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WADE et al. v. THORSEN et al.a1
In the winter season of 1931-32 plaintiffs were growing a crop of cauliflower on property of plaintiff W. W. Henley, being a part of the low lands of Santa Clara Valley in an area between the towns of Alviso and Milpitas, and only a short distance from the southern margin of San Francisco Bay. These lands were from seven to nine feet above sea level. The crop was located on land on both sides of Zanker road and west of the Coyote river. Zanker road runs north from the road known as the Alviso-Milpitas road. Defendant Charles Boots owns a farm lying just north of and adjoining the Alviso-Milpitas road, extending from Coyote river on the east to what would be the prolongation southerly of Zanker road if same extended south of the Alviso-Milpitas road. Defendant William R. Thorsen owns an orchard adjoining and immediately north of the Alviso-Milpitas road and adjoining and immediately west of Zanker road. The other defendant, Eric Thorsen, is the son of William R. Thorsen and acts as manager of the elder Thorsen in the care of his orchard. Between the Thorsen property and that portion of plaintiffs' crop grown on the west side of Zanker road are two farms, that of B. W. Curtner, adjoining Thorsen, and that of Florence Zanker, immediately north of Curtner, and adjoining plaintiffs' crop. The portion of plaintiffs' crop east of Zanker road lay between the road and Smith slough. Between the Thorsen property and the Coyote river are three farms. The Coyote river is the largest stream flowing into Santa Clara Valley and is subject to torrential floods and drains an area of more than 200 square miles and empties into San Francisco Bay. During the rainy season floods occur and become most aggravated when a second heavy rainfall follows close after a first rainfall which has already saturated the earth where it cannot absorb and hold further precipitation. Such conditions occurred in December, 1931. Through the ages the floods which came down the Coyote river overflowed the banks of the stream depositing silt on either side. This deposit has gradually raised the bed of the river so that the river “rides” above the surrounding country, similar in this respect to the bed of the Colorado river in Imperial valley and the Sacramento river in the Colusa, Yolo, and Sutter basins. To guard against the floods of the Coyote, the defendant Boots, and his father before him, year by year heightened and strengthened the levee along the west bank of the Coyote. The father of defendant Boots first constructed a levee about the year 1860, since which time it has gradually been strengthened year after year. As early as 1906 he put in concrete retaining walls constructing therein three concrete spillways, which spillways in going upstream are designated for the purpose of this action as overflow gate No. 1, gate culvert or tunnel, and overflow gate No. 2. Overflow gates 1 and 2 are in the form of weirs or notches cut in the top of the bank, protected on the outside by concrete foundations and concrete aprons. They are regulated by removable flashboards. The culvert located between the two overflow gates is in the form of a tunnel about six by six feet in dimensions lined with concrete and piercing the bank. It is controlled by a gate which lets down from the top.
On Sunday, December 27, the river was running nearly bank full and near the bridge on the Alviso-Milpitas road the water was flowing over the easterly bank of the river. The water as shown by a gauge on the Boots' property was then at a height where it threatened to go over the low places of the levee on Boots' property. Defendants Boots and Eric Thorsen removed certain boards from overflow gate No. 1, releasing a portion of the flood waters.
The theory of the respondents by the amended complaint is that the action of Boots and Thorsen on the evening of December 27, 1931, was the sole efficient and proximate cause of the damage to plaintiffs' crops. Among other things, the court found:
“III. That on said 27th day of December, A. D. 1931, said defendants, for the purpose of irrigating their said lands, negligently and carelessly diverted the waters of the Coyote Creek upon their lands; that they negligently piled sacks of sand along said San Jose-Alviso Road for the purpose of diverting said waters upon their said lands; that as a proximate result of the said action of said defendants the said waters from the Coyote Creek flowed out on the lands of said defendants and over and upon the lands and cauliflower crop of plaintiffs and absolutely destroyed said cauliflower crop above mentioned.”
“VI. * * * that on account of dry years * * * the said Coyote Creek had not overflowed near the point in question for some years before the year 1931, and that the levees erected by Charles Boots * * * had not been broken down by floods since about the year 1906, and that since said time the lands of plaintiff W. W. Henley had not been overflowed with waters coming from the Coyote from any portion of the lands owned by Charles Boots.
“VII. * * * that the levees * * * are so well built and reinforced that the flood waters have not broken them down since about the year 1906, and since said time that no flood waters have come from the Coyote Creek through the levees on the land of Charles Boots to the lands of plaintiff W. W. Henley.
“VIII. * * * that at the point where defendants diverted the waters on the 27th day of December, 1931, the levee had been closed and boarded and reinforced for many years; that the other spillways and culverts * * * had always remained open * * * but that no flood waters from Coyote Creek had ever reached the land of plaintiff W. W. Henley since about the year 1906, and * * * that defendant Charles Boots allowed these other spillways to remain open for the purpose of lessening the pressure of the flood waters against the entire levees upon his property and thereby protecting his own property.
