Tahan

Plaintiff brought this action against defendant in the court below to recover damages to his land; he inter alia alleged that the land was inundated by the flood flows of the Fresno River when defendant unlawfully built a dike across a county road. After issue was joined on the complaint, defendant moved for a summary judgment and the motion was granted. Plaintiff appeals from the adverse judgment.

For the purpose of this appeal, the undisputed facts are these: Defendant owns land in Madera County which he has farmed since 1929. The land is located within proximity of the Fresno River southwest of a point where the river overflows its banks on the average of once every two or three years; the overflow travels in a generally flat sheet in a westerly and southwesterly direction, and defendant’s land lies in the path of these flood waters.

Prior to July 1964, defendant’s land was protected from the floodwaters of the river by a levee which has been in existence for about 20 years. The levee is south of Avenue 14, a county road, traverses the north boundary of defendant’s land and continues west for a distance of about two miles; when the flood waters reached the levee,…