By the Court, Wallace, C. J.:
The plaintiffs are owners of certain premises situate upon the western bank of the Sacramento river, in the county of Tolo. The American river is a comparatively short stream, having its sources at a high altitude in the mountains, and running at a generally steep grade to the point of its confluence with the Sacramento river on the eastern shore of the latter river; and prior to the year 1862 the point of confluence was to the southerly of the premises of the plaintiffs. In periods of protracted rain storms it rises much more rapidly than the Sacramento river does, but the force of its current, at its point of confluence with the latter river, was somewhat controlled by the circuitous natural channel it followed in approaching the latter river, and the premises of the plaintiff, being situate on the Tolo shore considera[539] bly to the northward of the point where the American river emptied into the Sacramento river, were not injured by the current of the former river. But in its sweep to the southward on the Sacramento shore, and before debouching into the Sacramento river, the volume and violence of the American river in protracted rain-storms was so great as to imperil the safety of the city of Sacramento, of which city it formed one of the corporate limits; and to provide security against its threatened overflow, an Act of the Legislature was passed in April, 1862, (p. 151), by which the defendants Swift, Crocker, Knox and Holmes were constituted a Board of “ City Levee Commissioners,” and empowered “ to turn or straighten the channel of any portion of the American river deemed necessary for the protection of the city.” The Board and the defendants, Rooney and Johnson, employed by the Board as contractors to do the work, straightened the channel of the American river, making it approach the Sacramento river directly and at right angles, and thereby accelerating its current in emptying into the latter stream. The point of debouchment into the Sacramento river was by this means changed from below to above, and nearly opposite to the premises of plaintiffs, on the Tolo shore, and in December, 1867, the waters of the American river poured into and across the channel of the Sacramento river, upon and against the premises of the plaintiffs, on the opposite- shore, with such force and volume as to wash away land and improvements thereon, and destroy hogs, cattle and other property to the value of several thousand dollars, and this action is brought to recover of the defendants the damages sustained by the plaintiffs in the premises, and the latter, having been nonsuited at the trial, bring this appeal.
1. The work which was directed by the statute was, in itself distinctively a work of a public character, and Avithin the general police power of the State to perform. It was designed to protect a populous and important district of the State from threatened inundation and apprehended destruction. It is of no consequence upon this point, whether the city of Sacramento, which was to be protected, had at that [540] time a corporate existence or not—the authority of the State in the premises was none the less in degree, even if the inhabitants of the district of country to be protected “ did not in any sense constitute a body politic or corporate.”
2. The means by which the protection was to be secured was the draining of the waters of the American river, in a more direct and rapid manner into the Sacramento river, which, as being one of the public highways of the State, was within its absolute control—subject only to the rights of commerce.
3. There is no question that the work, as done by the defendants, was in point of execution done with proper care and skill. The power was, in terms, given them by the statute “to turn or straighten the channel of any portion of the American river, deemed necessary for the protection of the city.” It is not pretended, indeed, that they have not straightened it. One, in fact the main, ground of complaint is, that they have made it straight, or nearly so, and that it enters the Sacramento river at right angles to that stream. But the propriety of this, under existing circumstances, was a matter confided by the sovereign to the better judgment of the Commissioners themselves, and they were directed to turn and straighten the channel, or any part of it “deemed necessary for the protection of the city.” They were to exercise their judgment honestly, and to do the work, of course, with proper care and caution, and not maliciously, oppressively or arbitrarily, to the injury of the rights of other persons. But, keeping within the scope of these powers, they are not to be held for mere errors of judgment, nor for injuries to others resulting from the work itself, if properly performed and with due care. Otherwise, as remarked by Lord Kenyon, every statute of this character “would give rise to an infinity of actions.” (Governor, etc. v. Meredith, 4 Term R. 796.)
4. And on looking into the evidence submitted by the plaintiffs at the trial, we see no attempt to impugn the good faith of the defendants in making the junction of the two rivers at the point selected, or their skill in the mechanical execution of the work itself. It is true that Mr. Mathews, [541] the civil engineer from Grass Valley, is of opinion that “the natural and inevitable effect of the change in the channel of the American river, and turning it into this canal, was to throw the waters of the American river directly across the Sacramento river upon the opposite bank.” This may be so, and of course easily to be seen after the event has actually happened; but if, at the time the work was projected and put into execution, it was foreseen, or at all apprehended by any person, even the plaintiffs themselves, or others on the Tolo shore, that such results would follow, the records fails to show the fact. After all, the damage would seem to have directly resulted not so much from the mere force with which the waters of the American river were immediately thrown upon the Yolo shore, as from the after current and “ undertow” running down the western shore of the river—spoken of by witness Hoagland.
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By the Court, Wallace, C. J.:
The plaintiffs are owners of certain premises situate upon the western bank of the Sacramento river, in the county of Tolo. The American river is a comparatively short stream, having its sources at a high altitude in the mountains, and running at a generally steep grade to the point of its confluence with the Sacramento river on the eastern shore of the latter river; and prior to the year 1862 the point of confluence was to the southerly of the premises of the plaintiffs. In periods of protracted rain storms it rises much more rapidly than the Sacramento river does, but the force of its current, at its point of confluence with the latter river, was somewhat controlled by the circuitous natural channel it followed in approaching the latter river, and the premises of the plaintiff, being situate on the Tolo shore considera[539] bly to the northward of the point where the American river emptied into the Sacramento river, were not injured by the current of the former river. But in its sweep to the southward on the Sacramento shore, and before debouching into the Sacramento river, the volume and violence of the American river in protracted rain-storms was so great as to imperil the safety of the city of Sacramento, of which city it formed one of the corporate limits; and to provide security against its threatened overflow, an Act of the Legislature was passed in April, 1862, (p. 151), by which the defendants Swift, Crocker, Knox and Holmes were constituted a Board of “ City Levee Commissioners,” and empowered “ to turn or straighten the channel of any portion of the American river deemed necessary for the protection of the city.” The Board and the defendants, Rooney and Johnson, employed by the Board as contractors to do the work, straightened the channel of the American river, making it approach the Sacramento river directly and at right angles, and thereby accelerating its current in emptying into the latter stream. The point of debouchment into the Sacramento river was by this means changed from below to above, and nearly opposite to the premises of plaintiffs, on the Tolo shore, and in December, 1867, the waters of the American river poured into and across the channel of the Sacramento river, upon and against the premises of the plaintiffs, on the opposite- shore, with such force and volume as to wash away land and improvements thereon, and destroy hogs, cattle and other property to the value of several thousand dollars, and this action is brought to recover of the defendants the damages sustained by the plaintiffs in the premises, and the latter, having been nonsuited at the trial, bring this appeal.
