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District Court of Appeal, Second District, Division 3, California.

WOO et al. v. MARTZ et al.

Civ. 14924.

Decided: December 28, 1945

John A. Jorgenson, of Los Angeles, for appellants. Cushman & Paul, of Los Angeles, for respondents.

Plaintiffs brought this action to require the removal of an embankment on defendants' land, which embankment they allege caused surface waters to flow upon and destroy plaintiffs' crops; and for damages in the sum of $12,400, which they allege was the value of the crops destroyed. Defendants filed a cross-complaint to require plaintiffs to remove an embankment erected by them which defendants allege diverted surface waters onto the land of defendants; and for damages in the sum of $822, which they allege was the value of fertilizer washed away by the waters, repair work made necessary by the waters flowing upon their land, and loss sustained as the result of delayed planting. Judgment was that plaintiffs take nothing; that cross-complaints have judgment for $310.50; and that cross-defendants remove the embankment erected by them. Plaintiffs appeal from said judgment.

Plaintiffs are lessees of land owned by Raymond R. Hails. Hails' and defendants' lands adjoin, Hails owning the easterly and defendants the westerly tract. Both tracts of land are bounded on the north by Del Amo Street. The land north of Del Amo Street, in this vicinity, is rolling and generally higher than the land of Hails and defendants. The mouth of a valley is directly north of Hails' land, and after heavy rains surface waters from the mouth of the valley flowed in their natural course upon the lands south of Del Amo Street. About 1924, one Marconi, then a tenant of the land now owned by Hails, built an embankment on Del Amo Street and along the north boundary line of Hails' land. At the same time he dug a ditch around the west end of the embankment, thence southerly for a distance of about 10 feet upon defendants' land. The effect of said embankment and ditch was to divert the surface waters, flowing southerly from the valley, away from Hails' land and onto defendants' land.

Plaintiffs entered into possession of Hails' land on August 1, 1942, and planted said land in beets, cauliflower, cabbage, lettuce and other garden produce. About August 21, 1942, defendants caused that part of the ditch which was on their land to be filled, and in September, 1942, dug an irrigation ditch along the east boundary of their land which ditch extended from a pump and well, approximately 1,375 feet south of their north boundary line, in a northerly direction for a distance of about 1,200 feet. They constructed an embankment on each side of the irrigation ditch. In December the County of Los Angeles caused a cut to be made in the embankment on Del Amo Street to release surface waters flowing from the valley which had accumulated upon the highway on the north side of the street embankment. Thereafter, plaintiffs constructed an embankment on Hails' land, which embankment connected with the street embankment east of the cut, and then extended southwesterly to their west boundary line, and thence south along their west line to a point south of defendants' well and pump, and also south of a low place on Hails' land which appellants call a ‘basin.’ After heavy rains in January, 1943, surface waters flowed through the cut in the street embankment, thence around the embankment made by plaintiffs, and against the east bank of defendants' irrigation ditch, broke the banks of the irrigation ditch, and flowed upon defendants' land. The waters also broke the north and south portions of plaintiffs' embankment, flowed upon Hails' land, and formed a pool upon the low place on Hails' land, destroying beets and cauliflower which covered approximately 14 acres.

At the time plaintiffs filed this action, Hails also filed an action for an injunction against these defendants and certain other defendants. The causes of action were tried together, and Hails appealed from the judgment in that action. The essential facts pertaining to the present action were stated in more detail in an opinion of this court filed this day in that action, Hails v. Martz, Cal.App., 164 P.2d 834.

Appellants' contention that the evidence is insufficient to support the findings in regard to the natural configuration of the lands and the natural flow of surface waters cannot be sustained for the reasons stated in Hails v. Hartz, supra.

Appellants contend that the evidence is insufficient to support the finding that the embankment erected by appellants diverted surface waters away from Hails' land, and against the bank of defendants' irrigation ditch, causing the banks of said ditch to break and flooding defendants' land. There was evidence that, prior to the time the embankments here involved were erected, the surface waters from the valley flowed upon and across the Hails land in a southeasterly direction, and that they flowed south on the Hails land to a low place thereon located about the ‘middle’ of and on the west part of the Hails land, where they stood; and that they did not flow upon defendants' land. Marconi testified that he built the embankment on Del Amo Street and dug the ditch for the purpose of diverting surface waters away from Hails' land and onto defendants' land. George Woo, one of the appellants, testified that he and his partner erected the embankment on the Hails land after the cut had been made in the street embankment, and that the purpose of erecting said embankment was to ‘carry off the water coming through that cut,’ and divert it to the west side of appellants' embankment and prevent it from spreading upon Hails' land. The evidence was sufficient to support the finding.

Appellants further contend that the evidence was insufficient to support the finding that defendants were damaged in the sum of $310.50. The evidence shows that manure had been placed upon approximately six acres of defendants's land and had not been plowed into the soil when the rains occurred in January, 1943; that the surface waters washed about 2/323 of the manure off the land where it had been spread, and it had to be replaced by other manure; that the manure required for one acre costs approximately $65; that defendants expended approximately $33 for dirt with which to repair the banks of their ditch, and about $75 to re-level their grounds; and that said expenditures were the result of and caused by the surface waters breaking the banks of defendants' ditch and flowing upon their land. The court found that the manure which was washed away was of a value in excess of $202.50, and that the other two expenditures were reasonable sums. That finding was supported by the evidence.

The judgment is affirmed.

WOOD, Justice.

DESMOND, P. J., and SHINN, J., concur.

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