Bliss v. Johnson

California Supreme Court Jun 18, 1888 No. No. 11540Published

Before: Thornton

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Holding. The court held that a riparian owner may not obstruct the entire flow of a natural watercourse to protect their land from increased water volume caused by third parties, as such protection must be achieved through less restrictive means like embankments. Furthermore, the court affirmed the trial court's findings of fact and evidentiary rulings regarding the exclusion of photographs and witness testimony.

Issues

Whether a riparian owner may construct a dam that entirely obstructs a natural watercourse to prevent overflow caused by increased water volume from third-party diversions.
Whether the trial court erred in excluding photographic evidence and specific witness testimony.
Whether the trial court's findings of fact regarding the statute of limitations and the nature of the watercourse should be disturbed.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The plaintiff, being an owner of lands on Outside creek below the dam or obstruction put in by defendant which was complained of, had a right to the free flow of the water to his land without obstruction.”

“The defendant might, by embankments or levees on the side of the stream, have fully protected his land from injury, without interfering with the usual flow of water in the channel of the stream.”

“The judgment and order appealed from are affirmed.”

Synopsis

Evidence—Photographic Views — Error without Prejudice. —Photographic views are admissible as original evidence respecting the description of the premises in controversy; hut error in excluding them is without prejudice, when there is sufficient other evidence as to the topography involved in the inquiry.

Statute of Limitations—Appeal—Findings. — The defense of the statute of limitations is not available on appeal, when the court below finds the facts against the defendant.

Prescription—Obstruction of Watercourse.—A prescriptive right to obstruct a watercourse by means of a dam cannot he acquired by the owner of land merely through the action of water companies who conduct other water across his land with his consent for their own benefit, upon condition that they build the dam to prevent the water thus conducted from overflowing his land below. Such dam, being indispensable to the conduct of the water to the point of user, cannot be claimed by the owner of the land. When destroyed, he has no right to rebuild it so as to obstruct the natural watercourse.

Riparian Rights. — The owner of land on a natural watercourse has the right to the usual flow of the water without obstruction, and an owner above cannot, in protecting his own land from injury, cut off the water of the stream from flowing to the land of the owner below, by means of a dam. He must protect his land by embankments or levees on the side of the stream, without interfering with the flow of water in the channel.

The Court. This case was decided in Bank.

A rehearing was subsequently granted, and the cause has been again argued orally and upon paper.

Upon a careful examination of the record, we adhere to the conclusion reached in the former opinion.

We think the photographs offered were original evidence, and not secondary, as stated in the former opinion, and that their admission in evidence was proper; but when compared with the diagram which was admitted, we are of opinion, after studying the photographs in connection with the diagram and evidence, that defendant was in no wise injured by the exclusion of the former. As works of art, they are very creditable; as sources of information upon the pertinent questions involved, they have no appreciable value.

Upon the question of the statute of limitations, the court below found the facts against defendant.

The theory that defendant only consented that the People’s Ditch Company, Fowler, or the Kaweah, should run the water down Johnson’s slough to a given point, and then take it out and conduct it across his land, upon condition that they should build a dam and prevent it running upon his land below, loses most of its force when we realize that the ditch company was running the water for a practical purpose, and not merely for pleasure, and that to utilize the water for such purpose a conduit for its confinement was absolutely necessary. To give any particular-force to the assertion of Johnson that he insisted upon a dam being built, and would have constructed it himself if the company had not, we must suppose that the water company were thereby induced to do something which they would not otherwise have done, which, is not apparent here.

[602]It strikes us muck as would the claim of an individual to the ownership of a necessary railway bridge across a stream because he had given the right of way for the road across his land on condition that such stream should be bridged. As the bridge in the one case is a necessary integral part of the road, without which it could not be utilized, so in the other the dam ivas indispensable to the conduct of the water to the point of user.

The cause was tried by a court well versed in questions of this kind, and entirely competent to give weight to every proper consideration bearing upon the evidence, and we do not feel authorized to disturb its findings as to the facts.

Bliss v. Johnson

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