Milick v. Baker

SHEPARD, J. This is an appeal from a judgment ordering removal of certain encroachments placed in a watercourse by each party and denying damages to either.

The Controversy

Plaintiff’s complaint alleges that a certain watercourse or ravine bed lies entirely on defendant’s lot; that defendant obstructed the watercourse, causing diversion of water onto plaintiff’s lot to plaintiff’s damage. A second count was pleaded in the form of quiet title, but defendant denied any claim to plaintiff’s lot and no controversy developed with respect thereto on trial. Defendant filed a cross-complaint, alleging that said water course is partly on plaintiff’s lot and partly on defendant’s lot; that plaintiff obstructed said water course, diverting water onto defendant’s lot to defendant’s damage.

Facts

While there is some conflict in the evidence, it is amply sufficient to support the following statement of facts: Each party owns a lot about 150 feet square on the south side of Springfield Street near its intersection with Oriole Street in the City of San Diego. Plaintiff’s lot lies immediately adjacent to and west of defendant’s lot. The topographic map of the City of San Diego which is in evidence shows that the drainage area served by the ravine before it reaches the lots of the parties is comparatively small, being roughly 1,000 to 1,200 feet long by 700 or 800 feet wide. Springfield Street runs across the ravine on a raised artificial embankment underneath which the city constructed a culvert a short distance east of Oriole Street, which carries the water accumulated in the drainage area from the occasional storms that visit San Diego.

Harry G. Horn, a civil engineer employed by the City of San Diego for 13 years immediately preceding trial of this action, and who was head of the drainage design section in 1957 and 1958 when this dispute arose, testified that prior [725]to the time either party placed the encroachments complained of, he walked up the ravine bed across the two lots, inspecting it on an entirely different matter; that later he was approached by both parties asking his opinion regarding the dispute and thereafter he went up the ravine bed four or five times and saw the encroachments in place. He testified that the ravine, while somewhat precipitous in the area north of Springfield Street, broadened to a comparatively flat plain 40 to 50 feet wide through the two lots and that the thread of the stream was on the west side thereof; that the thread of the stream entered the lot of plaintiff about 15 feet north of the southeast corner of said lot and emerged from the south line about 10 feet west of said corner; that he gave this as his opinion to both parties prior to the commencement of this action, hoping to settle their difficulties; that after his first inspection he saw the obstructions complained of and that each obstruction had a tendency to divert water onto the other party’s lot. The testimony of some witnesses conflicted and others agreed with his testimony that the thread of the natural stream crossed the corner of plaintiff’s lot. The trial judge, shortly after the commencement of the trial, personally inspected the disputed portion of the ravine. The evidence showed that prior to the commencement of the action, near the point where the culvert existed under Springfield Street, defendant encroached on the stream bed with some fill protected by a piece of sheet iron in an effort to prevent the flow from said culvert cutting into his lot. Lower down, he constructed a driveway from his house to the street and put a culvert underneath it for drainage. A short distance downstream from the culvert he put more earth fill and rubble into the stream bed which had a tendency to divert the water toward plaintiff’s lot. Plaintiff in turn built a concrete wall some distance north and some distance west from the southeast corner of his lot, which also obstructed the stream bed and had a tendency to force the water back onto defendant’s lot.