Learned v. Castle

McFarland, J. On hearing in Bank. This is an action for damages for an alleged nuisance, and for a mandatory injunction to prevent its continuance. The nuisance or nuisances charged consist in this: Northeast of plaintiffs’ lands there is a stream or slough called Stone Slough or Bear River, and between that stream and plaintiffs’ lands there are other (smaller) natural sloughs. Stone Slough and the other said sloughs run in a southwesterly direction. Stone Slough, at a point about three miles from plaintiffs’ lands, is tapped by a canal," constructed by defendant Christian and others, which carries its waters westerly to and across the said other sloughs, in which obstructions were placed by defendants in order that the water might be prevented from flowing down the sloughs, and forced to follow the canal. It is averred in the complaint that if the said obstructions were not placed in the said sloughs, the water brought there by the canal would flow naturally down the sloughs and away from plaintiffs’ land; and that by reason of said obstructions and canal the water was caused to flow on to plaintiffs’ land, to their great injury. Plaintiffs also aver that they (plaintiffs) put an embankment across said canal at a point on a road called the Davis road, which was sufficient to protect their land — 457 — from said water, and that defendants wrongfully entered upon said embankment and removed it, and thus allowed said water to run on their land, to their damage, etc. At the trial some issues were presented to and passed upon by a jury. These findings were adopted by the court. Other findings were then made by the court, and judgment was given for defendants. Plaintiffs appeal from the judgment, and from an order denying their motion for a new trial. The cause was heard here in Department Two, and an opinion was delivered affirming the judgment. We adopt that opinion so far as it determines that the complaint was sufficient, and that the alleged acquiescence of plaintiffs’ grantor, Yolland, did not constitute a defense to plaintiffs’ cause of action for an injunction. The action was not barred by the statute of limitations. But upon a more thorough consideration of the case, after argument on rehearing, we are satisfied that the findings are fatally conflicting and contradictory, that they do not support the judgment, and that in a material respect they are not supported by the evidence. The action was commenced in August, 1878; and the first main damage to plaintiffs’ land by the said alleged turning of the water upon it is averred to have taken place in January and February of that year. There is no doubt that in those months a very large quantity of water was caused, by said acts of defendants, to flow upon plaintiffs’ land. It happened, however, that at that time, owing to unusual floods, other large quantities of water also flowed upon plaintiffs’ land from natural sources; and this coincidence seems to have been the cause of much of the confusion and conflict which appear in the findings of the court and the answers of the jury to the issues presented to them. It seems to have been thought that, as the water which flooded the land from other sources would probably, or certainly, have caused the damage averred in the complaint, if the water caused to — 458 — flow there by the acts of defendants had not been mingled with it, therefore the latter should not be considered as having added much to the injury. (It may be remarked, however, that it is difficult to find the principle upon which damage done by commingled water, coming from two sources, can be attributed to one of the original sources rather than the other.) The thirteenth finding of the court is as follows: “That the said obstruction in the natural sloughs is not an obstruction to the free use of plaintiffs’ property, and does not interfere with the enjoyment thereof, and that the removal of said embankment across said canal in the Davis road does not prevent said plaintiffs from the free use and enjoyment of their said property.” But in the tenth finding the court finds “that none of the waters diverted by the canal would have flowed upon the plaintiffs’ land, if allowed, without interruption, to take their natural southwest course and direction to the river; and the embankment on the south side of the canal, on Christian’s and other lands, cause waters to flow upon plaintiffs’ land which would not flow there if the embankments, were removed.” In the eighth finding it is found that in 1878 some of the waters of Stone Slough flowed through the canal onto plaintiffs’ land. The jury, whose findings were adopted by the court, found, among other things, as follows:— “ 7. Q. —What is the natural direction of the waters of Stone and the other sloughs east of the road, as they flow to the river ? A.—Southwest. “8. Q.—Would any of the waters which are diverted by the canal flow upon plaintiffs’ land if allowed, without interruption, to take their natural courses to the river? A.—No. “ 9. Q. — Do any of the waters diverted by the canal flow upon the lands of plaintiffs? A.—Yes. “13. Q.—Were the waters diverted by the canal in 1878 the predominant and proximate cause of damages — 459 — sustained by the plaintiffs from the water in 1877 and 1878? A.—No. x “14. Q.—Did other waters or other causes other than the waters of the canal materially contribute as causes of the damages claimed by plaintiffs? A.—Yes. “15. Q.—If the jury answer Yes to the last question, and find that the damages claimed by plaintiffs were caused by the joint action of waters from the canal and waters from other sources, then the jury will answer, if possible, how much damage was caused by the waters of the canal. A.