Lampe v. City & County of San Francisco

COOPER, C. Action to recover damages from defendant. Demurrer sustained to complaint. Plaintiff declined to amend and judgment was entered for defendant. This appeal is from the judgment. The complaint, after alleging that defendant is a municipal corporation, states that defendant, in accordance with law, established the official grade of Sanchez street, between Liberty and Twenty-first streets, and thereafter proceeded to fill in and raise said Sanchez street about five feet above its natural and original grade, and about five feet above the natural level of plaintiff’s lot, thus causing an embankment about five feet high in front of the lot of plaintiff. It is stated in said complaint:

“That by reason of said embankment so raised in said street, the natural flow of the surface and other waters from plaintiff’s Hot is impeded, and the waters from the premises above and adjoining plaintiff’s said premises flow upon plaintiff’s afore[547]said lot; that by reason thereof the basement of plaintiff’s said dwelling has become, and remains, damp and unwholesome, and the water does not flow off as freely as it had done prior to the grading of said street, but accumulates on plaintiff’s said lot, and the heaíthfulness and comfort of said house and premises as a dwelling has been greatly impaired, to plaintiff’s great injury and damage.”

The complaint further alleges damage by reason of a sewer and foul odors therefrom. The demurrer was upon three grounds: 1. That the complaint does not state facts sufficient to constitute a cause of action; 2. That it is ambiguous, uncertain, et cetera; and 3. That there is a misjoinder of causes of action united in the same count, and not separately stated. Counsel for appellant, in their brief, say that no damage is claimed and no relief is asked on account of the sewer, and that the allegations of the complaint as to the sewer may be treated as surplusage. We will, in discussing the case, adopt this view, and thus the only question left is as to whether or not the complaint states facts sufficient to constitute a cause of action. The portion of the complaint before quoted is the material part. As we understand it, damages are claimed because the grading of the street, which is the property of defendant, prevents the surface water from flowing off the lands of the plaintiff and onto the lands of defendant as it had been wont to flow. The question is as to whether or not defendant is liable for damages caused by the obstruction of the flow of surface waters from the lands of plaintiff, occasioned by the necessary0 and lawful grading of defendant’s street in front of plaintiff’s said lands. Upon the solution of this question depends the result as to whether or not this judgment shall he affirmed. In 2 Dillon on Municipal Corporations, section 1039, the rule is stated: “As to surface water, quite different principles apply. This the law very largely regards (as Lord Tenterden, in an analogous case, phrased it) as a common enemy which every proprietor may fight or get rid of as best he may. The reports contain many instances in which it has been sought to make municipal corporations liable for damages caused in various ways by surface water to private property. Eeference will first be made to cases in which the work of grading or improve