Richardson v. Kier , 34 Cal. 63 ( 1867 )

By the Court, Sanderson, J.:

There is some ambiguity in the complaint, for which the plaintiff must be held responsible. It contains a paragraph which evidently has some reference to the agreement of the 19th of March, 1863, between Ziegenbein and the Chamberlains, as if the pleader intended to make it the foundation, in part, of his action, but the agreement is not declared on in hose verba, nor according to its legal effect, and we cannot regard the action as founded upon it in any respect. In this view it becomes unnecessary to consider the effect of that agreement further than to say, that it is evidence tending to show that the ditch leading from Whisky Ravine to Coon Creek is the property of the defendant. We shall, therefore, for the purposes of our decision, consider the action as founded upon an alleged violation by the defendant of the maxim sic utere tuo ut alienum non Icedas.

As affecting the liability of the -defendant, the case made by the pleadings and the evidence has two aspects: first, regarding the ravine and the ditch leading from it to Coon Creek as a part of the Independent Ditch; and, second, regarding the Independent Ditch as terminating at the ravine.

Dnder both these aspects, we assume that the damages sustained by the plaintiff resulted from an overflow from the ditch, or ditch and ravine, and not from an overflow of Coon Creek. Of course, for damages caused by the latter, if any, the defendant is in no way responsible, so far as the case shows.

If the defendant has adopted the ravine as a part of his ditch, so that his ditch commences at Coon Creek, several miles above the plaintiff’s farm, and, crossing a part of his farm, terminates in Coon Creek, at a point below, he is bound to so use his ditch as not to injure the plaintiff’s land, irrespective of the question as to which has the older right or title. He is bound to keep it in good repair, so that the water will not overflow or break through its banks and destroy or damage the lands of other parties; and if, through any fault or neglect of his in not properly managing and keeping it in repair, the water does overflow or break through the banks of the ditch and injure the land of others, either by washing away the soil or by covering the soil with sand, the law holds him responsible. This, however, is to be taken with the qualification that where a ravine or natural watercourse is taken or adopted by a ditch owner as a part of Ms line of ditch, he is to be understood as so'doing only to the extent of the capacity of his ditch. If there is natural water running in the ravine so adopted, he is not responsible for an overflow, so far as it may have resulted from water not discharged into the ravine or watercourse by him. In other words, the overflow must have resulted in consequence of his use of the watercourse as a part of his ditch, or he is not responsible. Hence, if the defendant’s ditch commences and terminates at different points on Coon Creek, and Whisky Ravine is a part of it, the defendant is bound to ,see that the water conveyed by Mm through it does not overflow or break through; and if it does, through any fault or neglect of his, he is liable; but if the overflow would have taken place independent of his ditch, and limited use of the ravine as a part of his ditch, he is not liable. In the latter event any damages resulting to the plaintiff would be the effect of natural causes, for which the defendant could not be held responsible. “Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do; moreover it is not absolute or intrinsic, but always relative to some circumstance of time, place or person.” (Broom’s Legal Maxims, 329.)

If we assume, as claimed by the defendant, that his ditch terminates at the point where it intersects "Whisky Ravine, his duty and responsibility are not materially varied. If the plaintiff’s land has been overflowed and covered with sand, and thereby rendered less valuable by reason of the defendant’s having diverted the waters of Coon Creek, and by means of his ditch caused them to be discharged into Whisky Ravine instead of Coon Creek, thereby increasing the volume of water which would have otherwise flowed through the ravine, the defendant is responsible. Nor can he shield himself from responsibility because he may have sold the water to miners, who used it for mining purposes before it reached the ravine, if the water is delivered to the miners at a point from which it must unavoidably run into the ravine, and necessarily result in the injury complained of. In that event the miners are not the only tortfeasors. The act of the defendant is as wrongful as if he discharged the water into the ravine without first selling it. Without the water there would be no damage done, and it is furnished, or sent upon its errand of mischief, by the act of the defendant. The miners may be joint tortfeasors, but that question is not involved in this case. If the defendant finds it necessary or convenient to discharge the water from his ditch into Whisky Ravine, or at a point from which they will naturally, flow into that ravine, he is bound, to see that no injury results to the plaintiff in consequence of his act, and if it does he is responsible.

It is not necessary to notice specially the instructions of the Court. It is obvious on inspection that they are not in all respects consistent with the foregoing views.

The order denying a new trial is reversed and a new trial granted.