EVERETT v. DAVIS (1940)

All defendants, with the exception of the Southern Pacific Company, appeal from a judgment enjoining them from erecting or maintaining certain embankments and fences on the lands of defendant Davis. The trial court found that these structures diverted the natural flow of surface waters across the lands of defendant Davis into a narrow stream so that instead of such waters being spread out and the sand, silt and gravel contained therein deposited on Davis' lands, such waters, with their deposits, were forced onto the lands of plaintiff, to plaintiff's substantial damage.

The lands involved on this appeal are situated in the Moorpark district located in the eastern part of Ventura county. Plaintiff Everett owns two parcels of land, the northerly parcel consisting of eighty acres and the southerly parcel of one hundred and twenty-six acres. The eighty-acre parcel lies north of a road known as Los Angeles avenue, which runs east and west. This road separates the northerly parcel from the one hundred and twenty-six acre parcel which lies to the south of that road. Both parcels are composed of good productive soil and are highly improved. The lands of defendant Davis are contiguous to the northerly parcel owned by plaintiff Everett, lie immediately to the east of said lands, and are bounded on the south by Los Angeles avenue. Immediately east of the defendant Davis' land, and north of Los Angeles avenue, are the lands owned by Mary Estes, not a party to this action. South of Los Angeles avenue, east of plaintiff Everett's one hundred and twenty-six acre parcel, are the Bristol lands which are not involved in this action. Immediately east of the Bristol lands and south of Los Angeles avenue are the Hitch lands. Crossing the lands of Estes, defendant Davis and plaintiff Everett's northerly parcel, is the right of way of the Southern Pacific Company, owned in fee by it. This right of way, on which tracks are constructed, runs in a general southwesterly direction across the three tracts mentioned, in the southern half of such tracts.

North of the railroad right of way the country is hilly and rolling. A large portion of this northern country drains into a canyon or ravine that runs through the Estes property onto defendant Davis' land known as Estes wash. Although the trial court did not expressly so find, the evidence shows, and the parties to this appeal all concede, that Estes wash, in times of rain, is a natural watercourse, draining a large area to the north. The mouth of Estes wash is on defendant Davis' property north of the railroad tracks. Prior to the construction of the railroad the water from Estes wash, in the rainy season, debouched from the mouth of the canyon, and spread out over defendant Davis' lands. The railroad was constructed in 1902. The railroad is higher than the surrounding country. When the railroad was constructed a culvert or bridge was built in the right of way about three hundred feet west of the east boundary of defendant Davis' land, and by the construction of an artificial channel, the waters flowing down Estes wash have been controlled and directed so that they pass under this bridge or culvert. Thereafter, the water has flowed under the bridge and over defendant Davis' land. The court found that after flowing under the culvert, the waters from Estes wash, bearing gravel, sand and silt, during the rainy season have “spread out over the land of Davis, and have run across same without flowing in any channel or watercourse; and that, in thus spreading out, the gravel and sand have been deposited upon the said lands of John A. Davis, forming a debris cone, having its apex at said bridge or culvert”. This finding, in so far as it finds that the waters spread out over defendant Davis' land without flowing in any watercourse, and other findings to the same effect, are challenged by defendants as being unsupported by the evidence. We have read the record. The evidence on this point is somewhat unsatisfactory, but we are not inclined to hold such findings are not supported. We are inclined to the belief that the evidence shows that the detritus cone, built up at the mouth of Estes wash by the sand, gravel and debris in the waters debouching therefrom, is an alluvial fan causing the waters to spread out in a fan shape over defendant Davis' land. In other words, this debris cone is practically uniform in its slope, the elevation contours being practically in concentric circles from the apex at the bridge.