“IX. * * * that the flood waters allowed to flow through said spillways * * * had never overflowed or come near the lands of W. W. Henley.
“X. * * * that at the time defendants released the waters as alleged in the complaint there was a flood and that the waters were high; but finds that only an inconsiderable amount of water would have flowed over any of the spillways mentioned in the answer, and would not have flowed upon the land of plaintiff, W. W. Henley, had not defendants diverted the waters as alleged in the complaint at the particular point where said waters were diverted; and that the allowing of said spillways to remain open as hereinabove found was for the safety and protection of the land of defendant Charles Boots; and that if defendants had not diverted the waters of the Coyote Creek at the particular place at which said waters were diverted by defendants on said 27th day of December, A. D. 1931, that none of the flood waters of said Coyote Creek would have come upon the lands of plaintiff W. W. Henley.”
In accordance with the findings, judgment went for the respondents against the appellants who have brought this appeal.
1. Appellants contend that the trial court erred in finding III that defendants diverted flood waters on December 27, 1931, for the purpose of irrigating their lands and that said finding is not supported by the evidence and is against the law. A like contention is made that the court erred in finding X, that only an inconsiderable amount of water would have flowed over any of the spillways on the Boots property, and that the flood waters of the Coyote would not have damaged the plaintiffs' crop had not the defendants diverted water by removing boards from floodgates on the Boots property. In so far as the attack on finding X is concerned, counsel in his brief admits that there is a conflict in the evidence, but argues that the evidence supporting the finding of the trial court is “contrary to immutable physical laws” and supports this contention because of certain maps introduced in evidence and certain testimony of a surveyor, called by appellants to testify, showing that water from portions of the Coyote other than from gate No. 1, actually overflowed and that such waters must have overflowed the land of plaintiff Henley, and this by reason of the contour of the lands and their respective elevations.
Without doubt innumerable cases support the proposition of law that the reviewing court will set aside the finding of the trial court, or the verdict of a jury, when such finding or verdict is based either upon evidence inherently improbable or when there is physical impossibility of the evidence being true. Austin v. Newton, 46 Cal. App. 493, 189 P. 471; Neilson v. Houle, 200 Cal. 726, 254 P. 891. The record in this case shows a substantial conflict in the evidence not only on finding X, but on finding III, and this being true the reviewing court will not disturb the finding of the trial court. In this connection it must also be borne in mind that upon stipulation of counsel the trial judge viewed the premises and that while so viewing the premises appellant Boots and witness Jackson explained to the court “the construction of the different levees and spillways, the slope of the land and the flow of water.” Although the record does not give the actual testimony of these two witnesses in connection with such explanations, what was said nevertheless was evidence received by the court, and we must presume that this evidence also sustained the findings of the court. It is well settled that “the knowledge gained by the court from a view of the premises is independent evidence to be taken into consideration by the court in determining the issues of the case.” Hatton v. Gregg, 4 Cal. App. 537, 88 P. 592, 594; Vaughan v. County of Tulare, 56 Cal. App. 261, 205 P. 21.
From all the evidence in the case we believe the trial court was justified in its findings in the particulars mentioned.
2. Appellants further contend they had a legal right to divert the flood waters in order to lessen the strain on the Boots' levees; that their action was reasonable, and even assuming, only for the purpose of argument, that the crops of respondents were damaged by their acts, such damage is damnum absque injuria. It is the well-settled law of this state that a landowner may erect levees or dikes to protect his property from flood waters even though such acts of the landowner may cause damage to his neighbors; that a landowner erecting such levees or dikes is under no duty or obligation to maintain them. Lamb v. Reclamation Dist. No. 108, 73 Cal. 125, 14 P. 625, 2 Am. St. Rep. 775; McDaniel v. Cummings, 83 Cal. 515, 23 P. 795, 8 L. R. A. 575; Gray v. McWilliams, 98 Cal. 157, 32 P. 976, 21 L. R. A. 593, 35 Am. St. Rep. 163; De Baker v. Railway Company, 106 Cal. 257, 39 P. 610, 46 Am. St. Rep. 237; Barnes v. Marshall, 68 Cal. 569, 10 P. 115; Sanguinetti v. Pock, 136 Cal. 466, 69 P. 98, 89 Am. St. Rep. 169; Jones v. California Development Co., 173 Cal. 565, 160 P. 823, L. R. A. 1917C, 1021; San Gabriel V. C. Club v. Los Angeles County, 182 Cal. 392, 188 P. 554, 9 A. L. R. 1200; Weinberg Co. v. Bixby, 185 Cal. 87, 196 P. 25. As was said in Gray v. McWilliams, supra, at page 163 of 98 Cal., 32 P. 976, 978:
“In the case of flood waters escaping from natural streams, we view them, it is true, as a common enemy, against which we may protect ourselves without the commission of a wrong; but after all, this declaration is used in view of the means of defense resorted to, rather than in the abstract. * * *
“In the case of surface waters having no defined channels of escape, and the owner of the land upon which they are found being impotent to rid himself of their presence, the law wisely provides that the laws of nature shall be left untrammeled in their disposition.”
