Having dissented from the order denying a rehearing of this case, I wish to state that my reason for so doing is that this opportunity for reviewing and if possible reconciling a series of apparently conflicting decisions upon a question of vital importance should not be lost. This case, in my opinion, is in conflict with Eachus v. Railway Co., 103 Cal. 614, as that was in conflict with Corcoran v. Benicia, 96 Cal. 1. In the Corcoran case, as in this case, it was held that the plaintiff had no right of action. In the Eaehus case, supra, it was held that he did have a right of action, and if, as I contend, the three cases are all governed by the same principle, it is time that the court should plainly declare what the rule is with respect to the right to damages in all cases, or what the distinction is between the two classes of cases if there is a distinction.
It is held that the owner of a low lot flooded with surface water by the grading of a street is entitled to no compensation *550for the damage. At the same time it is held that the owner of a high lot made difficult of access by lowering the surface of the street to bring it to the established grade is entitled to damages. Why this difference? It is the established law of California that the owner of higher land has an easement for the natural discharge of surface water upon the lower land adjoining, and the right of access to one’s land over a highway is but an easement. The two rights, although not identical, are of the same nature and are equally entitled to be protected from unlawful invasion. Why is it, then, that a city may, with impunity, destroy one right by bringing a street to the established grade, when for infringing the other right by doing tho same thing it must make compensation? This is a question which has not been answered thus far, but it is a question for which an answer ought to be found if such opposite rules of decision are to prevail.
The only substantial reason ever assigned for denying compensation to the owner of a low lot flooded with surface water by raising a street to the established grade is that he acquires his lot with knowledge that the city has power to establish a grade for its streets to which the surface of the lots must be made to conform, and this reason applies with as much force to the lowering of the natural surface as to the raising of it, and. to any consequential injury from either cause. If it is a good reason for denying damages to the owner of the low lot for flooding, it is equally conclusive against any allowance of damages to the owner of the high lot by making it inconvenient of access. Whatever the rule is, it ought to be the rule for every like case.'