Opinion
Rehearing Denied May 11, 1929
Hearing Granted by Supreme Court June 10, 1929
Appeal from Superior Court, Colusa County; Ernest Weyand, Judge.
Action by Reclamation District No. 833 and others against the American Farms Company, a corporation. Judgment for defendant, and plaintiffs, other than the one first named, appeal. Reversed, with directions.
COUNSEL
George F. Jones, of Oroville, and Jerome D. Peters, of Chico (W.H. Spaulding, of San Francisco, of counsel), for appellants.
George E. Crothers, C.A.S. Frost, and Treadwell, Van Fleet & Laughlin, all of San Francisco, for respondent.
OPINION
MONCUR, Justice pro tem.
This is an appeal from a judgment of the superior court of Colusa county in an action brought by plaintiffs to restrain the respondent herein from draining waters used by said respondent for irrigating rice grown on its property, down to and into the drainage works of appellants. The appellants herein, drainage district No. 100 and Butte Creek drainage district are drainage districts located in Butte county containing approximately 20,000 and 35,000 acres, respectively. Reclamation district No. 833 is a reclamation district containing approximately 38,000 acres, also located in Butte county. Reclamation district No. 833, however, is not a party to this appeal; it having withdrawn from the case immediately prior to the trial in the superior court. Appellant districts were organized for the purpose of draining water, after its use for the irrigation of rice on land in Butte county, so as to convey it into the Sacramento river without causing damage to land lying below the districts.
It appears from the evidence that, for many years prior to the growing of rice in Butte county, the water of Butte creek, each year during the summer and fall months, spread over thousands of acres of land in Colusa county known as the Butte basin, and had no natural outlet into the Sacramento river until such time as the winter water flowing down Butte creek raised this water level of the Butte basin and caused it to flow over the rim thereof into Butte slough, and thence into the Sacramento river. However, after the commencement of rice culture in Butte county, the summer and fall flow of water from the drainage of these rice lands increased to such an extent that the level of water in Butte basin was raised in the months of September and October to an elevation which caused lands around the rim of the basin to be flooded, thereby damaging the crops of the owners of these lands. This situation resulted, in the year 1919, in the granting of an injunction, by judgment of the superior court of Colusa county, against the individuals owning lands in appellant districts, who were then growing rice. These rice growers were enjoined from continuing the flow of water into Butte basin, to the damage of individuals and corporations owning land therein. A large number of landowners in reclamation district No. 833 were also parties defendant to this action and made subject to the injunction. Respondent American Farms Company was not, at the time of the commencement of said action in 1919, engaged in the business of raising rice. As a result of this injunction, appellant districts were organized for the purpose of constructing works necessary to convey this drainage water a distance of approximately 20 miles, first, through Butte creek, to which it was brought by smaller natural channels and artificial cuts, thence into the Butte sink or basin, and from the Butte sink through an artificial cut, locally known as Moulton cut, into Butte slough, and thence into the Sacramento river. In the organization of these districts, the acquisition of flowage rights, and the construction of drainage works, a large amount of money was expended. Respondent owns about 2,200 acres of land in Butte county, which is not in any drainage district. Through this land are several waterways, one of which is known as Cottonwood creek. No water naturally flows in these channels during the months of September and October of each year. All of them converge into the Cherokee canal, at a point a short distance below the south boundary line of respondent’s land, and the Cherokee canal in turn empties its waters into Butte creek, and thence into Butte basin. The drainage works of appellants are located approximately 16 miles in a southerly direction from the southern boundary of respondent’s property. Respondent had devoted about 75 acres to the growing of rice in 1915, and some 140 acres in 1917 but it was not until 1921 that it engaged in the rice-growing business upon a large scale, some 300 acres being planted in that year, and thereafter, until 1926, it had grown from 350 to 675 acres each year. For the purpose of irrigating its rice land, the respondent drilled eight deep wells from which, by pumping, it developed a flow of water varying from 1,600 gallons to 1,900 gallons per minute per well. After using this water for irrigation, the surplus was drained into Cottonwood creek, from which it flowed into the Cherokee canal.