The real question in cases like this is: Had the party sued the right to do the thing complained of? In this case did the admitted acts of the appellants, the consequences being what they were, subject appellants to the legal liability declared by the trial judge? In each of the foregoing cases the damage claimed arose from the building of the levees. In the case at bar the damages claimed arose from, not the building of the dikes, but the manner of their use after said dikes had been there for more than sixty years. In other words, the evidence shows that the dikes or levees had been built and maintained for sixty years, or more, to keep the flow of the Coyote from defendant Boots' land. That at the time in question, namely, December 27, 1931, defendant Boots, with others, caused the waters then held back by the levees not to proceed as they would have by the help of the levees, but deliberately opened spillway gate No. 1 so as to irrigate the land of defendant Thorsen and by so opening gate No. 1 caused sufficient water not only to irrigate the Thorsen land, as was intended, but to go beyond the Thorsen land and overflow the cauliflower crop of respondents. From all the testimony in the case it is reasonable to assume that the trial court did not find that Boots and his codefendant Thorsen loosened the waters over the spillway of gate No. 1 in an effort either to protect his property or to deal with the flood waters as a common enemy, but that the water was deliberately caused to flow over the spillway to help his codefendant Thorsen to irrigate his land, and that the attempted defense of dealing with the water as a common enemy was not in the minds of defendants Boots and Thorsen at the time of opening gate No. 1.
Appellants seemingly contend that having built the levees they could act with them as they pleased, even to the extent of destroying same. Assuming, but not deciding, that this contention of appellants is true in the abstract, could appellants with impunity at the height of a flood deliberately tear out the levees thereby permitting the excess accumulation of water to overflow the lands theretofore protected by the levees and escape any liability in damages for such a ruthless act? We think not. Neither do we believe the law gives him the right with impunity, particularly at the height of a flood, to loosen through a spillway waters that have been allowed to accumulate behind the levees. A study of the cases cited by appellants shows them to be in accord with the views expressed herein. In Jones v. California Development Co., supra, at page 574 of 173 Cal., 160 P. 823, 827, quoting from “Water and Water Rights”:
“‘Therefore no arbitrary rule can be laid down which will govern all cases, but each case must be dealt with upon its facts, applying the rule which will be reasonable under the circumstances, under the general rule that the water should be allowed, as far as possible, to seek its natural outlet.’ * * *
“The underlying principle governing the decision of all these cases which deal with extraordinary water conditions, whether created by the ocean or by unexpected and unprecedented floods, is that in such stress the landowner may use every reasonable precaution to avert injury from his land, and whether or not his conduct be reasonable will be determined by existing conditions and not by after consequences; so that if the acts of the landowner be, in the light of the existing circumstances, not unreasonable, he will not be held liable for consequent damage which by these reasonable acts may be inflicted upon another landowner.”
In Weinberg Co. v. Bixby, supra, at page 96 of 185 Cal., 196 P. 25, 29, after quoting from Jones v. California Development Co., supra, the court says: “We recognize the limitation in all of these cases that such right of self-protection does not permit of any obstruction of or interference with the natural channel of the stream or diversion of the flow of the water in such channel.” And at page 109 of 185 Cal., 196 P. 25, 35: “* * * the right to repel flood waters is purely one of self-defense. The proprietor of land so threatened can ward off the danger by suitable obstruction to the invasion of his land at any point upon his own premises, and by any means that does not go beyond the limits of a defensive act, and become an aggressive diversion of the natural flow upon other proprietors.” In this connection we desire to call attention to section 3514 of the Civil Code, which provides that, “One must so use his own rights as not to infringe upon the rights of another,” and the interpretation of that section as found in Green v. General Petroleum Corp., 205 Cal. 328, 270 P. 952, 60 A. L. R. 475.
3. The last point raised is when the evidence shows that damage results from an independent cause as well as from the action of appellants, respondents must show what portion of damage is attributable to the acts of appellants and that it is error under such circumstances to hold the appellants liable for all of the damage. We agree with the principle of law stated. See Learned v. Castle, 78 Cal. 454, 18 P. 872, 21 P. 11. However, in view of our decision on the other matters this point becomes immaterial.
The judgment is affirmed.
SCHMIDT, Justice pro tem.
We concur: NOURSE, P. J.; STURTEVANT, J.
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Docket No: Civ. 9122.
Decided: July 13, 1934
Court: District Court of Appeal, First District, Division 2, California.
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