Green v. Swift

By the Court, Wallace, C. J.: The plaintiffs are owners of certain premises situate upon the western bank of the Sacramento river, in the county of Tolo. The American river is a comparatively short stream, having its sources at a high altitude in the mountains, and running at a generally steep grade to the point of its confluence with the Sacramento river on the eastern shore of the latter river; and prior to the year 1862 the point of confluence was to the southerly of the premises of the plaintiffs. In periods of protracted rain storms it rises much more rapidly than the Sacramento river does, but the force of its current, at its point of confluence with the latter river, was somewhat controlled by the circuitous natural channel it followed in approaching the latter river, and the premises of the plaintiff, being situate on the Tolo shore considera[539]bly to the northward of the point where the American river emptied into the Sacramento river, were not injured by the current of the former river. But in its sweep to the southward on the Sacramento shore, and before debouching into the Sacramento river, the volume and violence of the American river in protracted rain-storms was so great as to imperil the safety of the city of Sacramento, of which city it formed one of the corporate limits; and to provide security against its threatened overflow, an Act of the Legislature was passed in April, 1862, (p. 151), by which the defendants Swift, Crocker, Knox and Holmes were constituted a Board of “ City Levee Commissioners,” and empowered “ to turn or straighten the channel of any portion of the American river deemed necessary for the protection of the city.” The Board and the defendants, Rooney and Johnson, employed by the Board as contractors to do the work, straightened the channel of the American river, making it approach the Sacramento river directly and at right angles, and thereby accelerating its current in emptying into the latter stream. The point of debouchment into the Sacramento river was by this means changed from below to above, and nearly opposite to the premises of plaintiffs, on the Tolo shore, and in December, 1867, the waters of the American river poured into and across the channel of the Sacramento river, upon and against the premises of the plaintiffs, on the opposite- shore, with such force and volume as to wash away land and improvements thereon, and destroy hogs, cattle and other property to the value of several thousand dollars, and this action is brought to recover of the defendants the damages sustained by the plaintiffs in the premises, and the latter, having been nonsuited at the trial, bring this appeal.