The Weinberg Co. v. Bixby , 185 Cal. 87 ( 1921 )

I concur in the judgment of reversal and in the main opinion except in its discussion of the liability of the two Bixbys because of the cut which they caused to be made in the levee which had been previously constructed along the southeasterly bank of the river. The main opinion would seem to hold that it may be there was evidence sufficient to justify the verdict against the Bixbys because of their having made this cut. In my judgment this is not true; the evidence shows that the cut was in nowise the cause of any injury done the plaintiff's land.

As I understand the main opinion, it applies to the present case the principles contained in the quotation which it makes from Jones v. California Development Co., 173 Cal. 565, [L. R. A. 1917C, 1021, 160 P. 823], and holds that while the defendants were under no obligation to maintain the embankments they had constructed, that is, either to prevent breaks therein caused by natural forces or to repair such breaks, yet they had no right to cut or remove those embankments, if they knew or should reasonably have known that the result of so doing would be to change the channel of the stream, and that because the evidence was sufficient to justify the possible conclusion that when the Bixbys cut the southeasterly levee they should have known that it would not improbably change the channel of the stream, it was sufficient to justify the verdict. With the proposition that the principles announced in Jones v.California Development Co. apply, I agree. I am not so certain that the evidence justifies any conclusion that the Bixbys should have known that the making of the cut would not improbably change the channel. Nor am I certain that the channel actually did change. There had been a flood water channel there before, and I am not certain that anything more appears than that the channel continued as a flood-water channel merely. But passing these doubts and assuming both that the channel was changed and that the Bixbys should have known that the cut in the embankment would not improbably cause it to change, the evidence, to my mind, shows conclusively that it was not in fact the cut that did cause it to change.

The cut in question was a small one — six feet across on the bottom. When the first flood came after its being made, the flood of January, 1914, the embankments on both sides were intact except for the cut. The flood was one of the highest known. It spread over the plain below the railroad trestle where the plaintiff's lands lie, practically from mesa to mesa, and flowed across this plain to the ocean. It would have done this if the embankments had been intact and had remained so. The embankments extended only a comparatively short distance into the plain, and the high waters of the river on reaching the ends of the embankments and being released from their restraint would have flowed around the ends and covered the entire plain, as they did. In fact, one of the witnesses for the plaintiff testifies that in the minor floods of 1912-13 the water "backwatered" around the ends of the embankments in just this fashion. The plaintiff's lands were a mile or more below the lower ends of the embankment, and directly in the course of flood waters passing them. More than this, the channel of the river divided immediately below the embankments and one branch ran to and across the plaintiff's lands. I do not understand that it is contended that the plaintiff's lands would not have been flooded if it had not been for the cut. What is contended is that by the cut, the channel was changed so that the flood came with greater force and carrying more silt and sand with consequent erosion of the plaintiff's land and a deeper deposit upon it.

Now, it is evident that the cut operated in the first instance only to permit the water to pass through the embankment. It is likewise evident that if the water would have broken the embankment, if the cut had not been there, and would have broken it at or about the same place, the final result would have been the same and the cut was not a factor in causing that result. It was due to the flooding river alone. But the fact that the water would have broken the embankment if the cut had not been there is demonstrated by the fact that it did break through even with the cut there. The situation when the flood of January, 1914, came was, as I have said, that the levees on both sides of the river were intact except for the cut. The amount of water coming down was enormously greater than could be carried in the space between the two embankments. The result was that both gave way. That on the northwesterly side went out for a single stretch of some six hundred feet or more. That on the southeasterly side broke just a few yards below the cut. It cannot be questioned that this break would have taken place if the cut had not been there for the effect of the cut was to relieve, not to increase, the pressure upon the levee below it. Furthermore, the width of the break was greater than that of the cut even after the latter had been enlarged by the passage of the two floods of January and February, 1914. The plaintiff's own maps and the testimony of its witnesses show that after these floods the cut had been enlarged to a width of fifty or sixty feet only, while the break had a width of over one hundred feet. The levees were of light soil, easily eroded, and there would seem to be no escape from the conclusion, not only that the levee would have been broken if the cut had not been there, but that if it had not been there and the levee had held at that point, the break below would have been correspondingly enlarged because of the increase of pressure, so that the amount of water that passed through the levee would have been substantially the same. In addition to these circumstances, there is the further fact that the contour of the land on the inner side of the break is such that water passing through the break would follow the same course across the Bixby land to that of the plaintiff as water passing through the cut. We have, then, these three conclusions, from none of which, in my judgment, is there escape: First, that the levee would have broken, as it actually did, even if the cut had not been there; second, that substantially the same amount of water would have passed through this break; and, third, that the water so passing through would follow the same course as water passing through the cut. If these things be true, it means that the cut was not a factor in the final result.

So far, I have been discussing the case with reference to the flood of January, 1914, the flood which came when the levees were intact except for the cut. But if the defendants are not responsible for injury done by this flood, they are certainly not responsible for any done by subsequent floods. They were under no obligation to repair the levee, and when those floods came, the levee was already broken. The conditions which those floods met were conditions caused by the previous flood and for which the defendants were not responsible. Not being responsible for those conditions, nor under obligation to remedy them, they were not responsible for injury which the subsequent floods may have worked because of them.

Shaw, J., and Lawlor, J., concurred.

Rehearing denied.

All the Justices concurred.