Sacramento daily record-union., 1890-04-02
LEYEE BUILDING.
IMPORTANT DECISION THEREON BY
THE SUPREME COURT.
Not Stand in the Way of Those
Who Would Be.

There was filed by the Supreme Court
yesterday IN interesting decision in the
case of E. Mcdaniel, appellant, VS.. NJ.
Cummings, respondent. The defendant
owns the west half of certain section,
No. 26, in Colusa county. Plaintiff owns
land adjoining on the west. Still further
to the west, at a distance of about two
miles from plaintiffs land, the Sacramento
river flows from north to south. The land
next the river is the highest, there being a
gradual descent from the river bank to and
beyond the land of defendant. When the
river rises above the level of its banks, as
IL generally does several times during every
rainy season, the water flows off to the
east or southeast, across the land of the
plaintiff, and other lands similarly situ-
ated, to and across the land of defendant
and other lands in the same relative situa-
ton. 1t does not flow ir any narrow or de-
fined channel or channels, but in broad
sheet covering a wide surface.
When the river falls below the level of
the banks the overflow cannot, of course,
find its way directly back into the stream,
and consequently the lands near the river
are drained by the spread and flow of
water toward the east and southeast, across
the lower lands such as those of defendant.
Left unobstructed in their natural and ac-
customed flow, these waters soon pass
beyond the plaintiffs lands, leaving them
tit for cultivation. But recently the defend
ant without intending to ipjure the plain
TIL, and acting upon the bona fide belief
that he had the right so to do. commenced
and was proceeding to complete levee or
embankment along his west line the neces-
sary effect of which will be to prevent the
flood water from passing over his land, and
to set it back upon the plaintiffs land,
causing it to cover a larger area thereof,
and to remain thereon for longer period
than it otherwise would.
The plaintiff thereupon commenced an
action to eujoin the defendant from erect
ing or maintaining said levee. A tempo
rary injunction was issued upon the filing
of the complaint. Afterward, on motion
OF the defendant, and upon affidavits show
ing the state of facts above set forth, the
Superior Court dissolved the injunction on
the ground that the defendant il erecting
and maintaining his levee was acting with
In and according to his rights From this
order dissolving the injunction plaintiff
appealed, and on September II, 1889, an
opinion was filed by the Supreme Court re-
verslng the order upon the authority of
Ogburn VS.. Connor, 46 Cal. 346 A rehear-
ing was subsequently granted upon petition
filed on the part of the defendant in which
the correctness of the decision in Ogburn
VS.. Connor is assailed. as is also the con-
St tN e ~ 4. .--.1
Code.
Chief Justice Beatty, who writes the
opinion, says: II think there can be no
doubt that we were in error in holding that
Section sol of the Civil Code gives to the
owner of higher land an easement for the
discharge of surface water upon lower ad-
Joining land. That section merely enumer-
ates the different kind of burdens or servi-
tudes upon lands that may be attached as
incident or appurtenant to the other lands
or, in other words, it is mere definition of
easements appurtenant, and makes no pre-
tense of prescribing or regulating the man.
ner of acquiring them.
If the owner of the land next to the
river will not, either by himself or in COM
bination with those behind him, erect a
levee on the oank, he ought not to be al
lowed to prevent them from protecting
themselves, merely because by so doing
they prevent his higher land from being
drained of the food waters as rapidly as it
otherwise would be. Because his land
may be cultivated without artificial protec.
ton, he ought not to be allowed to prevent
others from using proper means to make
their lands productive; and what is true of
the owner of the river bank is true in the
same sense of each successive owner back
OF him. 1t is the interest of all to COM
bine and share the expense of placing a
levee on the bank, by which all will be
protected; but if those in front will do
nothing for themselves, they must not be
allowed to stand in the way of those whose
necessities compelled them to act. Order
affirmed"