Polin

Plaintiffs (husband and wife) own a parcel of unimproved land in the City of San Luis Obispo. Defendants own an abutting parcel. Defendants erected what is known as the Southwood Shopping Center on their land.

Plaintiffs filed a complaint March 22, 1967, setting forth three causes of action against defendants. On March 6, 1969, defendants noticed a motion for summary judgment in favor of defendants as to each of the three causes of action. The motion was heard on declarations filed by the parties and was granted June 6, 1969. Plaintiffs appeal from the judgments entered against them.

Plaintiffs allege in the first cause of action that in 1964 defendants “diverted a stream and storm drain from defendants’ adjoining property onto plaintiffs’ said property” by bulldozing a ditch on plaintiffs’ property'. The result, allege plaintiffs, is that plaintiffs’ land suffered erosion “during and after each rain since the said diversion was made.”

In their answer defendants pleaded as a bar to the first cause of action the three-year statute of limitations of section 338 of the Code of Civil Procedure. In support of then- motion for summary judgment, defendants submitted…