McDaniel v. Cummings

Beatty, C. J. Defendant owns the west half of a certain section, No. 26, in Colusa County. Plaintiff owns land adjoining on the west. Still farther to the west, at a distance of about two miles from plaintiff’s land, the Sacramento River flows from north to south. The land next the river is the highest, there being a gradual descent from the river bank to and beyond the land of defendant. When the river rises above the level of its banks, — as it generally does several times during every rainy season, — the water flows off to the east or southeast across the land of plaintiff, and other lands similarly situated, to and across the land of defendant, and other lands in the same relative situation. It does not flow in any narrow or defined channel or channels, but in a broad sheet covering a wide surface. When the river falls below the level of the banks, the overflow cannot, of course, find its way directly back into the stream, and consequently the lands near the river are drained by the spread and flow of water toward the east and southeast, across the lower lands such as those of defendant. Left unobstructed in their natural and accustomed flow, these waters soon pass beyond the plaintiff’s lands, leaving them fit for cultivation.

But recently the defendant, without intending to in[517]jure the plaintiff, and acting upon the bona fide belief that he had the right so to do, commenced, and was proceeding to complete, a levee or embankment along his west line, the necessary effect of which will be to prevent the flood water from passing over his land, and to set it back upon the plaintiff’s land, causing it to cover a larger area thereof, and to remain thereon for a longer period, than it otherwise, would.

The plaintiff thereupon commenced this action to enjoin the defendant from erecting or maintaining said levee. A temporary injunction was issued upon the filing of the complaint. Afterward, on motion of the defendant, and upon affidavits showing the state of facts above set forth, the superior court dissolved the injunction, on the ground that the defendant in erecting and maintaining his levee was acting within and according to his rights.

From this order dissolving the injunction plaintiff appealed, and on September 12, 1889, an opinion was filed by this court reversing the order upon the authority of Ogburn v. Connor, 46 Cal. 346. A rehearing was subsequently granted upon petition filed on the part of the defendant, in which the correctness of the decision in Ogburn v. Connor is assailed, as is also the construction which we gave to section 801 of the Civil Code.