Thornton, J., dissenting. I dissent from the conclusion reached in the foregoing opinion, and from the opinion, except that portion of it which agrees with the opinion formerly drawn up by me in this cause. I see no cause to change the views expressed by me in the opinion just referred to, and adopt it as my opinion herein.
I will add, that in my view the contradictory findings referred to in the opinion of Justice McFarland relate to matters which are not material to a proper decision of the cause.
The following is the opinion of Department Two, rendered on the 28th of June, 1888, and adopted in part by the court in Bank:—
Thornton, J. This action was brought to recover damage alleged to have been caused by defendants to plaintiffs’ grain crops, and for the abatement of nuisances averred to have been produced and maintained by defendants.
[463]The plaintiffs aver in their complaint that they are the owners of certain lands situate in the county of San Joaquin (describing them), and that there is to the northeast of these lands a stream or slough known as Stone Slough or Bear Creek, which carries in the rainy season a large body of water running in a southwesterly direction; that this stream, at a point easterly from said land, connects with a canal or ditch which was constructed by defendant Christian and others; that the canal carries the waters of Stone Slough or Bear Creek in a westerly direction to certain natural sloughs on the south side of the canal, which are of sufficient size, if unobstructed, to take and carry the waters running down this canal off and away from the lands of plaintiffs, or that this canal runs past and by the natural sloughs above mentioned westerly to a point known as the Davis road, at which place there was, on April, 1876, thrown across the canal a levee or embankment in part built by the plaintiffs, and was sufficient to protect all of plaintiffs’ lands described in the complaint from overflow by the waters of Stone Slough or Bear Creek, and did protect them until it was cut away, and the natural sloughs aforementioned connecting with the canal were obstructed by the acts of defendants.
It is then averred that the defendants, without right and against the protest of plaintiffs, cut away the embankment, and filled up and obstructed the sloughs above mentioned on the south side of the canal. In consequence of the removal of the embankment and the obstruction put in in the months of January and February, 1878, the waters of Stone Slough came down the canal, flowed over and submerged plaintiffs’ lands, remained there a long space of time, and completely drowned out, rotted, and destroyed the grain growing on the lands, and otherwise injured them.
It is further averred that the obstructions above referred to were kept up and maintained by defendants, [464]and that the embankment was never rebuilt after its destruction.
It is further averred that the obstructions above referred to, so kept up and maintained by defendants* in the natural sloughs mentioned, are an obstruction to the free use and enjoyment of plaintiffs’ property, and are a nuisance; that the removal of the embankment prevents plaintiffs from the free use and enjoyment of their property, and is a nuisance.
The findings of the court cover all the issues, and as a conclusion of law the court holds that the matters complained of were not nuisances, and rendered judgment for defendants.
It is urged now on behalf of respondents, that the judgment ought not to be disturbed, for the reason that the demurrer to the complaint should have been sustained. It is said that the suit is a bill in equity to abate the alleged nuisances by mandatory injunction, to which the statute (Code Civ. Proc., sec. 731) annexes as an incident the right to recover damages; and that the matters averred in the complaint are not sufficient to show a right in the plaintiffs to resort to a conrt of equity for relief.
Without entering into the particular reasons urged by respondents why the demurrer should have been sustained, we think it enough to say that in our opinion this question was determined adversely to their contention when this cause was here on a former appeal. (See 67 Cal. 41.) It was there held that this was a case in equity. This conclusion could not have been reached without holding the facts averred in the complaint to have been sufficient to give a court of equity jurisdiction; and where, on an appeal to this court, the judgment announced could not have been rendered without expressly or impliedly deciding the questions presented on a second appeal, the judgment will be conclusive, and such questions will not be again considered. (Forgerson v. Smith, [465104] Ind. 246.) The conclusion thus reached constitutes the law of the case in all its stages.
It is contended by appellants that the findings do not support the judgment.
The court found that the obstruction in the natural sloughs is not an obstruction to the free use of plaintiffs’ property, and does not interfere with the enjoyment thereof; and that the removal of the embankment across the canal in the Davis road did not prevent the free use and enjoyment by plaintiffs of their property. It also found, as conclusions of law, that the acts complained of are not nuisances.
The principal question in the case is, whether the facts found show any nuisance done, committed, or maintained by the defendants.
