Gray v. McWilliams

Citations

• 98 Cal. 157
• 21 L.R.A. 593
• 32 P. 976
• 1893 Cal. LEXIS 878

Syllabus

<p>Easement—Flow of Surface Water.—A,¡natural easement exists in favor of the owner of a higher tract, the surface water from which has been accustomed by a natural flow to pasa off over a lower adjacent tract, to have such water flow over the lands below, and the lower tract is charged with a corresponding servitude.</p> <p>Id.—Overflow of Water from Streams. — The owners of land along the rivers of the state are not subject to an easement or servitude for the overflow of water therefrom, and if the owner of a higher tract fails to erect embankments or levees to protect his land from the effect of floods, the owner of lower adjacent land may protect his land therefrom by erecting a levee on his own land, though its effect may be to increase the flood waters on the higher land of his neighbor.</p> <p>Id.— Seepage from Levee — Surface Water—Obstruction of Flow — Nuisance. —Water which seeps through a large and high levee protecting all the lands adjoining a river from overflow, and which gradually seeks a lower level, not in a defined channel, but as surface water is wont to do, by percolation and by the force of gravity, should be permitted to pass off by natural flow, like other surface water coming without volition from the clouds or rising to the surface from springs, and the owner of higher land has an easement for such natural flow over the adjoining lower land; and where the owner of lower land erects an embankment upon his land which keeps hack both the ordinary surface water which would flow naturally over it, and the seepage from the levee, which would otherwise pass off without detriment to any one, and thereby causes the water to flood the higher land above, the owner of such higher land is entitled to maintain an action to remove and abate such embankment as a nuisance.</p>