1. The work which was directed by the statute was, in itself distinctively a work of a public character, and Avithin the general police power of the State to perform. It was designed to protect a populous and important district of the State from threatened inundation and apprehended destruction. It is of no consequence upon this point, whether the city of Sacramento, which was to be protected, had at that [540] time a corporate existence or not—the authority of the State in the premises was none the less in degree, even if the inhabitants of the district of country to be protected “ did not in any sense constitute a body politic or corporate.”
2. The means by which the protection was to be secured was the draining of the waters of the American river, in a more direct and rapid manner into the Sacramento river, which, as being one of the public highways of the State, was within its absolute control—subject only to the rights of commerce.
3. There is no question that the work, as done by the defendants, was in point of execution done with proper care and skill. The power was, in terms, given them by the statute “to turn or straighten the channel of any portion of the American river, deemed necessary for the protection of the city.” It is not pretended, indeed, that they have not straightened it. One, in fact the main, ground of complaint is, that they have made it straight, or nearly so, and that it enters the Sacramento river at right angles to that stream. But the propriety of this, under existing circumstances, was a matter confided by the sovereign to the better judgment of the Commissioners themselves, and they were directed to turn and straighten the channel, or any part of it “deemed necessary for the protection of the city.” They were to exercise their judgment honestly, and to do the work, of course, with proper care and caution, and not maliciously, oppressively or arbitrarily, to the injury of the rights of other persons. But, keeping within the scope of these powers, they are not to be held for mere errors of judgment, nor for injuries to others resulting from the work itself, if properly performed and with due care. Otherwise, as remarked by Lord Kenyon, every statute of this character “would give rise to an infinity of actions.” (Governor, etc. v. Meredith, 4 Term R. 796.)
4. And on looking into the evidence submitted by the plaintiffs at the trial, we see no attempt to impugn the good faith of the defendants in making the junction of the two rivers at the point selected, or their skill in the mechanical execution of the work itself. It is true that Mr. Mathews, [541] the civil engineer from Grass Valley, is of opinion that “the natural and inevitable effect of the change in the channel of the American river, and turning it into this canal, was to throw the waters of the American river directly across the Sacramento river upon the opposite bank.” This may be so, and of course easily to be seen after the event has actually happened; but if, at the time the work was projected and put into execution, it was foreseen, or at all apprehended by any person, even the plaintiffs themselves, or others on the Tolo shore, that such results would follow, the records fails to show the fact. After all, the damage would seem to have directly resulted not so much from the mere force with which the waters of the American river were immediately thrown upon the Yolo shore, as from the after current and “ undertow” running down the western shore of the river—spoken of by witness Hoagland.
5. It is lastly argued by the counsel for the plaintiffs, that the destruction of the property of his clients, occurring in consequence of the execution of this work, was a taking of that property for public use within a constitutional sense, and that no compensation therefor having been provided by the Act under which the defendants proceeded, it follows that the Act in question “is inoperative as a defense to this action.” On recurring to the Act, however (Section 6,) it is seen that proper provision is made for the taking of such lands in the city of Sacramento, or in the county of Sacramento, as “maybe necessary and proper to turn or straighten the channel of the American river.” And we are of opinion that the destruction of the property of plaintiffs on the opposite bank of the Sacramento river, as a mere consequence of the impinging of the current of the American river, caused by this purely public work, is not a taking of such property entitling the plaintiffs to receive compensation as for property taken for public use. “If” (says Judge Cooley, referring to the eminent domain) “for instance, the State, under its power to provide and regulate the public highways, should authorize the construction of a bridge across a navigable river, it is quite possible that [542] all proprietary interests in land upon the river might be injuriously affected; but such injury could no more give a valid claim against the State for damages than could any change in the general laws of the State, which, while keeping in view the general good, might injuriously affect particular interests” (Const. Lim. 541); and in support of this view, he refers to the opinion and judgment of the Supreme Judicial Court of Massachusetts, in a case in which it appeared, that by reason of the construction of a railroad across the mouth of a creek, upon which the mill of the petitioners was situate, the flow of the tide-water into the mill-dam had been obstructed and prevented to such a degree that the mills of the petitioners could not be worked as effectually as before. The Court, however, was of opinion that such an obstruction to the flow and reflow of the tide-waters was without legal objection, “and,” said Mr. Chief Justice Shaw, in delivering its opinion, “if the mill-owner or coterminous proprietor suffers in consequence, it is damnum absque injuria." (Davidson v. Boston and Maine Railroad, 3 Cush. 91.) I am, therefore, of opinion that the Act of the Legislature furnishes a sufficient defense to this action, and that, without noticing other points made for the defendants, the judgment and order denying "a new trial should be affirmed, and it is so ordered.
Neither Mr. Justice Bhodes, nor Mr. Justice Crockett, expressed an opinion.