Geurkink v. City of Petaluma

Garoutte, J. — This is an action for a permanent injunction against the city of Petaluma, brought by two owners of lots abutting upon Eighth and G streets of that city, respectively. Belief was denied them in the trial court, and this appeal comes to us from the judgment, and also from an order denying a motion for a new trial.

The facts material to a consideration of this question may be succinctly stated as follows: Edwards creek has been from time immemorial a natural water channel" passing over Eighth street, and thence across the city to tide water. Some few years past, the city blocked the channel of this stream where it crossed Eighth street, and attempted to take cafe of its waters by a sewer leading from this point down F street. During heavy rains this sewer proved entirely inadequate to carry the waters coming from the mountains via this stream, and F street was flooded as the result, the natural fall of the land tending that way. The plaintiffs’ property was situated a block or more distant and east from the point of obstruction, Geurkink’s lot being upon Eighth street and facing north, and the lot of his coplaintiff facing east upon G street. The land covered by Eighth street between F and G streets was higher than at the point where the sewer connected with the stream, and, if any water ever did pass over Eighth street to G street prior to the time when the work of the city here complained of was inaugurated, the amount was slight, for, as we have seen, the lay of the land forced it north down F street.

Under the conditions just stated the city of Petaluma, by its board of trustees, adopted a scheme to take care of the waters coining from this creek which could not be carried away by the aforesaid sewer. This scheme included the enlargement of a culvert at F and Eighth streets, the digging of a large gutter or channel upon [308]the south side of Eighth street to G street, a culvert across Eighth street at this point, and a gutter channel down G street upon the west side thereof to Seventh street. The work mapped out by this scheme was in. active operation when the plaintiffs began the present litigation, and a temporary restraining order was issued. These facts cannot be disputed by the record, and neither can it be successfully disputed that, from the evidence, .the completion of the scheme would result in great damage to plaintiffs’ property.

The facts being plainly outlined before us, the application of the law to these facts is not difficult, and, at the outset of this investigation, it must be borne in mind that the principles of law appertaining to waters in natural channels are different to a considerable degree-from those applicable to the control of surface waters. That a city has much greater powers and less liabilities respecting surface waters than it has respecting highways of natural channels cannot be questioned. Reduced to its smallest compass, the fact is that the city of Petaluma is engaged in changing the natural course of the waters of Edwards creek, and such change, if made, will damage the property of these plaintiffs' by preventing a free use of the same. Is defendant liable for such action upon its part, and is the proceeding of injunction by a court of equity the proper remedy? When this work has. been completed, and the damage actually done, there can be no question but that a remedy at law for such damages could be invoked. Abutting owners have a right to the full use of the street for the purpose of coming and going to and from their property, and any unlawful interference with that use is a trespass upon the rights of such owners, whether that interference be occasioned by an individual, a corporation, or the municipality itself.