Durfee v. Garvey

Belcher, C. C. The plaintiff and defendant are owners of adjacent tracts of land in Los Angeles County, the defendant’s land lying to the southwest of the plaintiff’s. Plaintiff’s land is nearly level, and a large portion of it is swampy, and unfit for cultivation without artificial drainage. It has a slight inclination toward the southwest, and commencing on defendant’s land, about six or seven hundred yards from plaintiff's line, is a well-defined channel, called the Arroyo Honda, which leads off to the southwest. From plaintiff’s line to this arroyo was a slight depression, through which, about the year 1870, the then owner of a part of plaintiff’s land, with the consent of the then owner of defendant’s land, constructed a ditch some three feet deep, and three feet wide at the top. Leading to this ditch other ditches were constructed around and through plaintiff’s land, and when all of these ditches were clear and unobstructed, the land was drained so that it could be cultivated, and good crops raised upon it. Grasses and weeds grew up quickly in the ditch leading to the arroyo, and up to 1882 plaintiff was accustomed to clean out this ditch at least twice [548]every year, no one objecting to his doing so. Prior to 1882 a part of defendant’s land was cultivated, but in that year he ceased to cultivate it, and has since used it only for pasturing stock. He has kept on it horses, mules, and cattle, and these animals, by feeding along the ditch, and frequently passing over it, have broken in its sides, and have thereby filled it up and obstructed the flow of water through it. This obstruction interfered with the drainage of plaintiff’s land, and prevented his cultivating twenty to twenty-five acres of it, on which he could otherwise have raised good crops.

In 1885, and again in 1886, defendant’s cattle broke into plaintiff’s inclosure and damaged his growing crops.

Plaintiff brought this action to recover damages for the alleged wrongs above recited, and in the first count of his complaint he asked damages in the sum of four hundred dollars, and in the second in the sum of six hundred dollars.

Under the instructions of the court, the jury found that the plaintiff was damaged by the obstruction of his drainage in the sum of $150, and by the trespasses of defendant’s cattle in the sum of $210, and for these aggregate sums judgment was entered. The defendant moved for a new trial, and has appealed from the judgment and order denying his motion.