Corcoran v. City of Benicia , 96 Cal. 1 ( 1892 )

Foote, C.

— This an action to abate a nuisance, and for damages. A demurrer was filed to the complaint, one of the grounds of which is, that it did not contain facts sufficient to show a cause of action. The demurrer was sustained, and the plaintiff declining to amend the complaint, judgment was given and made for the defendant, from which this appeal is taken.

It is plain that the alleged nuisance in this case arose from the prevention of the flow of surface water from, the defendant’s lot down to a swamp adjacent to the straits of Carquinez, by the raising of the grade of a street' of defendant, a municipal corporation. This improvement of the street was made in accordance with lawful authority, unless it be held that the backing up on plaintiff’s lot of this surface water, by raising of the grade of the street, made the city liable in damages for the-creation of a nuisance in the shape of pools of water, which, it is alleged, were thus created on plaintiff’s land. It has been held in this state, in Conniff v. San Francisco, 67 Cal. 25, that embanking and damming the natural channel for the escape of water so as to force it back upon a private owner’s lot would render the city liable, but it was also conceded by the decision in that case, at page 48, that such a corporation would not be responsible for damages caused by the gathering of “ the surface waters not running in a natural channel produced by the raising of a street to the grade established by law.” So the law is held to be in 2 Dillon on Municipal Corporations, sec. 1039; Waters v. Village of Bay View, 61 Wis. 644; Henderson v. City, 32 Minn. 319; Stewart v. City of Clinton, 79 Mo. 612; Clark v. City of Wilmington, 5 Harr. (Del.) 244. In which last case it is said: “ The collection of water on lots which are below the grades of new streets is inevitable, and, excepting the case of a running stream, the. city would have no power, and it is not legally bound, to draw off the water.....The nuisance is not in the street, but on the lot, and the remedy is by raising the lot to a level with the street, which the city is not bound to do.”

From this view of the matter, it is clear that the demurrer was properly sustained, and that the judgment ought to be affirmed, and we so advise.

' Temple, 0., and Belcher, 0., concurred.

For the reasons given in the foregoing opinion, the judgment is affirmed.

Paterson, J., Garoutte, J., Harrison, J.

Hearing in Bank denied.