Edwards v. Atchison, T. & SFR Co.

• Citation: 15 F.2d 37
• Decision Date: 18 October 1926
• Docket Number: No. 4812.,4812.
• Parties: EDWARDS v. ATCHISON, T. & S. F. R. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

15 F.2d 37 (1926)

EDWARDS v. ATCHISON, T. & S. F. R. CO.

No. 4812.

Circuit Court of Appeals, Ninth Circuit.

October 18, 1926.

W. H. Wadsworth and Bordwell & Mathews, all of Los Angeles, Cal., for plaintiff in error.

E. W. Camp and Robert Brennan, both of Los Angeles, Cal., for defendant in error.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

GILBERT, Circuit Judge (after stating the facts as above).

The case is presented in this court on the single contention that there was total absence of evidence sufficient in law to prove a prescriptive right in the defendant to use the plaintiff's land for discharging thereon drainage waters through the culvert; the plaintiff asserting that no prescriptive right begins to run until a right of action accrues, and that no right of action accrues until injury is inflicted. The evidence indicates with reasonable certainty that from the year 1887 until the date of the injury here complained of winter floods caused surface waters to flow along the ditch and through the culvert and upon the land of the plaintiff, and that the flowing of such waters at some time prior to the injury complained of created a depression or small ravine upon the plaintiff's land, but no serious injury thereto. The discharge of surface waters through the culvert was open and visible, and the plaintiff is presumed to have had knowledge of it. Gray v. Cambridge, 189 Mass. 405, 76 N. E. 195, 2 L. R. A. (N. S.) 976; 9 R. C. L. 780. It was not necessary for the defendant to show a continuous use. The interruption of the use by the intervention of a dry season would not disprove continuity. Hesperia Land Co. v. Rogers, 83 Cal. 10, 23 P. 196, 17 Am. St. Rep. 209. It may be conceded, as the plaintiff contends, that, in order to acquire a prescriptive right, there must have been such invasion of the rights of the plaintiff as to give him a right of action, and that a prescriptive right does not commence to run until there is such invasion. But it is not essential to an adverse user that such user has resulted in actual damages (19 C. J. 889), for each act of user before the user ripens into a right is a trespass for which an action may be maintained (2 Wood, Nuisances, 708; Eells v. Chesapeake & O. Ry. Co., 49 W. Va. 65, 38 S. E. 479, 87 Am. St. Rep. 787). "The law implies nominal damages from the invasion of a right, and every use may be deemed adverse which tends in any degree to impose a servitude or burden upon the estate of another." White v....