Dennis

This is an action to recover damages for the washing away of a part of plaintiffs’ land by flood waters flowing down Santiago Creek, near the City of Orange. The defendant city owns certain land lying in the bed of this creek, together with certain land along the west bank thereof. This bank is about twelve feet higher than the normal bed of the creek. The plaintiffs’ land adjoins this land owned by the city and prior to April, 1926, was entirely separated from the creek by a narrow strip of the city’s land, although at one end it came very near the bank of the creek. Prior to February, 1927, two rows of twenty-six year old eucalyptus trees, seventy-five feet tall, stood along the bank of the creek, mostly upon the strip of land owned by the city, a few being upon the plaintiffs’ land where it approached nearest to the bank of the creek. The bank of the creek with these trees upon it had thus stood uninjured for many years prior to April, 1926. On August 16, 1924, the City of Orange leased its above-described land to one George A. Simpson, for the purpose of excavating sand, rock and gravel from the bed of the creek thereon. This lease provided that no excavating should be done…