Hall v. Burrows

PEEK, J. The present controversy arose out of defendant’s forceful use of a portion of plaintiffs’ land for the purpose of draining defendant’s land. At the conclusion of the trial the court found in favor of defendant and it is from the judgment entered pursuant thereto and from the order denying the motion for a new trial that plaintiffs have now appealed.

Plaintiffs and defendant are adjoining landowners, having acquired their properties in 1945. In 1930 their predecessors in interest executed an agreement for the construction and maintenance of a jointly owned irrigation system. As a part of the plan defendant’s predecessors conveyed in fee to plaintiffs’ predecessors a 40-foot strip beginning at the Sacramento River on the west and extending easterly across the southerly end of defendant’s land, and continuing for a short distance on to plaintiffs' property. On this strip .an irrigation canal with parallel borrow pits was constructed. At that time the upper portion of defendant’s land was rough, had never been irrigated and contained a pond-like depression. In 1942 Reclamation District 70 built a drainage ditch extending from the pond easterly across the property line and thence running southerly through plaintiffs’ land, eventually emptying into a drainage ditch likewise constructed by the district. There was no grant of right of way for this ditch and apparently it had never carried any water. In 1945 defendant leveled his land, filling in the pond and the drain which led to plaintiffs’ land. Thereafter plaintiffs likewise filled that portion of the drain on their property. The defendant, in leveling his land, graded it to the southeast corner of his property. At the outset of defendant’s farming of his property no irrigated crops were grown. However, since 1947 he has grown irrigated crops on his land, draining the excess runoff from such irrigation into the said borrow pit.

On plaintiffs’ land at a point approximately 50 feet south of said borrow pit there is a drainage ditch built by said reclamation district. The borrow pit is connected to such ditch by means of a 24-foot pipe which was purchased and paid for by plaintiffs but was installed by the district. In 1947 the defendant admittedly came upon plaintiffs’ land without permission, and excavated a drainage canal or ditch approximately 2 feet deep and 3% feet wide along the course of the old borrow pit from the southwest corner of the plaintiffs’ property to the drain pipe.

[196]Thereafter plaintiffs’ action was instituted alleging that defendant, unless restrained, would continue to trespass upon plaintiffs’ land and occupy the same for drainage purposes. It was also alleged that plaintiffs had suffered certain damages. Their prayer requested that defendant be restrained and enjoined from so using plaintiffs’ land. The question of damages, however, has since been waived.