Callens

Defendant and appellant county of Orange, after judgment on a jury verdict for plaintiffs for $8,000 damages, filed this appeal. It is claimed, in one cause of action, that the damage to plaintiffs’ property was by reason of defendant’s failure to erect a dam or other obstruction sufficient to prevent surface and flood waters from flowing upon plaintiffs’ land, and in a second cause of action, that defendant negligently and wrongfully excavated and cut drainage ditches and changed the natural course and flow of surface and flood waters so as to cause them to flow over and upon plaintiffs’ land and wash it away and render it unfit for agricultural purposes. Approximately five acres of land, amounting to 3,800 cubic yards of dirt, were washed away.

Defendant entered a general denial with the exception that it admitted certain work was done, and pleaded as an affirmative defense, contributory negligence of plaintiffs, act of God, and that the land owned by plaintiffs constituted a natural swale or water course across it, and that the water, if any, which gathered upon plaintiffs’ property was following the natural drainage in the area.

The first question raised on this appeal…