The following facts are found: That in the month of April, 1876, the plaintiffs filled the canal with the embankment mentioned, — which was in the following December cut away and removed by the defendants; that the defendant Christian, long prior to December, 1876, obstructed the natural sloughs on the south side of the canal, and maintained and kept them in place until the commencement of this action; that the embankment in the canal at the Davis road did not protect, and would not have protected if it had remained in place, all or any part cf lands of plaintiffs from overflow by the waters of Stone Slough in the months of January or February, 1878, and it would not have protected such lands from overflow from these waters, although the obstruction to the natural sloughs to the east of the embankment on Christian's land had not existed during the months aforesaid.
■It is further found that in the months of January and February, 1878, some of the waters of Stone Slough reached the head of the canal at its junction with the slough (referring to the slough on the south side of the canal), and a part of those waters flowed down the canal, [466]and of the waters so flowing down, a part flowed upon the lands of the plaintiffs; that in the months aforesaid the lands of the plaintiffs were submerged, but' the waters of Stone Slough, which at that time came down said canal, did not materially contribute to said submersion, or materially contribute to the injury, damage, and loss which the plaintiffs and their property sustained by reason of this submersion, and the plaintiffs were not damaged by the waters then diverted by this canal in any way or manner stated in the complaint, or to any extent greater than the sum of one dollar; that none of the waters diverted by the canal would have flowed upon the plaintiffs’ lands if allowed without interruption to take their natural southwest course to the river, and the embankments on the south side of the canal on Christian’s and other lands cause waters to flow upon plaintiffs’ lands which would not flow there if the embankments were removed; that except to the immaterial extent stated above, the overflow of the lands of plaintiffs in January and February, 1878, and the damage therefrom, were caused by waters which did not come down the canal, but which came from other sources, and were the predominant and proximate cause of said overflow, and the damage sustained by plaintiffs at the time; that at the commencement of this action the obstruction in the natural sloughs mentioned above was not maintained or kept up by the defendants Castle and Williams, or either of them.
We conclude from the facts found as above that the removal of the embankment across the canal did not prevent the plaintiffs from the free use and enjoyment of their property; as the court below came to the conclusion and found that this embankment did not protect, and would not have protected if it had remained in place, all or any part of the lands of plaintiffs from overflow in January or February, 1878, and it would have afforded no protection from overflow, though there had [467]been at that time no obstructions to the sloughs on Christian’s lands. We cannot perceive how its removal prevented the free use and enjoyment by the plaintiffs of their property.
The facts found do, in our opinion, sustain the conclusion that the removal of the embankment was not and produced no nuisance.
As to the obstructions to the sloughs on Christian’s land, it appears, as set forth above, that some of the waters which came down the canal did contribute to the submersion of the lands of plaintiffs; that obstructions or embankments to the sloughs erected by Christian on the south side of the canal, with other embankments on other lands, did cause water to flow upon plaintiffs’ lands which would not flow there if the embankments were removed; and that none of the waters diverted by the canal would have flowed on plaintiffs’ lands if allowed without interruption to take their natural southwest course to the river. The court does also find that the water which came from Stone Slough through the canal did not materially contribute to the submersion, or materially contribute to the damage or loss to plaintiffs’ property sustained by the submersion, and that plaintiffs were not damaged by the waters diverted in any manner stated in the complaint, or to any extent greater than in the sum of one dollar.
There is, in fact, no finding that the land has been damaged within the issue made by the complaint at all. The damage is plainly negatived in the finding that plaintiffs were not damaged in any way or manner stated in the complaint.
The finding of one dollar damage we regard as something outside of the case. The court having already disposed of the issue of damage raised by the pleadings, and having held that there was no such damage, anything additional on such issue must be looked on as something outside of it, and therefore to be disregarded.
[468]Or, if we regard it as a finding that the land was damaged to the extent of one dollar, it must be that the court below looked on it as a damage resulting from unforeseen causes, as from an extraordinary flood which could not be anticipated, for which there would be no responsibility by Christian,—at any rate, no such responsibility as would render him liable to an injunction.
For the foregoing reasons, we cannot concur in the contention that the judgment is not supported by the findings.
The court is of opinion that the acquiescence of Tolland did not constitute a defense to the action of plaintiffs for an injunction, if they were otherwise entitled to one, and that the findings as to such acquiescence, in the view this-court takes of the cause, are immaterial.
On an examination of the evidence, the court is of opinion that the findings are justified by it.
The judgment and order must be affirmed.
So ordered.
McFarland, J., and Sharpstein, J., concurred.