In 1916 the county of Ventura constructed a highway ditch bordering the north side of the highway on Davis' land, and leading to the land of Everett. The trial court found that since 1916 the balance of the waters from Estes wash, after flowing across defendant Davis' land north of the highway and south of the railroad track, and, after having deposited most of the gravel, sand and silt contained therein on the land of Davis, which also absorbed some of such water, ran into this highway ditch. This ditch caused the water to run westerly down to the land of plaintiff Everett. The court also found that the embankment built by the railroad north of the tracks caused the waters flowing under the bridge to flow in a general southeasterly direction. In 1932, the Southern Pacific Company, with the knowledge of defendant Davis, but without his consent, built across its right of way, and partially on Davis' land south of the tracks, a woven wire fence and a dirt embankment for a distance of about two hundred and fifty feet to carry the waters away from the tracks. This fence and embankment were built from the east side of the culvert and were so constructed that they diverted the waters from their natural southeasterly course to a more southwesterly direction, in the direction of the lands of plaintiff. The court found, however, “that the erection and maintenance of such fence and embankment, for the said approximate distance of two hundred and fifty feet, would not cause of itself, injury to the lands of plaintiff”.

After the construction of the railroad fence and embankment, defendants Davis and Hitch built a woven wire fence and embankment from the west side of the culvert paralleling the one built by the railroad for two hundred and fifty feet, and then continued such fence and embankment, and the ones constructed by the railroad, in a general southwesterly direction to the highway ditch at a point about five hundred feet east of the lands of plaintiff Everett. The effect of these structures has been to confine the waters of Estes wash to a fifteen-foot channel across Davis' land to the highway ditch. The trial court also found that the effect of thus confining the waters to this narrow channel has been not only to increase the flow of the highway ditch during the rainy season, and so to increase the flow onto plaintiff Everett's land, but also the sand, silt and gravel that were formerly deposited on defendant Davis' land are now deposited in the ditch, with the result that the ditch is filled up causing the water to overflow onto plaintiff Everett's lands. The court expressly found that these waters, while on the lands of defendant Davis, were surface and were not flood waters. The court also found that the diversion of these waters onto plaintiff Everett's lands caused serious and permanent injuries to said lands. Based on these findings, the court entered its judgment enjoining the defendants, other than the Southern Pacific Company, from maintaining the diversion fences and embankments, and ordering the defendants to remove these fences and embankments. No relief was granted as against defendant Southern Pacific Company.

From these findings it appears that, prior to the construction by defendants of the fences and embankments complained of, water that had been accumulated from a large drainage area was debouched onto defendant Davis' land through the mouth of Estes wash. The effect of the structures constructed by defendants has been to convey the waters from Estes wash across Davis' land, without materially changing their natural course, but without permitting them to spread out over Davis' lands. As already pointed out, although the trial court made no express finding to that effect, it is conceded by all concerned on this appeal, and the evidence shows, that Estes wash, northerly from its mouth is a natural watercourse. The court made no finding as to whether or not the artificial channel constructed by the railroad company in 1902 leading from the mouth of Estes wash to the railroad track had acquired the status of a natural watercourse, by reason of its permanent nature, its uninterrupted use as a watercourse, and the acquiescence of all concerned, under the rule stated in San Gabriel V.C. Club v. Los Angeles County, 182 Cal. 392, 188 P. 554, 9 A.L.R. 1200, and Chowchilla Farms, Inc. v. Martin, 219 Cal. 1, 25 P.2d 435. Nor did the court make any finding as to whether the highway ditch constructed by the county of Ventura in 1916 had acquired the status of a natural watercourse under the rule of these cases. There can be no doubt that the waters in Estes wash are stream waters, flowing in a natural watercourse. These waters, prior to the construction of the fences and embankments here involved, after debouching from the canyon, did not run in any natural channel across Davis' land, but, after depositing most of their sand, gravel and silt, eventually found their way into the highway ditch, and then ran down to plaintiff Everett's property.

