Barnes v. Marshall

Foote, C. — An action for the removal of a nuisance, and for a perpetual injunction against the erecting or maintaining thereof.

[570]The defendant had judgment in his favor and for costs, and the plaintiff appeals upon the judgment roll alone.

All the issues raised by the pleadings were passed upon by the findings, although in some respects the latter might have been expressed with more perspicuity.

By them it becomes apparent that the plaintiff and defendant own separate parcels of land, lying opposite to each other on the banks of the Russian River in Sonoma County, the river being the common boundary between the two.

For some years prior to 1879, the river had been washing off portions of its bank lying upon the defendant’s land. At a certain point on said land the stream having, as it were, slowly eaten into and carried off a portion of its bank on defendant’s front, was threatening to cut a new channel through his land, which would have eventuated in the carrying off of some acres thereof. To prevent this, the defendant built a bulkhead on his own land, which was carried away, in the main, by a flood. He then, in October, 1880, constructed another slightly nearer the river, and again this was partially destroyed by the floods of the succeeding winter, and in the washing out caused thereby, quite a pool of water was formed in and upon the defendant’s land, almost as deep as the bottom of the river, which at low stages thereof remains full of still water. Upon the subsidence of the floods, the river returned to its former channel, a pool of water remaining at the place where the bank and the spiling of the bulkhead had been washed away.

In October, 1881, the defendant again built a bulkhead of the same character as the one previously erected, commencing it with the upper end of the part of the old one still remaining, and running it in such a way as to carry it through the pond above mentioned, and some fifteen or twenty feet back of the former bulkhead, and continued by running it through an excavation of his high bank.

[571]The last bulkhead is not quite so high as the former, and is somewhat lower than his original bank (now washed off) as it stood in 1879.