Full opinion text
TRAYNOR, J. — Plaintiffs own land in Venice, a suburb of the city of Los Angeles. The land is located near La Ballona Lagoon, a body of water about two miles long and two miles wide, which empties into the Pacific Ocean and is fed by La Ballona Creek, a natural watercourse draining an area of about 134 square miles. A map of the area as it existed in 1893 shows that the waters descending from the hills followed no defined course until they reached lower La Ballona Creek. In the ensuing years, however, the area drained by the creek and its tributaries was transformed into residential and business districts and the waters were gradually confined to ditches and channels emptying into the creek. The city of Los Angeles, the Los Angeles County Flood Control District, and the county of Los Angeles, acting independently, straightened, widened, and deepened the creek and its tributaries and constructed concrete storm drains to improve the drainage. The urbanization of the area resulted in less absorption of water into the earth, while the improved drainage accelerated the flow of water into the lagoon. The outlet from the lagoon into the ocean, however, was in no way improved to accommodate the increased flow of water but remained in its natural state. Meanwhile several bridges were constructed across the lagoon. Throughout December 31, 1933, and January 1, 1934, a heavy rainstorm occurred. The waters swept down La ¿aliona Creek and into the lagoon where, because of the inadequate outlet, they overflowed on to plaintiffs’ properties, flooding them to a depth of from six to eight feet for about four days. The plaintiffs thereupon brought these actions for damages against the city, the county, and the flood control district. They claim the right to recover from defendants under article I, section 14 of the California Constitution which requires the payment of just compensation for private property taken or damaged for public use. The complaints allege that defendants acted negligently in constructing a drainage system with an inadequate outlet, improperly permitted obstructions in the lagoon, diverted water from streets within the drainage area on to plaintiffs’ properties, and damaged plaintiffs’ property for a public use without making compensation. A demurrer of the defendant flood control district to one of the complaints was sustained without leave to amend, but on appeal the District Court of Appeal reversed the judgment, holding that the complaint stated a good cause of action. (Archer v. City of Los Angeles, 15 Cal. App. (2d) 520 [59 Pac. (2d) 605].) The actions were then consolidated for trial. At the conclusion of plaintiffs’ evidence, the trial court entered judgments of nonsuit in favor of defendants, and plaintiffs have appealed. It is settled that “A nonsuit should be granted only when, accepting the full force of the evidence adduced, together with every reasonable inference favorable to the plaintiff, which may be drawn therefrom, and excluding all evidence in conflict therewith, it still appears that the law precludes the plaintiff from recovering a judgment. . . . ” (Mastrangelo v. West Side U. H. School Dist., 2 Cal. (2d) 540, 544 [42 Pac. (2d) 634]; Angelus Sec. Corp. v. Ball, 20 Cal. App. (2d) 423, 435 [67 Pac. (2d) 152].) Plaintiffs have established by their evidence that defendants straightened and widened the channel of La Baliona Creek and constructed concrete storm drains that followed the natural drainage of the country; that these improvements accelerated the flow of the water; that the outlet into the ocean remained unimproved and could not accommodate the increased flow; that the defendants had knowledge of the inadequacy of the outlet ; that in the opinion of two experts such a drainage system was “not good engineering”; and that the flow of water was obstructed by several bridges across the lagoon including one constructed by the city. The question presented is whether a governmental agency is liable under article I, section 14, for damaging property for a public use when improvements constructed by it along the natural course of a stream and its tributaries accelerate the flow of the water, and lower lands are flooded because of the inadequacy, known to the agency, of the outlet to accommodate the increased flow. The state or its subdivisions may take or damage private property without compensation if such action is essential to safeguard public health, safety, or morals. (Gray v. Reclamation Dist., 174 Cal. 622 [163 Pac. 1024] at 640; Bowditch v. Boston, 101 U. S. 16 [25 L. Ed. 980]; Chicago B. & Q. R. R. Co. v. Illinois, 200 U. S. 561 [26 Sup. Ct. 341, 50 L. Ed. 596]; Omnia Commercial Co. v. United States, 261 U. S. 502 [43 Sup. Ct. 437, 67 L. Ed. 773]; see cases cited 5 Cal. Jur. 696 et seq.) In certain circumstances, however, the taking or damaging of private property for such a purpose is not prompted by so great a necessity as to be justified without proper compensation to the owner. (Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 [43 Sup. Ct. 158, 67 L. Ed. 322]; Chicago B. & Q. R. R. Co. v. Chicago, 166 U. S. 226 [17 Sup. Ct. 581, 41 L. Ed. 979]; see eases cited in 10 Cal. Jur. 283, 284, 295.) The liability of the state under article I, section 14 of the California Constitution arises when the taking or damaging of private property is not so essential to the general welfare as to be sanctioned under the “police power” (Pennsylvania Coal Co. v. Mahon, supra; Chicago B. & Q. R. R. Co. v. Chicago, supra; 10 Cal. Jur., supra; see Mugler v. Kansas, 123 U. S. 623 [8 Sup. Ct. 273, 31 L. Ed. 205]), and the injury is one that would give rise to a cause of action on the part of the owner independently of the constitutional provision. (Lamb v. Reclamation Dist., 73 Cal. 125, 129-131 [14 Pac. 625, 2 Am. St. Rep. 775]; San Gabriel Valley Country Club v. County of Los Angeles, 182 Cal. 392 [188 Pac. 554, 9 A. L. R. 1200]; Jefferson County Drainage Dist. v. McFaddin, (Tex. Civ. App.) 291 S. W. 322.) The provision permits an action against the state, which cannot be sued without its consent. It is designed, not to create new causes of action, but to give a remedy for a cause of action that would otherwise exist. The state is therefore not liable under this provision for an injury that is damnum absque injuria. If the property owner would have no cause of action were a private person to inflict the damage, he can have no claim for compensation from the state. (Lamb v. Reclamation Dist., supra, 129-131; San Gabriel Valley Country Club v. County of Los Angeles, supra; Jefferson County Drainage Dist. v. McFaddin, supra.) In the present case, therefore, plaintiffs have no right to compensation under article I, section 14, if the injury is one that a private party would have the right to inflict without incurring liability. It is established in California and other jurisdictions that a lower owner has no right of redress for injury to his land caused by improvements made in the stream for the purpose of draining or protecting the land above, even though the channel is inadequate to accommodate the increased flow of water resulting from the improvements. (San Gabriel Valley Country Club v. County of Los Angeles, supra; Board of Drainage Com’rs. v. Board of Drainage Com’rs., 130 Miss. 764 [95 So. 75, 28 A. L. R. 1250]; Mizell v. McGowan, 129 N. C. 93 [39 S. E. 729, 85 Am. St. Rep. 705]; O’Donnell v. City of Syracuse, 184 N. Y. 1 [76 N. E. 738, 112 Am. St. Rep. 558, 3 L. R. A. (N. S.) 1053]; City of Hamilton v. Ashbrook, 62 Ohio 511 [57 N. E. 239]; Lessenger v. City of Harlan, 184 Iowa 172 [168 N. W. 803, 5 A. L. R. 1523]; Strauss v. Allentown, 215 Pa. 96 [63 Atl. 1073, 7 Ann. Cas. 686]; Peck v. Herrington, 109 Ill. 611, 50 Am. Rep. 627]; Jefferson County Drainage Dist. v. McFaddin, supra; City of Ludlow v. Broderick, 181 Ky. 123 [203 S. W. 1082]; Manteufel v. Wetzel, 133 Wis. 619 [114 N. W. 91, 19 L. R. A. (N. S.) 167]; Trigg v. Timmerman, 90 Wash. 678 [156 Pac. 846, L. R A. 1916F, 424]; Robb v. Village of La Grange, 158 Ill. 21 [42 N. E. 77].) In the San Gabriel Valley Country Club case Los Angeles County constructed concrete storm drains that followed the natural drainage of the country, accelerated the flow of water, and prevented its absorption by adjoining lands. As a result plaintiff’s land, situated below the point where the drains emptied into the stream, was damaged during a heavy rain storm. In holding that plaintiff had no right of recovery against the county this court stated (at page 406) : “ ... an improvement for the purposes of the drainage and protection of lands above does not give a lower riparian owner on the stream a cause of action merely because such improvement increases the volume of water in the stream as it comes to his land, even though the burden he is necessarily under of protecting his land against the stream is thereby increased and his land is injured because of his failure to meet such increased burden; . . . the rule is not subject to the limitation that the increased volume must not be such as to make the stream exceed the capacity of its channel.” Accordingly, the construction of the improvements by the defendants in the instant ease did not place upon them the duty of improving the outlet. They cannot be held negligent for doing what they liad a right to do even though a different plan might have avoided the damage. (Board of Drainage Com’rs. v. Board of Drainage Com’rs., supra, at 81; Dudley v. Village of Buffalo, 73 Minn. 347 [76 N. W. 44, 45]; Hamilton v. Ashbrook, supra, at 241; Lessenger v. City of Harlan, supra, at 805.) The improvements must follow the natural drainage of the country. If the water is diverted out of its natural channel and discharged into a different channel or upon neighboring land, the diverter is liable to the owner whose land is injured by such discharge. (Shaw v. Sebastopol, 159 Cal. 623 [115 Pac. 213]; Stanford v. San Francisco, 111 Cal. 198 [43 Pac. 605]; Farrell v. City of Ontario, 39 Cal. App. 351 [178 Pac. 740], 36 Cal. App. 754 [173 Pac. 392]; Dick v. City of Los Angeles, 34 Cal. App. 724 [168 Pac. 703]; Mulder v. City of Los Angeles, 110 Cal. App. 663 [294 Pac. 485]; Newman v. City of Alhambra, 179 Cal. 42 [175 Pac. 414]; see 11 Cal. L. Rev. 444.) In the present case, however, there is no evidence of diversion. Straightening, widening, or deepening the channel of a stream to improve the drainage entails no diversion of the waters therein. (San Gabriel Valley Country Club v. County of Los Angeles, supra; Lambert v. Alcorn, 144 Ill. 313 [33 N. E. 53, 21 L. R. A. 611]; Gentry v. Weaver, 130 Kan. 691 [288 Pac. 745]; St. Paul & D. B. Co. v. Duluth, 56 Minn. 494 [58 N. W. 159, 45 Am. St. Rep. 491, 23 L. R. A. 88]; Fenton v. Adams, 221 Ill. 201 [77 N. E. 531, 112 Am. St. Rep. 171]; see 67 C. J. 902.) Likewise there is no diversion if surface waters, flowing in no defined channel, are for a reasonable purpose gathered together and discharged into the stream that is their natural means of drainage even though the stream channel is inadequate to accommodate the increased flow. (San Gabriel Valley Country Club v. County of Los Angeles supra, 401, 402; Sheehan v. Flynn, 59 Minn. 436 [61 N. W. 462, 26 L. R. A. 632]; Board of Drainage Com’rs. v. Board of Drainage Com’rs., supra; Mizell v. McGowan, supra; Dudley v. Village of Buffalo, supra; Waffle v. New York Central R. R. Co., 53 N. Y. 11 [13 Am. Rep. 467]; St. Paul & D. R. Co. v. Duluth, supra; City of Hamilton v. Ashbrook, supra; Lessenger v. City of Harlan, supra; Peck v. Herrington, supra; Jefferson County Drainage Dist. v. McFaddin, supra; Manteufel v. Wetzel, supra; see Robb v. Village of La Grange, supra; O’Donnell v. City of Syracuse, supra; City of Maysville v. Brooks, 145 Ky. 526 [140 S. W. 665]; see cases cited in 85 Am. St. Rep. 733, 734.) A California landowner may not collect such waters and discharge them upon adjacent land (LeBrun v. Richards, 210 Cal. 308 [291 Pac. 825, 72 A. L. R. 336]), but he may discharge them for a reasonable purpose into the stream into which they naturally drain without incurring liability for damage to lower land caused by the increased flow of the stream. As stated in San Gabriel Valley Country Club v. County of Los Angeles, supra, at pages 401, 402: “Not to permit an upper land owner to protect his land against the stream would be in many instances to destroy the possibility of making the land available for improvement or settlement and condemn it to sterility and vacancy. Such a rule would seriously interfere with the development of the country. Because of this, and because of the necessity of permitting the utilization for drainage of the means afforded by nature for the purpose, a very great preponderance of the decisions in other states go further than it is necessary to go in this ease, and hold that a riparian owner has no right to complain because the volume of water in the stream is increased by artificially draining surface waters into it above, provided only the stream is the natural drainage channel for the lands so drained. Furthermore, this rule is adopted regardless of whether the so-called common-law rule concerning surface waters prevails in the particular jurisdiction or, as here, the civil-law rule, which forbids the gathering together of surface waters and discharging them as a stream upon adjoining lands. If the surface waters are gathered and discharged into the stream which is their natural means of drainage, so that they come to the land below only as a part of the stream, it is held that no action lies because of their being added. (Citing cases.) Mr. Freeman in his note in 85 Am. St. Rep. 727, reviews very thoroughly the authorities dealing with the right to accelerate or diminish the flow of water, and upon the particular point under discussion says (page 733) : ‘We have just noticed the difference between merely draining on to another’s land, and draining into a natural channel or watercourse, which flows across such land. So far as streams or natural watercourses are concerned, there can be no doubt that one can drain into them, and thereby increase their volume without subjecting himself to liability for any damage suffered by a lower owner. ’ ’ ’ The evidence here presented shows clearly that the storm drains constructed by defendants either followed the channel of natural streams (see Larrabee v. Cloverdale, 131 Cal. 96, 100 [63 Pac. 143]), or discharged into the creek surface waters that would naturally drain into it. Any damage caused by an obstruction to the natural flow of waters is also actionable (Richardson v. City of Eureka, 96 Cal. 443 [31 Pac. 458]; Dick v. City of Los Angeles, supra; Los Angeles Cemetery Ass’n v. Los Angeles, 103 Cal. 461 [37 Pac. 375]; Conniff v. San Francisco 67 Cal. 45 [7 Pac. 41]; Larrabee v. Cloverdale, supra; Geurkink v. City of Petaluma, 112 Cal. 306 [44 Pac. 570]), and