| OCR Text |
Show 554 DIFFUSED SURFACE WATERS conditions were or would be if not altered. As a result, there has been an understandable reluctance of courts to strictly apply the rule to urban property, but no clearly defined alternative rule has emerged. Turning then to its decision to superimpose a rule of reasonableness of conduct upon the modified civil law rule, the California Supreme Court thus expounded its thesis:89 We find the law in Calfornia, both as to urban and rural areas, to be the traditional civil law rule which has been accepted as the basis of harmonious relations between neighboring landowners for the past century. But no rule can be applied by a court of justice with utter disregard for the peculiar facts and circumstances of the parties and properties involved. No party, whether an upper or a lower landowner, may act arbitrarily and unreasonably in his relations with other landowners and still be immunized from all liability. It is therefore incumbent upon every person to take reasonable care in using his property to avoid injury to adjacent property through the flow of surface waters. Failure to exercise reasonable care may result in liability by an upper to a lower landowner. It is equally the duty of any person threatened with injury to his property by the flow of surface waters to take reasonable precautions to avoid or reduce any actual or potential injury. If the actions of both the upper and lower landowners are reasonable, necessary, and generally in accord with the foregoing, then the injury must necessarily be borne by the upper landowner who changes a natural system of drainage, in accordance with our traditional civil law rule. With respect to determination of the question of reasonableness, the supreme court stated, among other things:90 * * * the question of reasonableness of conduct is not related solely to the actor's interest, however legitimate; it must be weighed against the effect of the act upon others. (For a discussion of the elements of liability, see Rest., Torts, § § 822-833.) The issue of reasonableness becomes a question of fact to be determined in each case upon a consideration of all the relevant circumstances, including such factors as the amount of harm caused, the foreseeability of the harm which results, the purpose or motive with which the possessor acted, and all other relevant matter. * * * It is properly a consideration in land development problems whether the utility of the possessor's use of his land outweighs the gravity of the harm which results from his alteration of the flow of surface waters. * * * The gravity of harm is its seriousness from an objective viewpoint, while the utility of 89 412 Pac. (2d) at 536-537, 50 Cal. Rptr. at 280-281. 90412 Pac. (2d) at 537, 50 Cal. Rptr. at 281. |
