Montgomery v. Locke

California Supreme Court Feb 19, 1887 No. No. 9740Published

Before: Searls

AI Brief

AI-generated · verify before citing

Holding. The court affirmed the judgment against the defendants, holding that the jury's verdict on conflicting evidence regarding the construction of the levee and the plaintiff's alleged consent was conclusive. The court further held that the defendants failed to properly plead a prescriptive right to maintain the levee.

Issues

Whether the defendants' construction of a levee that caused water to flow onto the plaintiff's land created liability.
Whether the defendants sufficiently pleaded a prescriptive right to maintain the levee.
Whether the trial court erred in its admission of testimony regarding damages to fruit-bearing trees.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Had defendants pleaded a prescriptive right to maintain levee No. l,the contention of appellants would have force, but no such plea is found in their answer.”

“the jury having passed upon all these questions of fact, their verdict concludes the defendants.”

“We see no error in the giving or refusal to give instructions calling, for a reversal, and are of opinion the judgment and order appealed from should be affirmed.”

Synopsis

Appeal from a judgment of the Superior Court of San Joaquin County, and from an order refusing a new trial.

The action was brought to recover damages for injuries caused to the land and fruit-trees of the plaintiff, by reason of an overflow of water produced by certain levees constructed and maintained by the defendants. The further facts are stated in the opinion.

Searls, C. This cause was decided in an opinion filed August 30, 1886. (11 Pac. Rep. 874.) A reargument in Bank was ordered, and it is again brought under review.

It is submitted by appellants that the former opinion shows a misapprehension of important facts when it [76]states that levee No. 1 was built by defendants in 1879 or 1880.

Levee No. 1 was originally constructed many years prior to 1879, but having been repeatedly broken by action of water, was in 1879 practically incapable of restraining the flow of water, until such portions of it as had been destroyed were rebuilt; such portions were rebuilt by defendants in the winter of 1879-80.

We did not deem it important whether they built a new levee or rebuilt an old one, so long as their acts resulted in flowing the water back upon plaintiff.

Had defendants pleaded a prescriptive right to maintain levee No. l,the contention of appellants would have force, but no such plea is found in their answer.

It is true the answer avers that “ the levee first set out in plaintiff’s second count (levee No. 1) was erected more than twenty years before the commencement of the action,” and that all the levees upon the lands of defendants were built, and have been maintained, with the knowledge and consent of plaintiff, etc.

An adverse possession or prescription, as it is termed when applied to an easement, may, under our system of practice, be pleaded either by reference to the statute as provided by section 458 of the Code of Civil Procedure, or by stating at length the facts showing that the user commenced and continued under a claim of right, was peaceable, without interruption, open, notorious, and exclusive, and maintained with the knowledge of the plaintiff, etc.

It was in this view of the case that we deemed the facts in reference to the old levee unimportant.

The complaint contains two causes of action, based upon different theories: —

1. A cause of action against the defendants for constructing a levee across a natural stream, whereby the water was turned back upon the land of plaintiff. ■

2. A cause -of action based upon the theory that de[77]

Montgomery v. Locke

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief