Reports of Cases Determined in the Supreme Court of the State of California (Volume 83)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1906. Excerpt: ... EASEMENTS (Continued). 2. Creation Of Easements--Contract--Common Law.--Ordinarily an easement is created by contract or grant, express or implied; but with respect to the flow of surface water, the question of easement or no easement depends upon the law defining the mutual rights and obligations of the owners of adjoining lands, which are regulated in this state by the common law.--Id. 3. Water Rights--Flow or Surface Water--Stare Decisis--Flood Water Distinguished From Surface Water.--The case of Ogburn v. Connor, 46 Cal. 346, is affirmed on the principle of stare decisis, to the cC'eet tliat the owner of an upper tract has an easement to have the surface water which has been accustomed by a natural flow to pass off from his land, over the land below, flow over such land, without obstruction; but the rule thus affirmed is confined to surface water having its sources in springs or descent from the clouds in the form of rain or snow, which the owner of the higher land cannot keep out by any practicable means, and does not apply to flood waters, which the owner of the higher land may restrain by the same means employed by his neighbor.--Id. 4. Injunction Against Levee--Overflow Of Sacramento River.--A proprietor of higher land bordering on the Sacramento River cannot enjoin the erection of a levee or embankment by the proprietor of lower land adjoining his in the rear, the design of which is to prevent the overflow of the river from flooding the lower land, though such embankment may increase the accumulation of flood water on the higher land; the owner of the higher land having like means of protecting his own land.--Id. 6. Ditch--Prescription--Adverse User--Continuity.--The continuity of adverse user required to give a presumptive right to an easement d...