The legal question presented by this state of facts can be simply stated: Are such waters surface waters, or are they flood waters? If they are surface waters, as held by the trial court, the defendants were not legally entitled to divert them from their natural flow, or to concentrate them in such a way as to cause them to flow in a manner different from their natural manner to the damage of Everett. If they are flood waters they can be treated as a “common enemy”, against which defendants were entitled to protect themselves in a reasonable manner. These principles are clearly stated in the leading and frequently cited case of Horton v. Goodenough, 184 Cal. 451, at page 452, 194 P. 34, at page 35, as follows: “The primary rules of law governing such a case are simple enough and well settled, and are three in number. First, one has no right to obstruct the flow onto his land of what are technically known as surface waters. Heier v. Krull, 160 Cal. 441, and authorities therein cited at page 444, 117 P. 530. But by ‘surface waters' are not meant any waters which may be on or moving across the surface of the land without being collected into a natural water course. They are confined to waters falling on the land by precipitation or rising thereon in springs. Putting it conversely, they do not include waters flowing out of a natural watercourt, but which yet were once a part of a stream and have escaped from it, ‘flood waters' in other words. McDaniel v. Cummings, 83 Cal. 515, 23 P. 795, 8 L.R.A. 575; Farnham on Waters, § 278. Second, one has the right to protect himself against ‘flood waters,’ that is, waters of the character last described, and for that purpose to obstruct their flow onto his land, and this even though such obstruction causes the water to flow onto the land of another. Barnes v. Marshall, 68 Cal. 569, 10 P. 115; Lamb v. Reclamation District, 73 Cal. [125] 126, 14 P. 625, 2 Am.St.Rep. 775; De Baker v. [[Southern Cal.] Ry. Co., 106 Cal. 257, 39 P. 610, 46 Am.St.Rep. 237; Sanguinetti v. Pock, 136 Cal. 466, 69 P. 98, 89 Am.St.Rep. 169. Third, one may not obstruct or divert the flow of a natural water course. But by a ‘water course’ is not meant the gathering of errant water while passing through a low depression, swale, or gully, but a stream in the real sense, with a definite channel with bed and banks, within which it flows at those times when the streams of the region habitually flow.” (Citing cases.)

Tested by these standards, it is clear that the waters here involved are flood waters and are not surface waters. These waters did not consist of waters “falling on the land by precipitation or rising thereon in springs”. Nor, it can be added, do they consist of surface waters flowing from an upper owner onto Davis' land. These waters were “once a part of a stream and have escaped from it—flood waters, in other words”. In the Horton case the water came down Jepson canyon. In times of high water defendant's lands were seriously injured. Defendant and others, in an attempt to protect their lands, erected obstructions which diverted the flow onto plaintiff's lands. The trial court found that the waters thus diverted were “surface or flood waters”, and granted plaintiff an injunction. In reversing the case the Supreme Court held that the waters were clearly flood waters and were not surface waters. The only factual distinction between the Horton case, supra, and the instant one, is that, after debouching from Jepson canyon over the debris cone at the mouth of the canyon, the waters were normally confined to a regular channel across defendant's lands, but overflowed the banks thereof in periods of high flow. But this is a distinction without a legal difference. If stream waters which debouch from a canyon, and during periods of high flow overflow the banks of the natural channel, are flood waters, so are waters that have once been confined to a natural channel and debouch from the mouth thereof without then running in a channel. Certainly, the legal nature of these waters does not change because, perchance, in one case there is a channel, but an inadequate one to carry the water, while in the other there is no welldefined channel. Another case, factually similar to the Horton case, is San Gabriel V.C. Club v. Los Angeles County, 182 Cal. 392, 188 P. 554, 9 A.L.R. 1200; see, also, Fenton & Thompson R. Co. v. Adams, 221 Ill. 201, 77 N.E. 531, 112 Am.St.Rep. 171.