It is the contention of appellant that said water, after flowing into Cherokee canal, finds its way down through the various waterways until it reaches the canals and works of appellant districts, and that respondent is seeking to enjoy the benefits of the large expenditures made by appellant districts and by reclamation district No. 833, in the way of cuts, levees, flowage rights, ditches, etc., without joining in and bearing its fair share of the costs thereof, and that the flowing of this drainage water from the land of respondent through the canals and works of appellant districts constitutes a continuing nuisance, which the appellant districts are entitled to enjoin. Respondent contends that it has the right to flow its drainage waters into natural channels in the ordinary course of rice farming, and that, if such natural channels carry said water through the works of the drainage districts, it is not the legal right of the districts to enjoin it from so doing. In other words, that it has the inherent right to flow this water into any natural waterway existing on its land, no matter where it flows thereafter.
The court found that appellant districts were the owners of certain rights of way and easements in what is known as the Butte sink, consisting of flowage rights, canals, and levees as follows: An artificial canal and waterway known as Moulton cut, which diverts the water of Butte slough out of and away from Butte slough and through Butte basin; a certain drain known as Butte drain at the lower end of Butte basin, together with certain weirs and levees by which the water in Butte creek basin may be raised or lowered; that respondent farms a portion of its lands to rice, and during all the times mentioned in the complaint continuously had been irrigating, with water pumped from beneath the surface of the land, the land above described, by means of several deep well pumps; that the water so pumped is part of the percolating waters of the watershed upon which said respondent’s land is situated; that the waters thereof so brought to the surface, and which are not consumed in such irrigation, are drained upon defendant’s said land into natural and ancient water courses, only to the extent necessary in the proper, reasonable, and careful irrigation of said land, and without flowage or seepage upon any property of plaintiffs, and without seepage or flowage out of the natural channels of said natural water courses; and all of said land of the defendant is within the watershed of certain natural water courses which naturally drain into Butte slough, and all of the water drained from said land drains through said water courses into the said Butte slough, but there is no evidence showing that any thereof ever reached any of the canals, works, or easements of the plaintiffs, and the same could only reach the same by being artificially diverted by the plaintiffs, from the said Butte slough through the said Moulton cut; that said respondent intends to continue to drain said water from its rice lands into the said natural water courses, but does not threaten to drain the same into any canals, ditches, or easements of plaintiff districts, and there is no evidence showing that the said water has ever in any way damaged the said rights of way or easements of plaintiffs, or that the same will in any wise damage or injure the same, and it is untrue that, if the same should continue, it will ripen into any easement or right against the plaintiffs.
We will first consider the contention of respondent that it has the right to flow its drainage water into natural channels on said land in the ordinary course of rice farming, and that, if such natural channels carry said water through the works of the drainage districts, it has the right so to do, irrespective of where the water flows after leaving the natural channels on its own land. In support of its contention, respondent cites many cases, but it is our opinion that none of the California cases cited apply to the facts shown by the record in this case; the rule in such matters in this state being different than the rule as found by the courts of a number of the other states. Rather does it seem to us that the rule applicable herein is that stated in the case of Learned v. Castle, 78 Cal. 454, 18 P. 872, 21 P. 11, from which decision we will quote later on in this opinion. It seems to us that from the evidence in this case it clearly appears that, at the time of the commencement of the action in 1919, had respondent been growing rice and discharging the surplus waters into the said natural waterways, it would have been a proper party to the action, and would have been subject to the same injunctive process as were the other rice growers.
We quote the following testimony of Mr. Polk, a witness for plaintiffs, as follows:
"Q. Now, Mr. Polk, you have shown these drainage districts, and I will ask, for what purpose were these districts organized? A. Primarily, for the purpose of taking care of the drainage waters caused by the irrigation of rice.
"Q. And what was the necessity of taking care of that? A. The necessity was caused by injunction suits having been brought by certain lands in the lower end of the Butte Basin known as the Moulton lands; and injunction suits were brought by them against the districts and other parties preventing the drainage of rice water on account of damage to bean crops and other crops.
"Q. Now, Mr. Polk, what is the watershed of this territory embraced within the districts, also embracing the lands of the defendants— the watershed; which way does the water flow; where is its natural outlet? A. Its natural outlet is in the Butte Basin; down Butte Creek and tributaries thereof and into the Butte Basin.
