Meyers v. Jewish Consumptive & Ex-Patients Relief Ass'n

SCOTT (R. H.), J. pro tem. Plaintiff appeals from an adverse judgment in a suit brought by him against defendant corporation and two of its employees.

Defendant corporation in the year 1938 maintained its buildings and grounds on the top of a hill overlooking the premises occupied by plaintiff. On March 2, 1938, excessive rainfall amounting to 5.88 inches fell in twenty-four hours, and flood waters running down the hill damaged the house and the personal property of plaintiff. It appeared that plaintiff had one-sixtieth interest in the real property, evidenced by a quitclaim deed for which the owner testified she had received not more than five dollars. The personal property was largely old magazines and newspapers.

Plaintiff attributed the flood damage to acts of defendants which he claimed diverted onto the premises oecu[235]pied by him an excessive flow of surface waters, and asked damages therefor and an injunction against further such acts. During the trial the judge inspected the property in question and credible testimony was introduced to show that the acts of defendants and the improvements made by them had actually lessened rather than increased the flow of water in the direction of the land occupied by plaintiff. The trial court properly found upon ample evidence that defendants did not divert water upon the land of plaintiff, and that any such flow of water was the result of the heavy rainfall and flood and was an act of God and not of the defendants. Pursuant to such finding the trial court concluded that plaintiff was not entitled to damages nor to an injunction restraining defendants from doing acts which it appeared they had neither done nor contemplated doing.

In view of our determination as to the sufficiency of the evidence no other questions raised by plaintiff on this appeal require discussion.

Judgment affirmed.

Wood, Acting P. J., and McComb, J., concurred.