plaintiffs contend that several bridges and other structures obstructed the flow of waters through the lagoon. Their evidence shows that only one bridge was constructed by defendants. The basis of liability must therefore depend upon this bridge. Plaintiffs’ evidence establishes that this bridge caught debris swept down into the lagoon and obstructed to some extent the flow of the waters. The testimony of plaintiffs’ own experts makes it clear, however, that the flooding of plaintiffs’ land was caused by the inadequacy of the outlet and would have occurred regardless of the obstruction created by the bridge. Plaintiffs have made no showing that the obstruction of the bridge contributed to the damage caused by the overflow. No liability can be imposed upon defendants merely because the bulkheads supporting the banks on either side of the bridge might have prevented the water from forcibly widening the channel by washing away the banks; for it is firmly established that a riparian owner may erect bulkheads or other structures along the banks of a stream to protect his land from being washed away. (Barnes v. Marshall, 68 Cal. 569 [10 Pac. 115]; Weinberg Co. v. Bixby, 185 Cal. 87 [196 Pac. 25]; Horton v. Goodenough, 184 Cal. 451 [194 Pac. 34]; De Baker v. Southern Cal. Ry. Co., 106 Cal. 257, 279, 280 [39 Pac. 610, 46 Am. St. Rep. 237]; Lamb v. Reclamation Dist., 73 Cal. 125 [14 Pac. 625, 2 Am. St. Rep. 775]; Sanguinetti v. Pock, 136 Cal. 466 [69 Pac. 98, 89 Am. St. Rep. 169]; see cases cited in 25 Cal. Jur. 1051, 1052, see. 47; 26 Cal. Jur. 290-292, secs. 503-508.) The evidence presented by the plaintiffs in the instant case is therefore insufficient to establish a right to recover against the defendants. Plaintiffs contend that the decision of the District Court of Appeal, holding that their complaint stated a good cause of action against a general demurrer, is the law of the case and requires this court to reverse the nonsuit of the trial court. The District Court of Appeal stated that “The gist of the . . . complaint ... is that respondent constructed and built an artificial drainage system so defectively, carelessly and negligently that it would not carry the storm waters to the Pacific Ocean as designed and intended” and “that the injury to the appellants occurred by reason of the fact that respondent negligently turned the storm waters into La Baliona lagoon, which was too small to conduct the water turned into it by and through the drainage system constructed, operated and maintained by respondent. ...” According to the allegations of the complaint, the damage resulted because defendants negligently diverted water out of its natural channel, and obstructed the channel of the creek. Plaintiffs’ evidence, however, fails to substantiate such allegations. The decision of the District Court of Appeal on demurrer is therefore not binding on this court in passing on the sufficiency of the evidence to support the allegations. The judgment is affirmed. Gibson, C. J., Shenk, J., and Edmonds, J., concurred.
CARTER, J. — I dissent. The statement of facts in these cases contained in the majority opinion is both incomplete and inaccurate and the legal theory upon which the decision is based is manifestly unsound and unsupported by respectable authority. The principles of law, if they may be called such, announced in the majority opinion, are clearly contrary to the settled law of California and the weight of authority elsewhere. Since a correct statement of the facts is essential to the proper determination of every law suit, I will first set forth the facts as they appear in the record before us in these cases. Consolidated actions were brought to recover damages resulting from the overflow of storm waters upon the real property of the plaintiffs and their assignors located in Venice, a suburb of the city of Los Angeles. At the close of plaintiffs’ evidence, judgments of nonsuit were entered from which the plaintiffs have appealed. The litigation concerns the drainage area of La Ballona Creek, approximately twelve miles square, located in the westerly part of Los Angeles County, and is bounded on the north by the Santa Monica Mountains and the Hollywood Hills, on the south by the Baldwin Hills, on the east by Vermont Avenue and on the west by Sepulveda Canyon and the Pacific Ocean. Within the above-mentioned area are situated the towns of Culver City, Beverly Hills and Palms, and a portion of the defendant city of Los Angeles. The entire area is a part of the defendant Los Angeles County Flood Control District. It was agreed in the court below that the issue of liability or nonliability should be tried first. The evidence regarding the development and urbanization of the area, including changes in the methods of drainage, is voluminous and technical. Briefly, when the watershed was in its natural state much of the rain that fell into it never reached the outlet at La Ballona Lagoon, a large submerged area close to the Pacific Ocean which constituted its outlet. The drainage of the watershed extended over a wide area in “thin sheets,” and much of the water was absorbed in the ground, lost by evaporation, or held by large lakes or swamps and slow-moving streams. The development of the area brought a gradual confinement of the drainage, and sections which had once been absorptive, came to have a run-off themselves. The defendant city constructed thirteen concrete storm drains, the defendant county three. These drains collected the surface waters. The defendant flood control district built its structures in the middle reaches of La Ballona Creek to deepen, widen and straighten the channel, and constructed levees along the banks to confine the water to the channel of the creek. These improvements followed the former natural watercourse and entailed no diversion of water from without the watershed. They caused the water to run off faster from the drainage area and increased the volume flowing into La Ballona Lagoon, the main outlet into the ocean. The surface water collected by the storm drains emptied into a large basin where the improvements ended some three miles east of the lagoon. The water in the basin entered the lagoon at two places and flowed through it to the only outlet into the ocean. It is the contention of the plaintiffs that “by said operation and the inadequate outlet into the ocean a ‘cul de sac’ was formed, ’ ’ which had the effect of impounding the storm waters and causing them to overflow the banks of said lagoon. On December 31, 1933, and January 1, 1934, a heavy rain occurred and the storm waters went down La Baliona Creek and into the lagoon where they overflowed and flooded to a depth of six to eight feet for about four days the properties of the plaintiffs and their assignors located some three miles north of the lagoon or main outlet into the ocean, which properties were not riparian to the lagoon or La Bollona Creek. These actions for damages followed, and each complaint alleges five causes of action. The first cause alleges that the defendants were negligent in constructing and maintaining an “artificial” drainage system of insufficient size in that the lagoon outlet was inadequate to carry and discharge into the ocean the concentrated and accelerated flow of water which resulted from the high-speed impervious concrete storm drains installed by defendants. The second cause alleges that while the improvement of the drainage area was for a public