I dissent.
By adopting the opinion of the District Court of Appeal in this case, a majority of this court has held, that waters which constitute the natural and normal flow of a stream, when artificially diverted from said stream, and conveyed a distance *13of over a mile away from said stream by means of an artificial watercourse, then become flood waters, and that an owner of land affected thereby has the right to discharge such waters upon the land of his neighbor with such destructive force as to cause irreparable damage to the latter, and that a person so damaged has no recourse either by injunction or an action for damages.
I cannot subscribe to such a doctrine. It is obviously unsound. It is unsupported by any decided eases either in this or other jurisdictions. It is predicated upon a misconception of the doctrine of damnum absque injuria as applied to the facts found by the trial court in this case.
The majority opinion correctly states that this appeal is before us on the judgment roll alone. Therefore, we must look to the pleadings and the findings of the trial court exclusively for the determination of the issues involved.
The trial court found in substance that West Cucamonga Creek is a natural stream or watercourse rising at the base of the mountains north of the city of Upland in San Bernardino County and flows in a general southwesterly direction; that at a point about six miles south of the city of Upland on the property of John G-. Clock during the year 1926 by artificial means the waters naturally flowing in said stream were diverted therefrom in a southerly direction into an artificial watercourse constructed on a strip of land twenty feet wide known as “Comet Avenue”; that this watercourse was extended from time to time a distance of about one mile in a southerly direction to the property of defendants or to what is known as Schaefer Avenue at the north boundary of defendants’ property, and there said waters were permitted to spread out over defendants’ land and were not confined in any channel or watercourse; that this condition existed until the rainy season of the years 1936-1937; that thereafter the defendants dug a ditch upon and in said Comet Avenue where the same extended through defendants’ property and extended said ditch or channel to the property of plaintiffs. Defendants also placed a fence along the west boundary line of Comet Avenue extending from the north boundary to the south boundary of defendants’ property which fence was for the purpose of and did tend to obstruct the flow of the waters from said Comet Avenue upon the lands of defendants and to. confine the same within said Comet Avenue and the artifi*14cial ditch or channel constructed therein; that as a result of the construction and extension of said artificial channel by-defendants, the said waters, sand and debris were confined therein and cast in large quantities upon the land of plaintiffs immediately to the south thereof; that the construction and maintenance of said artificial channel or ditch by the defendants and the precipitation of said waters, sand and debris therefrom upon the land of plaintiffs, did damage to plaintiffs’ said land; that such waters, sand and debris had never theretofore flowed upon the lands of plaintiffs, except such portion of the water as might flow southwesterly upon the surface of the ground over the southwest portion of plaintiffs’ property.
The court expressly found that all of the water discharging on and over defendants ’ land was surface water, and that none of the waters which flowed on or over defendants’ land were flood waters.
The court also expressly found that the ditch or channel extending from West Cucamonga Creek on the John G. Clock property to defendants’ property was not a natural watercourse.
The court also found that all of the water flowing in West Cucamonga Creek to the point where it was diverted on the John G. Clock property, was confined within the channel of said creek and that after the diversion of said waters into the ditch or canal constructed on Comet Avenue, the same were confined therein.
There is no finding that there was any excessive or extraordinary flow of water in said creek or that the water flowing therein was anything other than the natural and normal flow which usually and customarily flowed therein.
Before proceeding further, I will quote the exact language of the findings of the trial court:
“That said channel formerly carrying the waters of said West Cucamonga Creek, now exists upon the surface of the land as it has existed from time immemorial, ...”
‘' That at the point where said channel intersects Comet Avenue upon the property of John G. Clock as aforesaid, the said stream originally flowed in a southwesterly direction. That since the year 1926, Comet Avenue, from said point of intersection southerly, has been cleared out and artificial dikes have been constructed from time to time along the sides *15thereof by the adjacent property owners southerly to the defendants’ property, and that by the year 1935, all the waters flowing in said channel have flowed directly south along Comet Avenue to the north boundary of the defendants’ property which adjoins Schaefer Avenue on the south thereof.”
It is clear from the foregoing findings that had said waters not been diverted from West Cucamonga Creek by artificial means into Comet Avenue, said waters would have continued to flow on down the channel of West Cucamonga Creek in a southwesterly direction and none of said waters would ever have reached the property of either defendants or plaintiffs.
The court further found:
“All of the waters so flowing in said channel, flow in a well-defined body from a point where they enter the said channel at or near the city of Upland, California, to the defendants’ property, and that none of the said waters once having reached said channel escape therefrom from the time that they enter therein until they reach the intersection of Comet Avenue and the north line of defendants’ property. All of said waters, except such as are lost by percolation in the stream-bed, flow in a continuous stream through said channel as aforesaid to the north line of defendants’ said property, where said channel ceases to exist, and such quantities of water as has flowed out of the end of said channel, has continued down Comet Avenue on the surface of the ground for a short distance south of Schaefer Avenue and then spread out and flow southwesterly across defendants’ said property, on the surface of the ground, following the natural slope of his said land.”
Thus, it appears from the findings of the trial court that the waters in question at no point or place overflowed the banks of West Cucamonga Creek or the banks of the artificial channel constructed in Comet Avenue, but when said waters reached the end of said artificial channel, they simply spread out and flowed over the surface of the land in a southwesterly direction in accordance with the natural slope thereof.
