I concur in the judgment of affirmance, but I do not agree with the analysis of the case of Mogle v. Moore, 16 Cal. (2d) 1 [104 Pac. (2d) 785], contained in the majority opinion and I am not in accord with the views expressed in said opinion with respect to the character of the waters which are the subject of this action.
The majority opinion states that the waters involved in the case of Mogle v. Moore were flood waters because the trial court found that some of the waters which constituted the flow in West Cucamonga Creek came from check dams which infrequently overflowed, which dams were situated a distance of approximately' six miles from where these waters were *396diverted from West Cucamonga Creek and conveyed to plaintiff’s property. In the Mogle case the trial court found that West Cucamonga Creek was a natural stream or watercourse with a well defined channel, and “that all the waters so flowing in said channel, flow in a well defined body from a point where they enter said channel at or near the City of Upland, California, to the defendant’s property, and that none of said waters once they have 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 defendant’s property.” The court also found that the waters of West Cucamonga Creek were diverted from said creek by artificial means and into an artificial channel and conveyed thereby a distance of approximately one mile to defendant’s property and then discharged onto plaintiff’s property by artificial means provided by defendant.
Notwithstanding these findings by the trial court in the Mogle case, this court held that the waters so diverted and discharged by defendant onto plaintiff’s property, constituted flood or enemy waters which defendant was entitled to divert away from his property and that any injury suffered by plaintiff as the result of such diversion was damnum, absque injuria.
I disagreed with the majority opinion in the Mogle case and set forth my views at length in a dissenting opinion at the time said case was decided by this court.
The majority opinion in the case at bar now concedes that the statement of this court in the majority opinion in the Mogle case that waters escaping “at the end of the channel,” was incorrectly added. This statement in the majority opinion does not cure the erroneous pronouncements in the majority opinion in the Mogle case. It simply leaves the Mogle case standing as authority for the proposition that waters which constitute the natural and normal flow of a stream, when artificially diverted from said stream, and conveyed a distance of 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 action for damages.
*397The Mogle case was a much weaker case than the case at bar so far as the rights of the respective defendants are concerned, but this court reversed the judgment of the trial court in that case granting an injunction and awarding damages to the plaintiff, and is affirming the judgment in .the case at bar which awards similar relief to the plaintiff. The two conclusions are absolutely inconsistent, and there is no logical basis upon which they can be reconciled.
There can be no question but that the majority opinion of the District Court of Appeal in the case at bar (Everett v. Davis, (Cal. App.) [107 Pac. (2d) 650]) was the result of the confusion created by the decision of this court in the Mogle case, and in my opinion the majority opinion in the case at bar simply adds to that confusion.
It appears from the record in the case at bar that the waters which are the subject of this action, during certain periods of each year flow for a number of miles within a well defined watercourse down what is known as Estes Wash to the natural end of said watercourse located on appellant’s lands, which have been adapted to the growing of ordinary field crops. There the waters spread out and mostly disappear, and such was the condition for many years. That by means of artificial structures appellants began diverting the water from the end of the watercourse over and across their land in such a manner as to cause said waters to discharge onto respondent’s land, upon which there is a valuable growing orchard resulting in great damage thereto.
The legal proposition involved is whether or not appellants have the right to so divert the water flowing onto their land from Estes Wash that it discharges onto and causes damage to plaintiff’s property without responding in damages to plaintiff as the result of such diversion.
Under rules of law which should be regarded as settled in this state by numerous decisions of this court, the defendants did not have the right to discharge such waters onto plaintiff’s land to the latter’s damage unless it can be said that said waters were flood or enemy waters as defined in the decisions of this court. (Barnes v. Marshall, 68 Cal. 569 [10 Pac. 115]; Lamb v. Reclamation District No. 108, 73 Cal. 125, 126 [14 Pac. 625, 2 Am. St. Rep. 775]; De Baker v. Southern California Railway Co., 106 Cal. 257 [39 Pac. 610, 46 Am. St. Rep. 237]; Sanguinetti v. Pock, 136 Cal. 466 [69 Pac. 98, 89 Am. St. Rep. *398169]; Horton v. Goodenough, 184 Cal. 451 [194 Pac. 34]; Thomson v. La Fetra, 180 Cal. 771 [183 Pac. 152].)
I think it is clear from the facts appearing in the record in this case that the waters discharging from Estes Wash onto defendants’ property which they diverted and caused to discharge onto plaintiff’s property with such destructive force that plaintiff was caused to suffer damage thereby, were not flood waters as defined in the above mentioned authorities. Obviously, they were stream waters until they defused out over the flat lands and ceased to be confined in a channel. In my opinion these waters did not then become surface waters as such waters are defined in the decisions of this court. (Heier v. Krull, 160 Cal. 441 [117 Pac. 530].)
Regardless of what definition may be given to waters of the character here involved, in my opinion the law should be that where a natural stream ends and the natural flow therefrom spreads out over land without a definite channel, whether we call such waters after leaving the stream, surface waters or stream waters, the owner of such lands should not be permitted to accumulate or concentrate the same into a ditch or channel and discharge the same upon his neighbor’s property with such destructive force that damage results therefrom without responding in damages and being restrained from the commission of such acts which will cause further damage to his neighbor’s land. My conclusion on this proposition is based upon the maxim that one should not be permitted to so use his own property as to cause damage to another. This rule should be applicable to a situation where the person causing the damage acquired his property in the light of the physical situation existing at the time of its acquisition, and if his property was then subjected to the burden of the run-off of a natural stream such as Estes Wash, he should not be permitted to change the natural conditions to the damage of his neighbor’s property, as the latter is entitled to the maintenance of the natural conditions which existed at the time he acquired his property, or at the time the respective properties were developed and devoted to beneficial uses.
For the foregoing reasons the judgment of the trial court in my opinion should be affirmed.