J. M. GRISBY, Respondent, v. THE CLEAR LAKE WATER WORKS COMPANY, Appellant, 40 Cal. 396

Temple, J., delivered the opinion of the Court, WALLACE, J., and Crockett, J., concurring: This action is brought in the County Court to abate a nuisance and recover damages. The complaint charges the defendant with having erected two dams across Cache Creek, which is the outlet of Clear Lake; that the two dams have caused the overflow of at least five hundred and fifty acres of plaintiff’s land, and thus rendered it valueless; and that the waters, becoming stagnant, have rendered the dwelling-house of the plaintiff uninhabitable. The answer contains a general denial and a plea of the Statute of Limitations.

The plaintiff had judgment, and the defendant’s motion for a new trial having been denied, this appeal is taken. Upon the trial evidence was introduced by the defendant tending to prove that one of the dams described in the complaint, had been removed before the action was commenced. The defendant thereupon asked the Court to instruct the jury that if they found that either of the dams was removed before the action was commenced, the plaintiff could recover no damages occasioned by such dam. The Court refused to give this instruction, and the ruling is assigned as 'error. We think this point well taken.

The County Court has no jurisdiction of the action for damages, except as an incident to its power to abate the nuisance; and in case it should appear that the nuisance had been abated prior to the commencement of the action, it would follow as a matter of course that this Court has no jurisdiction for any purpose. We think, also, that there was error in admitting evi-clence of tbe declarations of Simmons for tbe purpose of showing tbat tbe dams were built by tbe defendant.

Tbe very purpose of tbe evidence seems to bave been to proye tbat be was building tbe dams for tbe defendant, and bis declarations could not be evidence against tbe defendant until bis agency was first proven. It was necessary to show tbe very fact sought to be established by tbe proof before this evidence would be admissible. We fail to find any evidence aside from these declarations of Simmons himself of bis agency. Yie cannot presume tbat such evidence was given, though not in tbe statement.

Tbe objection to tbe testimony is clearly made, and if tbe proper foundation for its admission was laid, it was tbe duty of tbe respondent to see tbat tbe statement should show tbat fact. This is tbe chief purpose of the requirement tbat tbe statement shall contain tbe specification of error. Tbe testimony of Brown as an expert ought to bave been admitted. No objection was made to bis competency, and nothing is better established than tbe proposition tbat this bind of evidence is admissible as to tbe effect of obstructions in causing back water.

Ordinarily, it is true, witnesses testify only as to facts, leaving it to tbe jury to draw their conclusions, but upon matters of science and questions requiring peculiar skill an exception is made. These witnesses ought, perhaps, to be selected by tbe Court, and should be impartial as well as learned and skillful.

A contrary practice, however, is now probably too well established to allow tbe more salutary rule to be enforced, but it must be painfully evident to every practitioner tbat these witnesses are generally but adroit advocates of tbe theory upon which tbe party calling them relies, rather than impartial experts, upon whose superior judgment and learning tbe jury can safely rely. Even men of tbe highest character and integrity are apt to be prejudiced in favor of tbe party by whom they are employed.

And, as a matter of course, no expert is called until tbe party calling him is assured tbat bis opinion will be favorable. Such evidence should be received with great caution by tbe jury, and never allowed, except upon subjects which require unusual scientific attainments or peculiar skill. On the trial the plaintiff was allowed to prove by a medical witness, against tbe objection of defendant, that water standing upon the grounds until the hot weather comes produces a fetid atmosphere and miasma, which renders it unhealthy to the community residing about the lake.

We do not understand the object of the evidence to have been to prove damages to the plaintiff by showing an injury to the community, but to show the character of the nuisance occasioned by causing the water to flow back over the land of plaintiff. Testimony was introduced tending to prove that the waters were backed up within a few feet of the plaintiff’s house, and it was claimed that the house was thereby rendered uninhabitable.

Of course the plaintiff cannot recover damages for a public nuisance, so far as the injury is to the public only, but if he has suffered damage peculiar to himself, as by flooding his land, and thereby depriving him of the use of it, the nuisance is to that extent a private nuisance as to him, for which he may recover damages, and we have no doubt that the facts alleged in the complaint, if proven, are sufficient to enable the plaintiff to maintain this action in that respect. (Blanc v.

Klumpke, 29 Cal. 157.) We do not think the evidence even tends to establish a prescriptive right in the defendant to overflow the lands of the plaintiff. To acquire this right, there must have been an uninterrupted enjoyment, under claim of right, for the period of five years. There must have been an actual occupation by the flow of water, to the knowledge of the plaintiff, and such as to occasion damage and give him a right of action.

There must have been such a use of the premises, and such damage, as will raise a presumption that plaintiff would not have submitted to it, unless the defendants had acquired a right so to use it. Such a state of facts is not likely to be found where the actual issue tried is, whether the defendant has caused the lands to be overflowed or not. (Gleason v. Tuttle, 46 Maine, 289; Felton v. Simpson, 11 Ind. 84; Parker v.

Hotchkiss, 25 Conn. 321.) The rule seems to be well established that a party who is not the original creator of a nuisance is entitled to notice that it is a nuisance, and a request must be made, that it may be abated before an action will lie for that purpose, unless it appear that he had knowledge of the hurtful character of the erection. This rule is not inconsistent with the authorities cited by plaintiff’s counsel, that every continuance of a nuisance is a new nuisance, but it is adopted for the reason that it would be a great hardship to hold a party responsible for consequences of which he may be ignorant.

If, therefore, the defendant became the purchaser of the premises after the dam had been erected, or if he replaced the old dam by a new structure — there being no greater interval between the removal of the old and the erection of the new than was necessary to do the work —and the new structure does not cause the land of the plaintiff to be overflowed to a greater extent than the old one did, then the defendant was entitled to notice before he could be made liable to an action for damages.

If, however, the new structure caused the lands of plaintiff to be flowed to a greater extent than the old one, the rule is otherwise. As to the “flash-boards,” we see no reason why they may not be considered a portion of the dam, if they were actually used, and if the overflow of plaintiff’s land was occasioned by their use the defendant would be liable, although they were not in use all the time.

The question as to whether they were used or not was properly left with the jury, although the evidence only seems to be material as bearing upon the question as to whether the defendant was entitled to notice before the action could be maintained. The damages would depend upon the amount of land flowed whether the backwater was caused by the “flash-boards ” or by the more permanent part of the dam.

We understand that the counsel for plaintiff finally conceded the right of defendant to show that during the time for which damages are claimed for the overflow of plaintiff’s laud, the small lakes near Clear Lake contained an unusual amount of water. To prevent the possibility of a misunderstanding, however, upon the new trial, we remark that such evidence as also that the streams and springs in the neighborhood was unusually flush, was admissible, for, although by no means conclusive, it directly tended to show that the high water in Clear Lake and Cache creek was not caused by the defendant’s dam.

As a new trial must be had, we do not deem it essential to discuss the questions raised as to the verdict and judgment. Order and judgment reversed, and a new trial ordered.