Allen v. Stowell

*667 CHIPMAN, C. Defendants appeal from a judgment for plaintiff granting a mandatory injunction compelling defendants to remove certain dams erected by defendants which caused the flow of water to be diverted from its natural course unto plaintiff’s land. The bill of exceptions does not pretend to bring up all the evidence, but, as stated in appellants’ brief, ■“is intended only to present two questions of law adopted •by the court and applied to the case.” These questions are: 1. Will the remedy of mandatory injunction lie where the •evidence is conflicting on the point at issue, unless there first be a verdict of a jury or decision of the court finding that actual—at least nominal—damages have been awarded plaintiff? 2. Did the court err in its ruling that defendants had no right to build the obstruction for the purpose of correcting a mistake of the railroad company in locating its culverts? It appears from the findings of the court that plaintiff’s land is planted to orange-trees in full bearing. Prior to the commencement of the action, and when defendants commenced the construction of the dams complained of, “plaintiff demanded of them that they desist and cease from said work and protested against the construction thereof, and explained to them the nature of the damages that said dams would cause him and his said lands and orchards, but defendants refused to abandon said work, or to cease the construction of said dams, and continued the same to completion.” It appears from the bill of exceptions, and is substantially found as the facts by the court also, that the evidence of plaintiff tended' to show that the dams referred to, which were erected after the railroad company had built its track, were so constructed that " all water flowing down said ancient way . . . would be diverted by said dams from its natural course and caused to flow in one accumulated body southerly along the east of these dams through said railroad culverts and thence in a like body through the lands of S. A. Stowell to the northeasterly corner of plaintiff’s land, and would then flow in said accumulated volume with great force southwesterly and diagonally across plaintiff ’s' lands, the natural effect of which would be to destroy a great number of his trees growing upon said land, and to excavate deep gulches and watercourses diagonally through the same; that the construction of said dams would and did arrest and divert water and cause the same to flow upon the *668 lands of plaintiff as last above found which would not naturally flow there in times of flood and high water”; and this the court found “would cause him [plaintiff] and his said land and orchard great and irreparable injury and damage.” There was a certain part of the dams and wing-dam erected by defendants which the court ‘ ‘ in the absence of results from actual experience” was unwilling to order removed on the evidence then before it, but found certain other portions to be a nuisance, “and should be removed and leveled to the original and natural surface of the ground. ’ ’ Relief by injunction will be given to prevent a deprivation of ancient rights; and if it be shown that plaintiff’s house is by the obstruction which he seeks to enjoin rendered in a substantial degree less fit for purposes of occupation than before, “equity may interfere, even to the extent of making its injunction mandatory by directing the restoration of matters to the condition in which they were before defendant’s erection was begun.” (High on Injunction, sec. 860.) A trespass irreparable in its character and of a continuing nature may be restrained by a mandatory injunction, thus restoring things to their original condition; health officers may be restrained by mandatory injunction from allowing a sewer to remain open. (Id., sec. 708.) Trespass upon public lands may be enjoined by the United States, and the injunction be made mandatory to compel the defendant to remove obstructions such as fences (Id., 723a); and in a case of a nuisance to a dwelling-house, the injunction will be made mandatory if the circumstances of the case require it. (Id., sec. 792.) It has been held that a bill to enjoin the erection of a nuisance in close proximity to plaintiff’s buildings which contains allegations of irreparable injury to complainant is not demurrable because it fails to show that the rights of the parties have been settled at law. (High on Injunction, sec. 791.) This court said in Learned v. Castle, 78 Cal. 454, that the right to an injunction in a case like the present one “does not depend upon the extent of the damage measured by a money standard; the maxim He minimis, etc., does not apply. The main object is to declare a nuisance and to prevent the continuance by a mandatory injunction.” The court found that the waters, diverted upon plaintiff’s land by the dam erected by defendant would not flow there if allowed to take their *669 natural course. To thus wrongfully cause water to flow upon another’s land which would not flow there naturally is to create a nuisance per se. “It is an injury to the right, and it cannot be continued because other persons (whether jurors or not) might have a low estimate of the damage which it causes.” (Learned v. Castle, 78 Cal. 454.) Mr. Wood says: “Every such act is an invasion of another’s right, and is actionable because of the injury to the right, whether the damage be great or small. Indeed, the act is wrongful per se and in its inception, and is actionable without any special damage.” (Wood on Nuisance, sec. 376. See, also, sec. 782.) An obvious distinction between injury and damage, not always observed in dealing with the question before us, is clearly pointed out by Mr. Wood. (Id., sec. 783.) Speaking of a man’s right of dominion over his property and the jealous care with which courts have guarded this sacred right, the author says: “Whatever invades this right is a legal injury, whether damage ensues or not. It is a right, for the violation of which the law ‘imports damage to support it,’ and courts of equity have always interposed, in a proper case, to protect the right, without any reference to the question of actual damage, the motive which instigated the party to invoke its aid, or the benefits that he derives from the act.” (Id.) (Italics the author’s.) The principles upon which mandatory and prohibitory injunctions are granted do not materially differ. The courts are perhaps more reluctant to interpose the mandatory writ, but in a proper case it is never denied. It was said in Johnson v. Superior Court, 65 Cal. 567: “The jurisdiction of the' court to grant a preliminary injunction restraining the defendants from interfering with the flow of water pending the litigation cannot be doubted, and we cannot see that its jurisdiction is exceeded when it requires the removal of the means by which the diversion is made. The ultimate aim of the injunction is the undisturbed flow of the water. The objections to the removal of the means by which the diversion is made are no more cogent than the objections to preventing the diversion of the water itself.” As the court has jurisdiction, the only question is, Has it properly exercised its jurisdiction? We need not pursue the subject further. On the showing made in the bill of exceptions- it clearly appears that *670 “the construction of said dams [by defendants] would and did arrest and divert water and cause the same to flow upon the lands of plaintiff as last above found, which would not naturally flow through in times of flood and high water”;, and by the finding of the court, presumably on sufficient evidence, the effect of these dams in so diverting the water would be to “destroy a great number of his [plaintiff’s] trees growing upon said lands, and would excavate deep gulches and .watercourses diagonally through plaintiff’s land,” rendering a considerable portion of it and the orchards thereon useless,, and cause plaintiff and the said land irreparable injury. This was quite sufficient, in our opinion, to warrant the court in granting the^relief given by the judgment. (Rudel v. Los Angeles County, 118 Cal. 281.) - The second point may be briefly disposed of. Whatever was the effect on plaintiff’s land from any defective construction of the railroad company’s roadway, or locations of its: culverts, defendants cannot justify or defend their acts on the ground that they were endeavoring to obviate the mistakes of the railroad company and failed. Conceding their right to-go on their own land for this purpose, the fact remains, as found by the court, that it was defendants’ dams that were the cause of the injury. The dams did not merely reinstate-natural conditions; they created new conditions. What the court stated it would have held had the facts been otherwise-is immaterial and presents no question now for review. We advise that the judgment be affirmed. Gray, C., and Cooper, C., concurred. For the reasons given in the foregoing opinion the judgment is affirmed. Van Dyke, J., Angellotti, J., Shaw, J.