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District Court of Appeal, First District, Division 2, California.

KLEINCLAUS et al. v. RICH et al.

Civ. 13893.

Decided: May 23, 1949

Theodore Tamba, Robert A. Haughwout, San Francisco, for appellants. Hoge, Pelton & Gunther, San Francisco, Richard A. Boyd, Leo V. Killion, San Francisco, for respondents.

Plaintiffs appeal from a judgment adverse to them in an action for damages for flooding their land. Plaintiffs were operating a private airfield and defendants, who had a contract with the United States Army Engineers to dredge a portion of a canal, pumped water from the canal onto property adjoining plaintiffs' airfield, from whence it seeped through the earth dikes surrounding such property onto plaintiffs' airfield flooding it completely and causing the damage complained of. The complaint counted upon defendants' negligence and the trial court found that defendants were not guilty of negligence and that plaintiffs were guilty of contributory negligence in blocking a natural drainage ditch across their own property.

On appeal plaintiffs argue that the rule of absolute liability applies, Nola v. Orlando, 119 Cal.App. 518, 6 P.2d 984, and defendants counter that having proceeded in the trial court on the theory of negligence plaintiffs may not change their theory on appeal to one of absolute liability, Niegel v. Georgetown Divide Water Co., 78 Cal.App.2d 445, 177 P.2d 641. We need not consider these questions since defendants' own testimony establishes their negligence beyond possibility of dispute. We quote from the testimony of defendant Rich:

“When we started to fill this area, we started here. It takes quite some time to fill that with water. Seepage started, of course, at the first place the water hit. * In a week or ten days the mud had pretty well stopped most of the seepage but by that time enough had seeped out that water would run quite some time through here. *

“The levee itself was approximately five feet higher than the ground * and we ran the water level up to within about a foot to six inches of the top of the levee making it four to four and a half above the ground.

“Q. Did you stop pumping water in after the area became flooded?

“A. No, we continued our operations until we finished dredging. * Because the ditch was blocked off was not our responsibility. We notified the people that blocked the ditch they had to open it.”

It thus appears without conflict that with knowledge that water started to seep onto plaintiffs' property from the time defendants started to pump they continued to pump water into the area enclosed by the dikes until plaintiffs' airfield was entirely flooded by the seepage and even afterwards. In view of this admission the finding that defendants were not guilty of negligence is without support in the evidence.

The finding of contributory negligence is based upon the fact that a natural drainage ditch had been carried under plaintiffs' runway through a wooden and metal culvert, this culvert in some manner had become obstructed and did not carry off the accumulated water which had seeped onto plaintiffs' property. This theory of contributory negligence is not well grounded. It is a general rule of law “that the rule which requires one to exercise ordinary care to protect himself from the results of the negligence of others is subject to the exception that, as a person is entitled to use his own premises for any lawful purpose, his failure to protect them from the negligence of another will not be contributory negligence.” 45 C.J. 945.

This general principle was given application to damage to goods stored in a building from water negligently cast on the roof of the building in Yik Hon v. Spring, V.W.W., 65 Cal. 619, the court saying at page 620, 4 P. 666.

“Nor does the allegation that the water passed through the roof, or through openings in the roof, establish that plaintiffs contributed to the injury. They had the right to use their own premises for any lawful purpose. If they had placed their goods in canvas tents, this would not have relieved defendant of the consequences of its wrongful act. There was no such relation between the omission to provide means by which water would be effectually excluded from their building and the tort complained of as would make plaintiffs in any degree participants in the conduct which caused the damage. As has been said: ‘The right of a man to make free use of his property is not to be curtailed by the fear that his neighbor will make a negligent use of his.’ 1 Thomp.Neg. 168. See, also, Fero v. Buffalo R. Co., 22 N.Y. 209, [78 Am.Dec. 178]; and Jefferis v. Philadelphia W. & B.R., 3 Houst., Del, 447.”

The same subject with relation to damage by water is fully discussed with a large collection of authorities in North Bend Lumber Co. v. City of Seattle, 116 Wash. 500, 199 P. 988, 19 A.L.R. 415, where the Washington court announced the same rule with regard to the defense of contributory negligence enunciated by our court in Yik Hon v. Spring V.W.W., quoted supra, the court saying 116 Wash. at pages 989–990, 199 P. at page 989, 19 A.L.R. 415:

“We hold, however, that one is not bound to use his property in anticipation of a situation arising, which, because of the negligence of some one else, known to or suspected by him, may or may not cause him damage.”

See also Tormey v. Anderson–Cottonwood Irr. Dist., 53 Cal.App. 559, 565–566, 200 P. 814; McCarty v. Boise City Canal Co., 2 Idaho 245, 10 P. 623; Shields v. Orr Extension Ditch Co., 23 Nev. 349, 47 P. 194.

The defendants had no legal right to cast waters pumped from the canal upon the plaintiffs' land. The plaintiffs might have deliberately filled in the natural drainage ditch before defendants' operations commenced if they had seen fit to do so. The defendants could not complain that plaintiffs deliberately or through negligence had previously obstructed the natural ditch on their own property nor did that give them a license to cast water artificially collected upon plaintiffs' land. Neither were plaintiffs bound to anticipate defendants' negligent flooding of their land nor to maintain a ditch on their premises in anticipation of such negligent flooding. If the plaintiffs had negligently permitted their ditch to become obstructed after the flooding commenced a different question would be presented. Luthringer v. Moore, 31 Cal.2d 489, 495, 499, 190 P.2d 1. When their land was already flooded and it became apparent that the ditch was obstructed plaintiffs at considerable expense to themselves brought equipment on their property and cleared the obstruction. That is all that they could legally be expected to do, and that expense they were entitled to recover as one item of their damages.

Judgment reversed.

DOOLING, Justice.

NOURSE, P.J., and GOODELL, JJ., concur.