use and purpose no compensation was made to the plaintiffs and their assignors for the damage thereby caused to their property. The third cause alleges that the defendants disregarded plaintiffs’ rights by constructing a drainage system which caused more storm or surface water to be carried into La Ballona Lagoon than it could carry, and by failing to remove such obstructions in the lagoon as bridges and an oil derrick. The fourth cause alleges that the defendants have by means of the concrete storm drains and conduits “diverted” water from the streets within the drainage area to the plaintiffs’ property in increasing quantities and with destructive force. The fifth cause alleges that the defendants have caused and permitted obstructions in and across the lagoon outlet without taking the necessary precautions against the overflow of storm waters flowing therein. Prior to the consolidation of these two actions for trial, a demurrer of the defendant flood control district to the first, fourth and fifth causes of action was sustained without leave to amend, in the Archer ease. Upon appeal it was stated, in part, by the District Court of Appeal that “The gist of [the] . . . complaint ... is that respondent constructed and built an artificial drainage system so defectively, carelessly and negligently that it would not carry the storm waters to the Pacific Ocean as designed and intended” and “that the injury to the appellants occurred by reason of the fact that respondent negligently turned the storm waters into La Ballona lagoon, which was too small to conduct the water turned into it by and through the drainage system constructed, operated and maintained by respondent. . . . ” The District Court of Appeal thereupon reversed the judgment entered upon the sustaining of the demurrer without leave to amend, concluding that the complaint adequately alleged causes of action in the respects mentioned. (Archer v. City of Los Angeles, 15 Cal. App. (2d) 520 [59 Pac. (2d) 605].) This is of significance upon this appeal since the motion for nonsuit made (and here granted) at the close of the plaintiffs’ case operates as a demurrer to the evidence. (See cases cited in 9 Cal. Jur. 551, sec. 35.) If, as held by the District Court of Appeal, the complaint in the Archer case (identical with that in the Allison case) states causes of action for damages based on the negligent or defective construction of public works, and the evidence thereafter adduced by the plaintiffs tends to establish the allegations of the complaints, the trial court must be held to have erred in non suiting the plaintiffs. It is settled that “A nonsuit should be granted only when, accepting the full force of the evidence adduced, together with every reasonable inference favorable to the plaintiff, which may be drawn therefrom, and excluding all evidence in conflict therewith, it still appears that the law precludes the plaintiff from recovering a judgment under such circumstances.” (Mastrangelo v. West Side U. H. School Dist., 2 Cal. (2d) 540, 544 [42 Pac. (2d) 634]; Angelus Sec. Corp. v. Ball, 20 Cal. App. (2d) 423, 436 [67 Pac. (2d) 152, 158].) The witness Prisbie, a civil engineer, who had been familiar with the La Ballona drainage area for approximately eighteen years, described its natural state and subsequent development. He pointed out that engineers employ two principal methods to control flood waters: to retard and hold them back in storage reservoirs, or to confine the waters that naturally flow over porous soils to line channels at high speed so that more water will flow to the outlet at given times. lie added that the problem in the latter method, which he stated was employed by the defendants to drain the La Baliona watershed, is the outlet. He testified that the effect of the concrete storm drains and the straightening and widening of the La Baliona channel to concentrate the run-off, was not only to accelerate the flow but to cause more water to flow down because it was no longer in part lost in absorption or evaporation. “To discharge that water through these high-speed drains, concentrate, and discharge it right out into open space, with no control over it, and then a thoroughly bottled up outlet, in my opinion, would be very bad engineering. . . . The capacities of the outlets into the lagoon between the sand bar and the sand dunes, in the condition in which they were during that period, were insufficient to carry off the water, to carry the water away as fast as it was arriving. ’ ’ He gave a negative answer to the question whether it was “good engineering to construct an elaborate system of storm drains in the upper part of the La Baliona Creek watershed, and for the Los Angeles County Flood Control District to construct a fine, high-speed main channel down to and beyond Centinela Boulevard, and then turn the storm water loose at that point with such facilities as existed for its escape into La Baliona Lagoon, as existed on December 31, 1933.” As reasons therefor he added: “Because the construction of all these high-speed drains and the great areas of impervious surfaces greatly increased the quantity of storm waters that would arrive down in that area at a given time, and would require good, ample facilities for an outlet capacity far greater than it required under the natural conditions of that watershed, when a great deal of that water never got there, because it was absorbed in the debris cones and absorbed in the brush and all kinds of growth, and when it approached at very slow velocities through these ciénagas and over the natural surface — to turn that loose at that point with no open, flat country and no possible way to force that water through a limited outlet without piling the water up several feet deep, in my opinion, was not good engineering.” The witness Bell, a consulting civil engineer, who many years earlier had done some work for the defendant flood control district and the defendant county in connection with La Ballona Creek, described the area in its natural and subsequently altered state much as did the witness Frisbie. He, too, testified that it was not “good engineering to construct an elaborate system of storm drains in the upper part of La Ballona watershed, and for the Los Angeles County Flood Control District to construct a fine, high-speed main channel down to and beyond Centinela bridge . . . and then turn the storm waters loose at the point with such facilities as existed for its escape into La Ballona Lagoon, as existed on December 31, 1933 . . . because if there were no facilities for the escape of that water when it got down to the estuary of La Ballona, there was created what you might call practically a cul de sac. It could not get out. It was bound to collect like a reservoir and spread out all over the country; nothing to prevent it. ’ ’ A series of letters, placed in evidence by the plaintiffs as exhibits, definitely indicate that the appropriate officers of the three defendant entities had knowledge for several years •prior to the flood here involved of the imperative necessity for a change in the La Ballona outlet to the ocean. On January 6, 1931, the chief engineer of the defendant flood control district addressed a letter to the board of supervisors of the defendant county wherein he stated that in the previous month he had received a letter from the Venice Chamber of Commerce requesting the “construction of a dyke to protect Venice from flood waters.” In his letter the chief engineer pointed out to the board that “The natural rate of flow of La Ballona Creek has been greatly increased due to the discharge into it of six (16 in 1933) storm drains of which four are Los Angeles City, one Culver City and one County Drain. The Flood Control District has during the past summer enlarged and cleaned the entire channel where rights of way were obtained. Lacking an adequate outlet to the ocean the channel capacity has each year been barely sufficient to handle the relatively low flows that have occurred and in the event of a major or even a moderate flood two principal locations would be subject to damage. 