Plaintiff contends that this factual distinction compels a holding that in the instant case the waters are surface waters, relying on such cases as Thomson v. La Fetra, 180 Cal. 771, 183 P. 152; Rudel v. Los Angeles County, 118 Cal. 281, 50 P. 400, and LeBrun v. Richards, 210 Cal. 308, 291 P. 825, 72 A.L.R. 336. It would serve no useful purpose to analyze the facts of these cases, all of which are clearly distinguishable from the instant case. Whatever doubt may have existed as to whether waters once confined in a natural channel and escaping from the end thereof are flood waters, has been set at rest by the recent decision of the Supreme Court in Mogle v. Moore, Cal.Sup., 104 P.2d 785. In that case defendant owned two parcels of land divided by a strip designated as “Comet Avenue”. The plaintiff owned two parcels also divided by this strip below the defendant's property. The waters here involved came down Cucamonga canyon, and then a part thereof flowed down West Cucamonga creek. Over a period of years, by artificial changes and by natural development, this creekbed came to carry considerable waters in periods of high flow. During such periods the water flowed down the creek and ultimately reached the upper boundaries of defendant's lands at Comet avenue. These waters then flowed generally over defendant's land. Defendant, by the construction of fences and other means, conveyed these waters down Comet avenue in a narrow channel to plaintiff's lands, where they did the damage of which complaint was made. The trial court enjoined defendant. This was reversed. The court discussed the basic principles involved as follows (104 P.2d 788):

“West Cucamonga creek did not lose its character as a watercourse nor did its waters lose their character as stream waters after 1916, because the stream bed was dry for periods of time. Cederburg v. Dutra, 3 Cal.App. 572, 86 P. 838. It is thoroughly established in California that ‘A constant flow of water is not essential to the existence of a watercourse.’ 25 Cal.Jur. 1036, and cases cited. It is sufficient if, during some seasons, water does in fact flow in the stream bed.

“Surface waters are defined as waters falling upon and naturally spreading over lands. They may come from seasonal rains, melting snows, swamps or springs, or from all of them. Surface waters consist of surface drainage falling on or flowing from and over a tract or tracts of land before such waters have found their way into a natural watercourse. 26 Cal.Jur. p. 279, and cases cited.

“A stream is a watercourse having a source and terminus, banks and channel, through which waters flow, at least periodically. Streams usually empty into other streams, lakes, or the ocean, but a stream does not lose its character as a watercourse even though it may break up and disappear. Hellman, etc., Bank v. Southern Pacific Co., 190 Cal. 626, 214 P. 46. Streams are usually formed by surface waters gathering together in one channel and flowing therein. The waters then lose their character as surface waters and become stream waters. Lindblom v. Round Valley Water Co., 178 Cal. 450, 173 P. 994; Horton v. Goodenough, 184 Cal. 451, 194 P. 34; Gray v. Reclamation District No. 1500, 174 Cal. 622, at page 650, 163 P. 1024. As we have observed, a continuous flow of water is not necessary to constitute a stream and its waters stream waters. San Gabriel Valley Country Club v. Los Angeles County, 182 Cal. 392, 188 P. 554, 9 A.L.R. 1200.

“Flood waters are thus correctly described in 26 California Jurisprudence 280; ‘Flood Waters are distinguished from surface waters by the fact that the former have broken away from a stream, while the latter have not yet become part of a watercourse. The term “flood waters” is used to indicate waters which escape from a watercourse in great volume and flow over adjoining lands in no regular channel, though the fact that such errant waters make for themselves a temporary channel or follow some natural channel, gully or depression does not affect their character as flood waters or give to the course which they follow the character of a natural watercourse.’

“It is also thoroughly settled that flood waters escaping from a stream are not surface waters and do not lose their character as flood waters while flowing wild over the country. In Horton v. Goodenough, supra, it was said (184 Cal. 451, 194 P. 37): ‘The waters are plainly flood waters breaking out of their channel and running wild, and as such each property owner threatened has the right to protect himself against them as best he can, under the authority of the decisions we have already cited, the most notable of which is Lamb v. Reclamation District (73 Cal. 125, 126, 14 P. 625, 2 Am.St.Rep. 775), supra. The waters are not surface waters in the technical sense, for they have already been gathered into a stream whence they have escaped.’

“A similar rule is announced in LeBrun v. Richards, 210 Cal. 308, 291 P. 825, (828), 72 A.L.R. 336, with the added remark that ‘Flood waters are those which escape from a stream or other body of water and overflow the adjacent territory.’ ”

The court then quotes that portion of the Horton case, supra, that is quoted above in this opinion, and then holds (104 P.2d 790):

“When we apply these rules of law to the facts found by the trial court the following conclusions are inevitable: (1) West Cucamonga creek is a watercourse and the water flowing in it constitutes a stream; (2) The surface waters running off from Upland and vicinity become stream waters when they gather in West Cucamonga creek; (3) When the stream waters of West Cucamonga creek leave its watercourse in times of flood they become storm waters; (4) Those waters remain storm waters when running wild over the adjacent country.