—One dollar. “18. Q. — Do the embankments on the south side of the ditch on Christian’s and other lands east of the road cause any waters to flow upon plaintiffs’ lands which would not flow there if the embankments were removed ? A.—Yes.” The court also found (finding 9) that plaintiffs were not damaged by the said acts of defendants “to any extent greater than in the sum of one dollar.” It is apparent, we think, that the findings above quoted are inconsistent and contradictory; and that the contradiction thus presented is not merely formal and about things not essential,—such as frequently creeps into findings inadvertently. The contradiction is, in our opinion, important, material, and fatal to the judgment. For instance, how can the thirteenth finding (upon which the judgment rests), that the results of the acts of defendants are “ not an obstruction to the free use of plaintiffs’ property,” and do “not interfere with the enjoyment thereof,” etc., be reconciled with the other findings? And how can it stand if the other findings be true? In the other findings it is declared that the natural course of the sloughs east of plaintiffs’ lands is to the southwest; that none of the waters of said sloughs, diverted by the canal, would flow upon said lands if allowed to take their natural courses to the river; that the waters diverted by the canal do flow upon said lands; — 460 — and that the embankments on the south side of the canal do cause waters to flow upon plaintiffs’ lands " which would not flow there if the embankments were removed.” These findings cannot be true if it be also true that there was no interference with the “ free use and enjoyment ” of plaintiffs’ property. There can be no more marked interference with a man’s free enjoyment of his property than to wrongfully cause wrater to flow onto his land which would not flow there naturally. And how can we take one of these findings as true, and disregard others which are directly contradictory of it? The rule on this subject may safely be said to go this far, at least, —that where there are contradictory findings about matters material to the merits of the case, and the determination of which, one way or the other, is essential to the correctness of the judgment, there the judgment cannot stand. If one part of the contradictory findings would support the judgment, and another part ■would necessarily upset it, then the judgment must be reversed. (Kerns v. McKean, 65 Cal. 411; Randall v. Hunter, 66 Cal. 512; Gilman v. Curtis, 66 Cal. 116; Sloss v. Allman, 64 Cal. 47; Richards v. Dower, 64 Cal. 62; Carman v. Ross, 64 Cal. 249; Reese v. Corcoran, 52 Cal. 495.) The finding that the damage done to plaintiffs’ land in 1878 by the water which defendants caused to flow there was only one dollar, does not affect the merits of the case. In the first place, we do not see how that finding can be held to be supported by the evidence. It clearly appears in the evidence that at that time plaintiffs were largely and seriously damaged by water flowing onto and over their land, and that a very large part of that water was caused to flow there by the acts of defendants. It is true that when the damage was done at that time, the water from the canal was mingled with water from other sources, which (it may be admitted) was of a larger volume than that of the water brought — 461 — there by defendants; and it may have been difficult to separate the mingled elements of mischief, and calculate with any great exactness the proportionate amount of damage done by each. But surely there was no warrant for finding that all the damage was done by the other water, and none (practically) by the water poured onto plaintiffs’ land by the canal. A wrong-doer who contributes to a damage cannot escape entirely because his proportional contribution to t'he result cannot be accurately measured. (In a case like the one at bar, it would be at least as near justice to hold him for all the damage as to hold him for none.) And we think the evidence did not warrant the finding that the damage caused by the acts of defendants was to the extent only of one dollar. But the amount of the damage, estimated in money, was immaterial. That finding was only as to the damage done in 1878, when there was water on the land from other sources. The findings show that the waters diverted by the canal “flow” upon plaintiffs’ land, which would not flow there if allowed to take their natural course; and that the embankments erected by defendants “cause” such artificial flowing. And 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. And especially is this so when the continuance of the wrongful act might ripen into a right in the nature of an easement or servitude. (Richards v. Dower, 64 Cal. 64, and cases there cited: Tootle v. Clifton, 22 Ohio St. 247; 10 Am. Rep. 732; Casebeer v. Mowry, 55 Pa. St. 419; 93 Am. Dec. 766; Wood on Nuisances, 2d ed., p. 639.) The right to an injunction, therefore, in such a case does not depend upon the extent of the damage measured by a money standard; the maxim, De minimis, etc., does not — 462 — apply. The main object of the action is to declare a nuisance, and to prevent the continuance by a mandatory injunction. There is nothing in the point that with respect to the removal of the embankment across the canal, the defendants are not maintaining or keeping it up. “ It is an injury which keeps itself up.” Our opinion therefore is, that for the reasons above given the judgment should be reversed. Judgment and order appealed from reversed, and cause remanded for a new trial. Works, J., Shabpstein, J., and 'Bílatty, C. J., concurred. Paterson, J., did not participate in the decision of this above cause.