Los Angeles herald., 1892-10-29
The End Of Mrs. Bakers Suit
Against the Santa Fe.
A Justices Queer Complaint Against
Juan Canada. sc3t
Yesterdays Happenings In the Various
Courts-Notes OF Cases Acted
Upon-Nsw Suits
Filed.

county, was finished yesterday.
1t has been on trial for two weeks
past, and large number Of witnessel
were examined. The suit brought by
Mrs. Arcadia B. de Baker was, as hai
been stated before. to recover damages
to the amount OF $155. 5.705.26, claimed tc
have been done to her Laguna rancho,
southeast Of the city, in the winter ol
1889, by an overflow Of the Los Angeles
river from the floods of that year. The
plaintiff claimed that the break in the
river was due to the levee constructed
by the railroad on the west bank Of the
river within the city limits, alleging
that 1t was so built as to narrow the
channel, defect the river, and directly
cause the cutting out OF new channel,
by which portions of the ranch were
overflowed.
The railroad company in defense
claims that it had the right to protect
its own property by building the levee,
and that the food in question was an
unprecedented one, which could not be
guarded against.
The case involved large amount of
expert testimony as to the construction
of the levee, and the high old times
which the river has had from the pres
ent time to the beginning of the CEN
tury.
The extreme importance of this case
to the railroad company arises from the
fact that large number of property
owners who were damaged by the same
food are aw aiting it's outcome. A num-
Der Of suits have already been COM
menced, and others have been awaiting
q decision favorable to Mrs. de Baker to
follow suit.
The case has been ably conducted on
both sides; by Wells, Monroe & Lee for
the plaintiff, and Judge Anson Brunson,
chief counsel of the Santa Fe at Los An
geles, and D. P. Hatch of this city.
Arguments were concluded yesterday
morning, and the instructions occupied
considerable time, being modified as
they were given by Judge Van Dyke. A
brief synopsis of the Instructions will be
of interest.
THE INSTRUCTIONS.
The instructions for the plaintiff were
at considerable length and were in sub
stance, that If the levee built by defend
ant was negligently built in an improper
place or improper manner, caused the
channel of the river to be changed from
where 1t formerly ran aud caused the
water of the river to run through q new
chanpel across plaintiffs land, the de-
fendant is liable for the damage caused
by the cutting OF such new channel and
the damage done. To cause water to
flow wrongfully upon another's land
which would not flow there naturally is
to create a nuisance and the party Great
ing it is liable for the damage.
II the jury believes from the evidence
that the levee was negligently con-
structed by the defendant, and that by
reason thereof it caused the water of the
river to flow out of it's channel and onto
plaintiffs land and destroyed any por-
tion OF the same, the defendant is liable
for such damage.
It is no defense that the damage was
done in the time of an extraordinary
food if the danger was known to the
defendant, or could have been ascer-
tanned by inquiry. If the levee was
built negligently or improperly in the
bed of the river, it is no excuse for de.
defendant that it was 80 built to protect
it's own property. There is no question
in this case about any permission of the
city to build the levee. The defendant
had no right to bnild levee in the bed
of the river SO as to obstruct it's natural
flow, and although party owns Che bed
of the stream, that does not entitle him
to build an obstruction in the stream
that will damage other land than his
own. Negligence is defined as the omis-
sion to do something which reasonable
man, guided by those considerations
which ordinarily regulate the conduct
of human affairs, would do, or doing
something which prudent and reason
able man would not do. 1t was the duty
of defendant to sufficiently provide for
the proper conduct and escape for the
water OF not only ordinary foods but
also of waters of such unusual or ex-
traordinary floods as it should have
anticipated would or might occasionally
occur in the future, as they
had actually occurred after inter-
walls, though of irregular duration,
in the past. If the jury finds
that the defendant did fail to so provide,
they are instructed to find for plaintiff.
The plaintiff admits that the defendant
was the owner of the lands west of the
levee, is an incorporated company, and
the defendant corporation assumed the
obligations OF the different railroad cor
porations which were consolidated un-
der the name of the Southern California
Railroadscompany.
The instructions for the defendant
were substantially thatin civil cases like
the present. the affirmative of the issue
muet be proved by the party alleging it,
and when the evidence is contradictory
the decision must be made according to
the preponderance of the evidence.
Nothing done or maintained under the
express authority of the statute can be
deemed nuisance; and they expressly
authorize, among other things, railroad
companies to construct their roads
across, along or upon any stream of
water or water course in the state. in
such manner as to afford security for life
and property. But the corporation shall
restore the stream to its former state of
usefulness as near as may be.
If the defendant had the right to
build its road and the levee, it
could not be required to exercise
greater care than prudent persons
would under similar circumstances. The
defendant was not bound to indemnify
the plaintiff for all damage, which could
have been avoided by any possibility,
but only such as resulted from want Of
ordinary care. Hone chooses of his own
authority to interfere with q water
course, even upon his own land, he, as
3 general rule, does it at his peril as re-
epects other proprietors above and be-
low him; but the rule is different where
one acts under authority of law There be