“It makes no difference in the ultimate decision of this case, on the facts found, whether we do or do not regard the manmade channel on Comet avenue as a part of West Cucamonga creek and a watercourse. The facts found are not sufficient to determine that question. We will therefore assume that it was not a watercourse. The flood waters escaped from the original channel of the West Cucamonga creek at the John G. Clock property. They then became flood waters, the common enemy against which threatened property owners had the right to protect themselves. Those flood waters followed the man-made channel to the lands of defendants. On leaving that man-made channel they remained flood waters. Defendants had the right to protect their property against those flood waters even to the damage of plaintiffs, their lower neighbors. There is no finding that what defendants did to protect their property was improperly done. It follows that in so far as the judgment enjoins defendants from properly protecting their property from the waters escaping from West Cucamonga creek through the channel on Comet avenue, it cannot be sustained.”

After holding that Thomson v. La Fetra, supra, and similar cases, were not controlling, the court discussed the exact point here involved as follows (104 P.2d 790):

“Plaintiffs also urge that the waters which flooded their property cannot be classified as flood waters because they did not escape over the banks of West Cucamonga creek during a period of great storms, but, either through an opening at the end of the creek, or through the end of the man-made channel on Comet avenue.

“We are not impressed with this argument. As we have already seen, stream waters escaping from the channel of a watercourse during periods of great storms become flood waters. That they cannot fall within any accepted definition of surface waters is clear whether they escape over the stream banks or at the end of the channel. Therefore, they are not surface waters. That they are not stream waters when they leave the channel is fully settled by the cases already cited. By this process of elimination we are forced to the conclusion that the waters which escaped from West Cucamonga creek could have been only flood waters. We are fortified in this conclusion by Sanguinetti v. Pock, supra, where it was held that storm waters which filled a natural swale, not a watercourse retained the character of flood waters. A property owner may protect his property from overflow from flood waters.” (Italics ours.)

It should be added that the dissenting opinion in the Mogle case does not challenge these well-settled principles. It contends, however, that the majority opinion has misconstrued the facts, and that the case is one where a natural stream has been diverted from its natural channel to the injury of a lower owner. That problem is not involved on this appeal.

This case, and the reasoning upon which it is based, are conclusive on the present appeal.

It should be mentioned that the trial court, in the instant case, made no finding as to the reasonableness of the means taken by defendants to protect their properties. That will be an issue on the retrial. Although some loose language appears in some of the cases that a property owner may take “any means” to protect himself from flood waters, the proper rule is that such means must be reasonable under all the circumstances. This limitation is recognized in all the better reasoned cases. Jones v. California Development Co., 173 Cal. 565, 160 P. 823, L.R.A.1917C, 1021; Horton v. Goodenough, supra; San Gabriel V.C. Club v. Los Angeles County, supra; Mogle v. Moore, supra; 26 Cal.Jur. p. 291, § 508. It should also be remembered that this is an equity case. The equity courts possess broad powers, and should exercise them so as to do substantial justice between the parties. If a physical solution of the problem here presented exists so that the parties by cooperation, keeping in mind their relative rights, can solve such problem, the equity court may properly consider such physical solution in determining what is a reasonable means of protecting defendants' properties. Tulare Dist. v. Lindsay–Strathmore Dist., 3 Cal.2d 489, 45 P.2d 972; Peabody v. City of Vallejo, 2 Cal.2d 351, 40 P.2d 486.

The judgment appealed from is reversed.

I dissent. The waters which are the subject of the present controversy, during certain periods of each year flow for a number of miles within a well-defined watercourse down what is known as Estes wash, to the natural end of the watercourse located on appellants' lands, which have been adapted to the growing of ordinary field crops. There the waters spread out and mostly disappeared; and such was the condition for many years. By means of artificial structures appellants began diverting the water from the end of the watercourse over and across their lands in such a manner as to cause great damage to respondent's land, upon which there is a valuable growing orchard.