"Q. Now, originally, where did that water go; say around 1910 or 1915? A. Originally went into the Butte Basin, which is in the nature of a swamp, a basin, and collected all the water from Butte Creek and didn’t really have any outlet excepting in flood times. ***
"Q. Now, then, what if anything was done to perfect an outlet for the waters placed within the Butte Basin? A. Prior— about the time the rice water began flowing into that territory the people owning what is known as the Moulton lands, dug a certain cut or canal from that into Butte Slough, through the rim on the edge of the basin.
"Q. And the purpose of that Moulton Cut was what? A. To lower the water table in the basin caused by the drainage waters coming in. ***
"Q. What physical effect did the digging of the Moulton Cut have on that locality? A. Tend to lower the surface of the water in the basin, which was spreading out over the cultivated lands adjacent to the basin. ***
"Mr. Peters: I will ask you the hypothetical question: From your experience and knowledge as an engineer would you say whether or not water drained from 300 acres of rice in section, say 7, township 19 north, range 3 east, and into the Cherokee Canal, would find its way down Butte Creek into Butte Basin and through the easements and rights of way of the plaintiff districts? A. I believe some of it would."
On cross-examination the witness testified as follows:
"Q. Now, what injury would happen to this Cut, Butte Creek Drain, from May to October, if any, by having, say two or three second feet of water come through more than would otherwise come? A. Just two second feet additional?
"Q. Yes. A. And only two?
"Q. Yes. A. Pretty hard to answer that; might have been full enough so two second feet would run it over the edge the same as putting another drop in the bucket.
"Q. Have you any reason to believe that it was so in 1926? A. Oh, no, it being an accumulation of that particular two feet of other water and two feet continuously from other sources would do the damage."
We also quote from the testimony of Harry F. Cauthard, a witness for plaintiffs, as follows:
"Q. From your experience as an engineer would you say whether or not water from 300 acres of rice, drained off the same, say, section 1, township 19 north, range 2 east, whether or not the water so drained would find its way into Butte Creek and thence on down into Butte Sink through the rights of way and easements of the District and into the Sacramento River? A. It would."
The following testimony of Frank S. Robinson, a witness for defendants, is quoted.
"Q. Well, now, using these methods, can you state in an approximate way the amount of that run-off from the American Farms property? *** A. My measurements didn’t start until some time the early part of September.
"The Court: 1926? A. 1926.
"Mr. Treadwell: And continued until about what time? A. The early part of October, I believe; I haven’t the dates exactly.
"Q. From your knowledge of rice culture would that period be the period of high run-off or low run-off? A. Probably the highest run-off occurred during that period or shortly succeeding.
"Q. Well, then, give it for that period the best you can? A. You refer to the run-off from the property itself or— .
"Q. (Int.) Yes. A. My figures show that when I started there was an approximate run-off of two second feet, which increased to approximately ten second feet and dropped again— I beg pardon, I am misstating there— the run-off from the American Farms Company property itself varied from approximately two second feet to four second feet."
Nowhere does it appear in the record that there is any contradiction of the testimony of Mr. Polk that, if there were no interference with the drainage of irrigation waters from respondent’s land, they would not naturally commingle with the other waters discharged into the various waterways by the rice growers and eventually find their way down into the natural drainage areas referred to in the evidence. It appears without contradiction, therefore, that respondent’s irrigating waters, amounting to from two to four second feet, are discharged into the said natural waterways on its lands; that said waters are mingled with other surplus irrigating waters from rice lands, and all of such mingled waters ultimately find their way down to, into, and through the works of appellants. Therefore, even if some of the said waters are taken out of said waterways below respondent’s property, and used for irrigating rice, yet it cannot be said that thereby appellants’ works are not subjected to the use by respondent of carrying the latter’s surplus irrigating waters.
What is said in the case of Learned v. Castle, supra, seems to be particularly applicable, therefore, to the evidence in this case: "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 there by defendants; and it may have been difficult to separate the mingled elements of mischief, and calculate with any great" extent of "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 wrongdoer who contributes to a damage cannot escape entirely because his proportional contribution to the 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 damages 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 [28 P. 113], and cases there cited; [Tootle] v. Clifton, 22 Ohio St. 247, 10 Am.Rep. 732; Casebeer v. Mowry, 55 Pa. 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 maximum, de minimis, etc., does not apply, the main object of the action is to declare a nuisance, and to prevent the continuance by a mandatory injunction."