1. The City of Venice. 2. Culver City and vicinity. ...” In an earlier letter (1930) to the board of supervisors in which the chief engineer discussed the drainage changes that had been made in the area and of the then existence of five storm drains (county and city) and of the proposal of the city to construct five additional drains, he added “to fully relieve the present situation an outlet to the ocean is essential. ’ ’ It is manifest that the foregoing facts are sufficient to make a prima facie case in accordance with plaintiffs’ allegations and to establish what the District Court of Appeal declared to be the gist of the Archer action, that is, that “The gist of [the] . . . complaint ... is that respondent constructed and built an artificial drainage system so defectively, carelessly and negligently that it would not carry the storm waters to the Pacific Ocean as designed and intended” and “that the injury occurred by reason of the fact that respondent negligently turned the storm waters into La Ballona Lagoon, which was too small to conduct the water turned into it by and through the drainage system constructed, operated and maintained by respondent. . . . ” (Archer v. City of Los Angeles, supra.) On the doctrine of the law of the case, as to the Archer ease, and stare decisis, as to the Allison case, it must be held that plaintiffs have established the liability of defendants. The attempted answer to that incontrovertible proposition advanced by the majority opinion is that: “According to the allegations of the complaint, the damage resulted because defendants negligently diverted water out of its natural channel, and obstructed the channel of the creek. Plaintiffs evidence, however, fails to substantiate such allegations.” That statement is palpably incorrect. The gist of the action as stated by the District Court of Appeal was not that water had been “diverted out of its natural channel,” rather it was that the defendants negligently “turned the storm waters into ¿a Ballona Lagoon,” that is, collected surface waters and discharged them into the lagoon. The evidence without contradiction shows that that occurred. The storm waters were collected into drains and turned into the lagoon and creek, the outlet of which was too small to carry them, with the result that plaintiffs’ lands were flooded when the lagoon overflowed. The prior decision is therefore the law of the case and controlling here. The true basis of liability in cases of this character is found in the constitutional provision prohibiting the taking or damaging of property for a public use without the payment of just compensation. (California Constitution, art. I, sec. 14.) The liability exists independent of negligence on the part of the public agency. (Tormey v. Anderson-Cottonwood Irr. Dist., 53 Cal. App. 559 [200 Pac. 814]; Elliott v. County of Los Angeles, 183 Cal. 472 [191 Pac. 899]; Kaufman v. Tomich, 208 Cal. 19 [280 Pac. 130].) In the instant case the evidence shows that the defendants launched and constructed an extensive public improvement, to-wit: The drainage of the area above-mentioned into the Pacific Ocean. It establishes that the improvement was inherently improper, was negligently planned and carried out, and was contrary to skillful engineering practices. The drainage of the water into the Pacific Ocean could not be accomplished without flooding plaintiffs ’ land with the condition of the outlet from La Ballona Lagoon being in the condition in which it existed. Further, the evidence shows that defendants knew of that condition. It cannot be said that the object and design of the drainage system did not include the discharge of the drainage water into the ocean. That discharge was necessarily an inseparable part of the entire drainage scheme. Defendants were obligated therefore either properly to improve the outlet or to compensate anyone whose property was damaged by reason of the insufficiency of the improvement. They knew that the improvement would result in the flooding of property; that flooding was a necessary and component part of the entire system, and as they failed to acquire by eminent domain the right to so flood the property, then they must now compensate the owners thereof for the injury thereby caused. In essence the situation is no different than if defendants had constructed an outlet from the lagoon to the ocean which was too small to carry the water and a flood resulted. They adopted the natural outlet known, to be insufficient in size as a part and parcel of the improvement, the drainage system. The case is not essentially different from Kaufman v. Tomich, supra. There the improvement consisted of a sewer line in a street. While the sewer ditch was open, plaintiff’s property, lying adjacent to the street, was damaged by the shifting of the soil upon which rested the foundation of her building. This court in affirming a judgment for plaintiff stated at page 21: “ . . . that if the act commanded by the municipality was inherently wrong, then both the municipality and the agent performing the work would be answerable in damages to anyone injured thereby, even in the absence of negligence in its performance. This declaration finds support in Perkins v. Blauth, 163 Cal. 782, 789 (127 Pac. 50, 53), wherein the rule is expressed in the following language: 'Upon the other hand, if the act is one commanded by the municipality itself, if inherently wrong, the municipality and the agent who performed will both be liable. ... If the injury results, however, not from the wrongful plan or character of the work, but from the negligent or improper manner in which it is performed, the one so negligently acting will always be responsible, and the public corporation may or may not be responsible, depending upon the relationship which it may sustain to that agent.’ Being satisfied that the trial court, on competent evidence, has found the plan and location of the sewer to be inherently wrong and dangerous, Judge Strother declared, as his opinion, that judgment was properly entered against both defendants.” The trial court had found in the Kaufman case that the “location and alignment of the said sewer were intrinsically dangerous and inherently wrong, and were of such a nature and of so close proximity to the front of plaintiff’s property and plaintiff’s wall as were likely in the natural course of construction of the said sewer — to damage and injure said . . . property. ...” (Emphasis added.) In the cases at bar the evidence is capable of the construction that the drainage system without a proper outlet was not only likely but certain to cause the flooding of plaintiffs’ land and the defendants knew that result would follow. Reference may be made to the language in Conniff v. San Francisco, 67 Cal. 45, 50 [7 Pac. 41], involving the flooding of plaintiff’s land by the construction of a street which dammed a stream: “The case before us is not one of mere consequential damage which the land owner must protect himself against, and for which the law affords him no redress. It is a direct trespass on the property of plaintiff by the construction of a dam which a moment’s reflection would have made clear to any one, must inevitably in the course of nature have resulted in the permanent overflowing the land of plaintiff when the rainy season came, and from which he could only free himself by cutting away a public highway, for which he might have been proceeded against both by a civil and criminal action.” (Emphasis added.) In the instant case, not only would a moment’s reflection have made it clear to anyone that plaintiffs’ land would be flooded, but defendants actually kneiv it. In Spangler v. San Francisco, 84 Cal. 12 [23 Pac. 1091, 18 Am. St. Rep. 158], the construction of a street along a stream interfered with the flow therein, and defendant provided sewers or storm drains to carry the waters thereof to Mission Bay; by reason of disrepair the sewer failed to carry the water and plaintiffs’ property was flooded. This court said at page 17: “It was the duty of the city, when it does provide waterways, to provide such as are sufficient to carry off the water that might reasonably be expected to accumulate. The rule is so laid down in Damour v. Lyons City, 44 Iowa, 282; approved and followed in Powers v. City of Council Bluffs, 50 Iowa, 201, 202. (See Mayor of New York v. Bailey, 2 Denio, 433.) We think the rule above stated correct, and approve it.” (Emphasis added.) And at page 19: “Dillon states that ‘there is a municipal liability where the property of private persons is flooded, either directly or by water being sent back, when this is the result of the negligent execution of the plan adopted for the construction of gutters, drains, culverts, or sewers, or of the negligent failure to keep the same in repair and free from obstruction, and this, whether the lots are below the grade of the streets or not. The eases support this proposition with great unanimity.’ ” In Stanford v. San Francisco, 111 Cal. 198 [43 Pac. 605], the construction of a street (analogous to the drains in the eases at bar) by a city caused the collection of surface water which flowed into plaintiff’s basement because of insufficient drainage facilities. It was held that the city was liable, this court stating at page 202: “Here the grade of Jessie street was not changed, nor is there any claim that the premises occupied by plaintiffs were below grade. Here a street, which before it was paved absorbed the water falling upon it, by the paving is made to retain and collect the same upon its surface, no means being provided for removing or conducting it away. The portion of the street so paved crossed no street or alley by which it could be diverted, and as the easterly end was more than two feet lower than its westerly end, and was absolutely closed at the lower end by a building which crossed it, it was inevitable that the water falling on that portion of the street below Fourth street tvould be collected and retained until it could escape by flowing_ over the curb and sidewalk and into the basement occupied by the plaintiffs. . . . "Counsel for appellant cites section 1039 of Dillon’s Municipal Corporations in support of the proposition that ‘the law regards surface water as a common enemy, which every proprietor may fight or get rid of as best he may. ’ “That section and the two following are devoted to the subject of ‘liability in respect of surface water,’ and the last of these (section 1041) is devoted to the question of the ‘omission to provide drains.’ The learned author says: ‘It is clear that there is no liability on the part of a municipal corporation for not exercising the discretionary or legislative powers it may possess to improve streets, and as part of such improvement, to construct gutters or provide other means for draining for surface waters, so as to prevent them from flowing upon the adjoining lots. ’ But in note 2 to said section it is said: ‘If the necessity for the drainage is caused by the city, the doctrine of the text (section 1041) that it is not bound to supply the drainage does not apply.’ Even as applied to property below the level of the street the same learned author says: ‘It is possible there may be no middle ground; but we are unable to assent to the doctrine that by reason of their control over streets, and the power to grade and improve them, the corporate authorities have the absolute and unconditional legal right intentionally to divert the water therefrom, as a mode of protecting the streets, and to discharge it by artificial means, in increased quantities and with collective force and destructiveness, upon the property, perhaps improved and occupied, of the adjoining owner. ’ (Dillon on Municipal Corporations, see. 1042.) In a note to this section, in the fourth edition, he says: ‘ The many cases since decided, cited in the notes, have found and defined the “middle ground,’’ therein referred to, and adjudged the law to be as stated in the text. ’ “In Ashley v. Fort Huron, 35 Mich. 296, 35 Am. Rep. 552, it was held that where a city constructed a sewer in such manner as to throw a large quantity of water upon plaintiff’s premises which otherwise would not have flowed there, it was liable for the damage caused thereby. In the opinion in that case, after referring to a great many authorities, Chief Justice Cooley said: ‘It is very manifest, from this reference to authorities, that they recognize in municipal corporations no exemption from responsibility where the injury an individual has received is a direct injury accomplished by a corporate act which is in the nature of a trespass upon him. The right of an individual to the occupation and enjoyment of his premises is exclusive, and the public authorities have no more liberty to trespass upon it than has a private individual. If a corporation send people with picks and spades to cut a street through it without first acquiring the right of way, it is liable for a tort; but it is no more liable under such circumstances than it is when it pours upon his land a flood of water by a public sewer so constructed that the flooding must he a necessary result. The one is no more unjustifiable than the other. Each is a trespass, and in each instance the city exceeds its lawful jurisdiction. A municipal charter never gives and never could give authority to appropriate the freehold of a citizen without compensation, whether it be done through an actual taking of its streets or buildings, or by flooding it sc as to interfere with the owner’s possession. His property right is as much appropriated in the one ease as in the other. ’ “In Seifert v. Brooklyn, 101 N. Y. 136, 142, 54 Am. Rep. 664, it was said: ‘Municipal corporations have quite invariably been held liable for damages occasioned by acts resulting in the creation of public or private nuisances, or for an unlawful entry upon the premises of another whereby injury to his property has been occasioned. (Baltimore etc. R. R. Co. v. Fifth Baptist Church, 108 U. S. 317 [2 Sup. Ct. 719, 27 L. Ed. 739].) This principle has been uniformly applied to the act of such corporation in constructing streets, sewers, drains and gutters, whereby the surface water of a large territory, which did not naturally flow in that direction, was gathered into a body, and thus precipitated upon the premises of an individual, occasioning damage thereto.’ (See also note to Chalkley v. Richmond, 29 Am. St. Rep. 742, under the head ‘Surface Water,’ where a large number of cases from many different states are cited.) “In Los Angeles Cemetery Assn. v. Los Angeles, 103 Cal. 461, 470 [37 Pac. 375], the same principle is asserted; and in the later case of De Baker v. Southern Cal. Ry. Co., 106 Cal. 257, 282 [39 Pac. 610] 46 Am. St. Rep. 237, it was said: ‘But if the work was inherently and according to its plan and location a dangerous obstruction to the river, such as ordinary prudence should have guarded against, not only the author of the plan to obstruct the stream (the city of Los Angeles), but the person placing the obstruction, was severally liable for the entire damage. ’ (See, also, Reardon v. San Francisco, 66 Cal. 492 [6 Pac. 317], 56 Am. Rep. 109, where the city was held liable for an injury to plaintiff’s lot caused by work done upon the street, which was the immediate, direct and necessary effect of the work done.) “Corcoran v. Benicia, 96 Cal. 1 [30 Pac. 798], 31 Am. St. .Rep. 171, and the other cases cited by appellant on page 5 of his brief do not conflict with the authorities which we have cited above. Corcoran v. Benicia, supra, is to the effect that a municipal corporation is not liable for damages caused by the prevention of the flow of surface water from the lot of a private owner, by raising the street to the grade, where such water does not run in a natural channel across the lot. The distinction between that case and this is obvious, and the other cases cited by appellant rest upon similar facts.” (Emphasis added.) There is no distinction between failure to provide a proper sewer to carry off the surface waters collected by the municipality, and a failure to provide a proper outlet from La Baliona Lagoon. Also there is no distinction between the paving of a street which thereby collected surface water and discharged it on plaintiff’s land and accomplishing the same result by concrete drains. It is said in 43 Corpus Juris 1126, in regard to establishment of drainage systems by municipalities: “But according to a number of authorities this rule does not extend to exempt a municipality from liability for negligence in the adoption of a plan for drains or sewers, and where the municipal authorities negligently adopt or devise a plan or system which is obviously defective, or the unfitness of which has been demonstrated by previous experience, the municipality is liable for the resulting damage. It has also been laid down that the rule under discussion is subject to the distinction that, where the plan adopted by a municipality must necessarily cause an injury to private property, equivalent to some appropriation of the enjoyment thereof to which the owner is entitled, then the municipality is liable, but where the fault found is with the wisdom of the measure or its sufficiency or adaptability to carry out or accomplish the purpose intended, and where its construction according to the plan adopted invades no private rights, then the municipality is not liable.” Pacific Seaside Some v. Newbert P. Dist., 190 Cal. 544 [213 Pac. 967], is a case precisely in point and squarely contrary to the holding of the majority opinion. This court said in that case at page 546: “The gist of the plaintiff’s complaint is that the defendant constructed channels for the water of the Santa Ana River so defectively and negligently that they would not carry the waters of the stream. Plaintiff alleges that ‘had the defendant not changed the natural course of the Santa Ana River, or in anywise interfered with its natural flow, the waters of the Santa Ana River would have flowed on into Newport Bay <and no damage would have accrued to the plaintiff had the said river been permitted to flow as it naturally would had not the defendant constructed its channel to divert the same. . . . ’ It is further alleged in effect that the injury occurred to the plaintiff by reason of the fact that the defendant negligently turned the waters of the Santa Ana River in a channel which was too small, and which was negligently constructed and maintained, and that by reason thereof it was damaged. ‘1 These facts sufficiently state a cause of action. ’’ (Emphasis added.) In the cases at bar defendants constructed drains, altered the channel and interfered with the natural drainage and discharged the waters into the lagoon, the outlet of which “was too small,” all to the damage of plaintiffs. Commencing with the premise that the state or an agency thereof would not be liable for the flooding of plaintiffs’ lands, if an individual would not be responsible for the same conduct, the majority opinion concludes that defendants are not liable because: “It is established in California and other jurisdictions that a lower owner has no right of redress for injury to his land caused by improvements made in the stream for the purpose of draining or protecting the land above, even though the channel is inadequate to accommodate the increased flow of water resulting from the improvements.” (Obviously the statement is directly contrary to Pacific Seaside Home v. Newbert P. Dist., supra.) In connection therewith it is also stated: “Likewise there is no diversion if surface waters, flowing in no defined channel, are for a reasonable purpose gathered together and discharged into the stream that is their natural means of drainage even though the stream channel is inadequate to accommodate the increased flow. A California landowner may not collect such waters and discharge them upon adjacent land . . . but he may discharge them for a reasonable purpose into the stream into which they naturally drain without incurring liability for damage to lower land caused by the increased flow of the stream.” (Emphasis added.) Those propositions are entirely out of line with the long and firmly established law in California with respect to surface waters. An upper owner may not collect surface waters in channels and thereby cause them to flow upon a lower owner’s land in increased volume to his damage. This rule has been commonly referred to as the civil law rule as distinguished from the common law rule. The rule in this state was stated many years ago in Conniff v. San Francisco, supra, at page 49: “An individual has no right to collect in artificial channels mere surface water, and precipitate it upon the land of another. Nor has a corporation, whether public or private, the right to collect in such channels mere surface water precipitated by rain or snow over large districts, and throw it upon the property of another. The eases to this effect are numerous, and may be found cited in a note to section 272 of Gould on Waters.” (See, also, Los Angeles C. Assn. v. Los Angeles, 103 Cal. 461 [37 Pac. 375]; Stanford v. San Francisco, supra; Rudel v. Los Angeles County, 118 Cal. 281 [50 Pac. 400]; Larrabee v. Cloverdale, 131 Cal. 96 [63 Pac. 143]; Wood v. Moulton, 146 Cal. 317 [80 Pac. 92]; Galbreath v. Hopkins, 159 Cal. 297, 298 [113 Pac. 174]; Shaw v. Sebastopol, 159 Cal. 623 [115 Pac. 213]; Heier v. Erull, 160 Cal. 441 [117 Pac. 530]; Thomson v. La Fetra, 180 Cal. 771 [183 Pac. 152]; Le Brun v. Richards, 210 Cal. 308 [291 Pac. 825, 72 A. L. R. 336]; Switzer v. Yunt, 5 Cal. App. (2d) 71 [41 Pac. (2d) 974]; Everett v. Davis, 18 Cal. (2d) 389 [115 Pac. (2d) 821].) Even though the surface waters collected are discharged in a natural channel on the upper owner’s land, he is liable for flooding the land of the lower owner where the cause of the flooding is the increase in the volume of the water flowing to the lower owner beyond the capacity of the stream. The true rule with respect to the drainage of surface waters and rights in relation thereto is set forth in Le Brun v. Richards, supra. Although the factual situation there was not the same as here the rule there announced is applicable to a factual situation such as that here involved. It was there stated: “ ‘ . . . From these rights and burdens, the principle follows that he has a lawful right to complain of others, who, by interfering with natural conditions, cause such surface water to be discharged in greater quantity or in a different manner upon his land than would occur under natural conditions. This is the settled law of this state. ’ In support of the above statement the court cites a long array of earlier decisions. On the other hand, a different rule applies in the case of flood waters. Such waters are regarded as ‘a common enemy against which every man has a right to defend himself, regardless of the fact that the barriers he erects for the protection of his land may cause the flood to rise higher or flow with greater force upon his neighbors. ’ (McDaniel v. Cummings, 83 Cal. 515 [8 L. R. A. 575, 23 Pac. 795, 797].) This rule has been enunciated and applied in a number of cases, among which may be mentioned Lamb v. Reclamation Dist., 73 Cal. 125 [2 Am. St. Rep. 775, 14 Pac. 625], Sanguinetti v. Pock, 136 Cal. 466 [89 Am. St. Rep. 169, 69 Pac. 98, 99], Gray v. Reclamation Dist., 174 Cal. 622 [163 Pac. 1024], and Horton v. Goodenough, 184 Cal. 455 [194 Pac. 34, 35].” And again at page 315: “The upper proprietor may not divert by artificial means the surface waters upon his own lands to the lands of the lower proprietor nor may he accelerate by means of ditches or increase the drainage of his own land to the injury of the lower owner. His right ‘is limited to the disposition of the water through the chosen channels of nature. ’ (Board of Trustees v. Rodley, supra.)” (Emphasis added.) By the weight of authority the right of an upper owner to drain surface water into a watercourse is qualified to the extent that the flow must not be increased beyond the capacity of the stream; the flow of a stream cannot be increased beyond its natural capacity as was done here to the injury of one’s property below by flooding. (Thompson on Real Property, Perm. Ed., vol. 2, sec. 663; Ryder v. Town of Lexington, 303 Mass. 281 [21 N. E. (2d) 382]; North Dakota v. Minnesota, 263 U. S. 365 [44 Sup. Ct. 138, 68 L. Ed. 342]; Jackman v. Arlington Mills, 137 Mass. 277; Belcastro v. Norris, 261 Mass. 174 [158 N. E. 535]; Smith v. Orben, 119 N. J. Eq. 291 [182 Atl. 153]; McCormick v. Horan, 81 N. Y. 86 [37 Am. Rep. 479]; Spink v. Corning, 61 App. Div. 84 [70 N. Y. Supp. 143]; note, 28 A. L. R. 1262). And that rule is applicable where the one doing the draining is a public corporation. (Sisters of St. Joseph Corp. v. Atlas Gravel & Stone Co., 120 Conn. 168 [180 Atl. 303]; Baldwin v. Ohio Twp., 70 Kan. 102 [78 Pac. 424, 109 Am. St. Rep. 414, 67 L. R. A. 642]; Hicks v. Owensboro, 6 Ky. L. Rep. 226; Noonan v. Albany, 79 N. Y. 470 [35 Am. Rep. 540]; McCutchen v. Peekskill, 167 Misc. 460 [3 N. Y. Supp. (2d) 277]; Ryder v. Town of Lexington, supra; Miller v. City of Woodburn, 134 Ore. 536 [294 Pac. 349]; McQuillin Mun. Corps., vol. 6, secs. 2874, 2878, 2881, 2882, 2885.) The obvious result of the conclusion reached in the majority opinion is that an upper owner may, with absolute impunity, gather surface waters on his land in any quantity, discharge them into a stream, and thereby flood the land of a lower owner even though that lower owner’s land is not riparian to the stream, is three miles away from the stream, and has never been burdened with surface waters in connection with the stream involved or from the drainage area involved. The authorities relied upon by the majority opinion for that shocking proposition are not in point when applied to a factual situation disclosed by the record in these cases. They consist, with a single exception, of cases from other jurisdictions. A review of several of them reveals their character. The case of Board of Drain. Com’rs. etc. v. Board of Drain. Com’rs., 130 Miss. 764 [95 So. 75, 28 A. L. R. 1250], predicated its holding on the premise that an upper riparian owner by virtue of his ownership, may collect the surface waters and discharge them into a stream even though a lower riparian owner is injured. That case conceded that the weight of authority ivas to the contrary. Furthermore, the conduct involved was not the act of anyone upper owner which caused the flooding; that result followed only because of a similar practice by many owners. (See Drainage Dist. v. Haverstick, 186 Ark. 374 [53 S. W. (2d) 589, 590, 591].) That is not the case here. In City of Hamilton v. Ashbrook, 62 Ohio St. 511 [57 N. E. 239], the flooding was caused by the breaking of a levee and not by excess drainage into the stream. In Peck v. Herrington, 109 Ill. 611 [50 Am. Rep. 627], the right was limited to the flow of surface waters into natural channels. In that case the court said: ‘ ‘ The natural flow of the surface water was not changed. ...” (Emphasis added.) In the cases at bar surface water is collected in artificial channels and the flow increased. The language in Robb v. Village of La Grange, 158 Ill. 21 [42 N. E. 77], is dictum. In O’Donnell v. City of Syracuse, 184 N. Y. 1 [76 N. E. 738, 112 Am. St. Rep. 558, 6 Ann. Cas. 173, 3 L. R. A. (N. S.) 1053], the flooding was caused by an act of God and not the discharge of drainage waters. The court stated at page 743: “The plaintiff and the other citizens affected by the flood were no worse off than they would have been if the creek had not been used at all for sewerage purposes, except for the incidental deposit of sewage matter.” (Emphasis added.) Plaintiffs in the cases at bar are undeniably worse off because of the drainage system. Dudley v. Village of Buffalo, 73 Minn. 347, 76 N. W. 44, is clearly not in point. There the court stated at page 45: “It is clear, then, that the village is not liable for putting in the upper drain, and thereby carrying the water across the street, because it did not gather the surface water, and unnecessarily discharge it in a stream upon the plaintiff’s premises, where it did not naturally belong.” (Emphasis added.) Waffle v. New York Central R. R. Co., 53 N. Y. 11 [13 Am. Rep. 467], is distinguished in a later New York case which recognizes and applies the rule that an upper riparian owner may not collect surface waters and discharge them into a stream in excess of its capacity. In Noonan v. City of Albany, 79 N. Y. 470 [35 Am. Rep. 540], the court in limiting the rule of the Waffle ease stated at page 477: “The right of a riparian owner to drain the surface-water on his lands into a stream which flows through them, and which is its natural outlet, is an incident to his right as riparian owner to the reasonable use of the stream. But this right is not, we conceive, an absolute right under all circumstances, irrespective of the size of the stream, or the natural purpose which it subserves, to throw into it surface-water by means of ditches or drains, when by so doing it w