintiff’s lot,” they should find for the defendant. This instruction was refused as asked, but was given with the following qualification added by the Court, to wit: “In connection with