In Galbreath v. Hopkins, 159 Cal. 297, at page 301, 113 P. 174, 176, the court said: "It is, of course, clear under the law that unless the defendants have acquired a right by prescription to discharge the water from the pond by artificial means upon the land of plaintiff, they have no right to do so at all. While the owner of upper land has the right to have the waters from his land flow in their natural course down upon the lands below, he has no right, by the construction of ditches or other artificial means, to turn waters which have naturally accumulated in ponds or depressions on his land upon the land of his neighbor lower down (Ogburn v. Connor, 46 Cal. 347, 13 Am.Rep. 213; Gray v. McWilliams, 98 Cal. 157, 35 Am.St.Rep. 163, 21 L.R.A. 593, 32 P. 976), and where water is thereby caused to flow upon the land of another which would not naturally flow thereon, this is an invasion and injury to his right of property and a nuisance per se, the continuance or maintenance of which he has the right to have enjoined. (Learned v. Castle, 78 Cal. 454, 18 P. 872, 21 P. 11; Wood v. Moulton, 146 Cal. 317, 80 P. [92].)"
The water which respondent develops on its land by means of pumps is not natural water or water riparian to the land of said company. Mayberry v. Alhambra Addition Water Co., 125 Cal. 444, 54 P. 530, 58 P. 68; Butte Canal Co. v. Vaughn, 11 Cal. 143, 70 Am.Dec. 769; Paige v. Rocky Canal Co., 83 Cal. 84, 21 P. 1102, 23 P. 875. Under the rule as stated in Learned v. Castle, supra, and cases therein cited, respondent would have no right to so flow such surface irrigating waters that they would flow down to and into respondent’s works. We are satisfied, therefore, that the finding of the court hereinbefore referred to not only failed to find upon the material issues involved in this action, but also that, where there is an attempt to so find, such findings are contrary to the evidence.
Finding No. IX is hereby amended to read as follows: "That the defendant, American Farms Company, in the enjoyment and occupation of the real property above described, is now farming the same, to wit, a portion thereof consisting of 434½ acres or thereabouts to rice; and it is now and during all the times mentioned in said complaint continuously has been irrigating, with water pumped from beneath the surface of the land, the land above described by means of several deep-well pumps; that said wells consist of eight wells varying in depth from 520 to 575 feet; that the water thereof is part of the percolating waters of the watershed upon which said defendant’s land is situated; that the waters thereof are brought to the surface by means of pumps and used in irrigating defendant’s said lands, and the portion of said water which is not consumed in such irrigation is drained upon defendant’s said land into natural and ancient water-courses only, and that said waters do flow or seep down to, upon and through the property of plaintiffs."
Finding No. X is hereby amended to read as follows: "All of said land of the defendant is within the watershed of certain natural water-courses which naturally drain into Butte Slough, and all of the water drained from said land drains through said water- course into the said Butte Slough; that said water so drained from defendant’s land commingles with other waters drained from other rice lands within the boundaries of appellant districts, and flow down to, into and through the canals, works and easements of said plaintiffs."
Finding No. XI is hereby amended to read as follows: "That said defendant American Farms Company intends to continue to drain said irrigation water from its rice lands into the said natural water-courses, and does threaten to drain the same into the canals, ditches and easements of the plaintiff districts, and will continue so to drain said irrigation water from its said lands unless restrained by this court, and that if permitted to continue to drain said irrigation water, as aforesaid the same will damage and injure the plaintiffs and will ripen into an easement or right against said plaintiffs."
Also, the further finding is hereby added: "That said action is not barred by the provisions of sections 1006 and 1007 of the Civil Code of the State of California, or by either of said sections, and/or by the provisions of sections 318 and 319 of the Code of Civil Procedure of this State."
It is further ordered that the conclusions of law be amended to read as follows: "From the foregoing facts the court finds and decides that defendant American Farms Company be enjoined and restrained from draining or permitting to flow, or permitting to seep from its land water pumped from wells upon the property of said defendant, into, over, across or through the canals, drainage ditches and easements of plaintiff drainage districts, or either of them. That plaintiff drainage districts recover their costs of suit."
The judgment is reversed, and the trial court is directed to enter judgment for plaintiffs in accordance with the findings as hereinbefore amended.
We concur: FINCH, P.J.; THOMPSON, J.