The majority opinion holds as a matter of law and contrary to the trial court's finding that the waters so diverted are flood waters; and as will be noted, the opinion is grounded principally upon the decision in the recent case of Mogle v. Moore, Cal.Sup., 104 P.2d 785, which was rendered by the District Court of Appeal of the Fourth District, 96 P.2d 147, and subsequently adopted by the Supreme Court, one member dissenting. According to the definitions therein set forth, all waters flowing down the so-called Estes wash must be classified as stream waters; and by the same decision it is held that stream waters are not subject to diversion. In defining stream waters the court says [104 P.2d 789]: “A stream is a watercourse having a source and terminus, banks and channel, through which waters flow, at least periodically. Streams usually empty into other streams, lakes, or the ocean, but a stream does not lose its character as a watercourse even though it may break up and disappear. Hellman, etc., Bank v. Southern Pacific Co., 190 Cal. 626, 214 P. 46. Streams are usually formed by surface waters gathering together in one channel and flowing therein. The waters then lose their character as surface waters and become stream waters. Lindblom v. Round Valley Water Co., 178 Cal. 450, 173 P. 994; Horton v. Goodenough, 184 Cal. 451, 194 P. 34; Gray v. Reclamation District No. 1500, 174 Cal. 622, at page 650, 163 P. 1024. As we have observed, a continuous flow of water is not necessary to constitute a stream and its waters stream waters. San Gabriel Valley Country Club v. Los Angeles County, 182 Cal. 392, 188 P. 554, 9 A.L.R. 1200.”

Moreover, the majority opinion herein expressly finds that the waters of Estes wash are stream waters, and the evidence fully supports such finding. Thus in the majority opinion it is said: “* it is conceded by all concerned on this appeal, and the evidence shows, that Estes wash, northerly from its mouth, is a natural watercourse. * There can be no doubt that the waters in Estes wash are stream waters, flowing in a natural watercourse.” But the majority opinion goes on to hold in effect that instantly the stream waters reach and start to leave the end of the channel, and regardless of the volume or quantity thereof or the fact that they may there spread and disappear, they cease entirely to be stream waters and become flood waters, and consequently may be treated as a “common enemy” and diverted to respondent's damage. It may be granted that this view finds support in certain language used in dealing with the facts in the Mogle case, to the effect that flood waters are such as “escape over the stream banks or at the end of the channel”. However, it would seem that the above italicized words fail to fit in to the generally accepted definition of flood waters previously stated in said decision, to-wit: “The term ‘flood waters' is used to indicate waters which escape from a watercourse in great volume and flow over adjoining lands in no regular channel *.” In other words, as said in Le Brun v. Richards, 210 Cal. 308, 291 P. 825, 828, 72 A.L.R. 336: “Flood waters are those which escape from a stream or other body of water and overflow the adjacent territory”; and in the case of Horton v. Goodenough, 184 Cal. 451, 194 P. 34, 37, the language used is “breaking out of their channel and running wild”. (Emphasis added.) Regardless of the apparent conflict in the statement of the rule, it is my judgment that the present case falls squarely within the law laid down in Thomson v. La Fetra, 180 Cal. 771, 183 P. 152, and should be decided in accordance therewith. The law declared therein is correctly summarized in the syllabus as follows: “The rule applicable to waters which are a ‘common enemy’ cannot be invoked in favor of land owners who to prevent injury to their lands from seasonal waters from a canyon erected a wooden structure which turned the waters on to the lands of others, since the water not being in any sense flood water, the changing of its course and casting it upon other lands amounted to a trespass. The rule applicable to waters which are a ‘common enemy’ has application only to flood waters in the strict sense, that is to say, to waters escaping because of their height from the confinement of a stream and running over the adjacent country.”

For the reasons stated, it is my conclusion that the judgment herein should be affirmed.

PETERS, Presiding Justice.

I concur: WARD, J.