Drew v. Cole

HAYNES, C. Plaintiff appeals from the judgment and an order denying his motion for a new trial. The action was brought to enjoin defendants from constructing a bulkhead or embankment by which, it is alleged, certain waters would be turned upon plaintiff’s premises, to his injury. Defendants answered, and also filed a cross-complaint, seeking affirmative relief against the plaintiff. The findings of the court, upon all the issues, were in favor of defendants. The locus of the controversy is upon a subdivided portion of the San Bernardino ranch, northwesterly from the city of Redlands. Colton avenue runs east and west .and California street crosses the avenue at right angles. The plaintiff’s land lies on the north side of Colton avenue, and .the land of defendants, Cole and Hicks, on the south side. California street is the east boundary of the land .of the plaintiff and of defendant Hicks, and defendant Cole’s land adjoins Mrs. Hicks’ land on the west. The Adams or La Pierce land, mentioned in the testimony, lies on the south side of Colton avenue, and is separated from Mrs. Hicks’ land by California street, and the land of William Curtis, mentioned in the testimony, lies on the west side of California street, and adjoins the land of defendant Hicks on the south. The lands of plaintiff and defendants, Cole and Hicks, are highly cultivated, and planted in orange, lemon, and other fruit trees and vines. The complaint alleges “That to the southeast of plaintiff’s premises is a large section of country comprising what is known as the ‘Old Barton Ranch’ and ‘Redlands,’ all of which is cultivated and irrigated; and since the cultivation and irrigation of the same, and during heavy storms of rain, the water flows down from the same to the southeast corner of plaintiff’s land, and has cut itself a channel down through said Colton avenue, running westward along plaintiff’s south line, but outside and south of plaintiff’s improvements, and is flowing thereon in greater or less quantities at different times.” The complaint then charges that defendants are proceeding to build a bulkhead across Colton avenue, on the line of California street, for the purpose of preventing the water from passing down Colton avenue, and compelling it to pass over plaintiff’s premises, to the great injury of Ms orchards and improvements, by cutting chan[767]neis, etc. The answer alleges that during storms of rain, from time immemorial, the water has naturally flowed from the section of country mentioned in the complaint, in a northwesterly direction, to the southeast corner of plaintiff’s land, and would still naturally flow in the same direction, upon and across plaintiff’s premises, but for a dam or embankment constructed by plaintiff in the spring of 1890 ■across the natural course of said water, whereby it was diverted, and caused to flow down Colton avenue and over the defendant’s lands; that the construction of the embankment being built by them, and the construction of which plaintiff seeks to enjoin, was necessary to prevent the diversion caused by plaintiff, and to protect their premises. Defendants’ cross-complaint repeats these allegations, alleges ■that plaintiff threatens and- intends to maintain his dam, and prays for an injunction, and that the dam may be abated as a nuisance. Plaintiff’s answer to the cross-complaint denies specifically the material averments thereof, and alleges that about 1887, owing to the cultivation of the land lying <to the southeast, large bodies of water were accumulated thereon for the purposes of irrigation, and ditches and canals Avere constructed; that by natural and artificial causes, over which he had no control, the conformation of the country lying southeasterly from his premises was so changed that ancient channels were obliterated, and new channels ■created, “and that the water since then coming through said channels will, if unobstructed, discharge itself over and through the place of William Curtis and the defendants in a northwest direction, and on through and over Colton avenue a long distance west of the southeast corner of his place’’; and further alleges that defendants so graded California street, and constructed an embankment along the easterly side of said street, as to prevent the water from flowing as it otherwise would across their land, and that, if the water was permitted to flow as it naturally would across their land, the quantity would be insufficient to injure them. The court found (1) that all the matters and things stated in (defendants’ answer are true; (2) that plaintiff did, in the year 1890, erect a dam at the southeast corner of his land, with the intent and to the effect of diverting all of the water which flowed to said corner of his land through the natural