In view of the foregoing findings, there is no basis whatever for the conclusion reached by the majority of this court in the opinion approved by it, that the waters which defendants caused to discharge and flow upon plaintiffs’ property with destructive force constituted flood waters to which the rule applicable to waters which are a “common enemy” can *16be invoked by defendants in order to relieve themselves of liability to plaintiffs for the damage caused to the latter’s land as the result of the acts of said defendants in causing the discharge of such waters upon plaintiffs’ land with such destructive force that it resulted in the damage thereto found by the trial court to have been caused thereby.
Notwithstanding the finding of the above and foregoing facts by the trial court, the opinion adopted by the majority of this court is based upon the erroneous assumption that the waters overflowed or escaped from the natural creek bed or channel upon the property of John G. Clock, and thus became flood waters; that thereafter, each property owner to the south constructed an artificial channel on Comet Avenue to control such flood waters and to protect his or her property from such flood waters until the channel arrived at the north boundary of defendants’ property; that such waters, upon arriving at the north boundary of defendants’ property, continued to be flood waters, and for that reason, defendant had the legal right to extend said artificial channel upon and along Comet Avenue and cast such waters upon the land of plaintiffs. It is obvious that the conclusion reached in said opinion is based upon the erroneous assumption that the waters of West Cucamonga Creek which constituted the natural and normal flow of said creek overflowed the natural banks of said creek upon arriving at the property of John G. Clock and thereafter became flood waters. As stated above, this assumption is directly contrary to the express findings of the trial court to the effect that the waters of said creek were diverted therefrom on to the property of said John G. Clock by artificial means into an artificial channel constructed on and along Comet Avenue, which channel was from time to time extended in a southerly direction to the lands of defendants and by defendants extended to the lands of plaintiffs.
The opinion adopted by the majority of this court concludes with the erroneous assumption that because the waters in question were once confined within the channel of West Cucamonga Creek they could not be classified as surface waters thereafter and that since these waters were the result of a storm and escaped from the natural channel of West Cucamonga Creek, they could not be classified as stream waters, and must therefore be classified as flood waters. This conclusion is clearly erroneous, because it fails to take into consideration the *17facts found by the court that these waters were diverted by artificial means from West Cucamonga Creek on the John G. Clock property and conveyed in an artificial and man-constructed channel to defendants’ property where the same were permitted to spread out over defendants’ land until they saw fit to extend the artificial channel on Comet Avenue through their property to plaintiffs ’ land.
While the factual situation as disclosed by the findings of the trial court may not be such as to support the conclusion reached by the trial court that the waters flowing in the artificial channel on Comet Avenue became surface waters when the same spread out over defendants ’ land, such factual situation clearly does not support the conclusion reached in the opinion of the majority of this court that such waters thereby became flood waters or enemy waters which the defendants were entitled to use any means available to divert away from their land notwithstanding such diversion might result in damage to the lands of defendants’ neighbors onto which such waters were discharged with such destructive force that such lands were damaged thereby.
It is obvious that so long as the waters in question were confined in the natural channel of West Cucamonga Creek, they constituted stream waters regardless of the source from which they emanated. After their diversion into the artificial channel constructed in Comet Avenue, they remained stream waters but the rules of law applicable to waters flowing in a natural stream or watercourse cease to be applicable to such waters after the same were diverted by artificial means from said stream.
If the citation of authority were necessary to support the position of the plaintiffs in this action, the case of Thomson v. La Fetra, 180 Cal. 771 [183 Pac. 152], furnishes ample authority for the conclusion reached by the trial court that plaintiffs are entitled to injunctive relief to protect their property against the continued discharge of such waters thereon. The factual situation in that case is quite similar to that in the case at bar.
In that case this court held that waters flowing in a natural watercourse which are diverted and discharged by artificial means onto adjacent land could not be classified as flood waters and that the rule applicable to waters which are a “common *18enemy" could not be invoked under the factual situation there found to exist. In that case this court said:
‘ ‘ That rule has application only to flood waters in the strict sense, that is to say, to waters escaping because of their height from the confinement of a stream and running over the adjacent country. The waters here involved are not of that sort.
‘' The water not being in any sense flood water, the defendants, by changing its course and easting it upon the lands of the plaintiff, were guilty of a trespass. The fact that the water may have threatened injury to the defendants affords no justification or excuse to palliate the wrong done. If the injury threatened to the defendants’ lands was the result of wrongful artificial changes made by upper proprietors, resulting in an increased, accelerated, or concentrated flow of water upon and across the lands of the defendants, their remedy was to proceed by appropriate action against the wrongdoers to enjoin such changes or to have the nuisance abated, and not by an attempt to shift the burden of the wrong upon an innocent third party who but for their intervening willful act would have suffered no injury at all. (Larrabee v. Cloverdale, 131 Cal. 96 [63 Pac. 143] ; Castle v. Reeburgh [75 Okl. 22] 181 Pac. 297.)
"The damage suffered by the plaintiff not having resulted from a lawful act, it cannot be considered damnum absque injuria. The view which we have taken of the case makes it unnecessary for us to discuss and decide the plaintiff’s contention that the upper proprietors had acquired a prescriptive right to have the water in question carried off over the defendants’ lands."
In view of the inevitable conclusion that the waters which defendants caused to be discharged upon plaintiffs ’ lands were not flood waters and that the rule applicable to waters which are a "common enemy" cannot be invoked by defendants under the facts found by the trial court, I am of the opinion that the judgment of the trial court should be affirmed.