Spiegelberg

This is an appeal by plaintiff from a judgment of nonsuit entered in favor of defendants.

Plaintiff and defendants own adjoining property in a mountainous and forested area near Boulder Creek. Defendants’ lot is about one acre in size with its east boundary parallel to a road called West Road and its west boundary adjoining plaintiff’s lot. Defendants’ residence, garage and swimming pool are located on a level part of the property with the western portion of the lot sloping down toward plaintiff’s property.

A stream or creek channel passes through defendants’ lot in a general north-south direction. This channel originates above the lot to the north, comes down the mountain, and before it reaches defendants’ property is fed by various drainage systems and passes through heavily wooded and overgrown areas. Waters flow through the channel from the first of the rainy season in the mountains, which normally commences in October, until June or July, when the channel becomes dry. During the rainy season storms are common. Because of the storms, the water in the channel can be transformed very quickly from a trickle to a rampaging stream.

Within the boundaries of defendants’…