I dissent. I am of the opinion that if matters of common knowledge were considered in connection with the facts proven, and all reasonable inferences therefrom indulged in favor of the action of the court below, there is enough evidence to support the finding that the defendant did not exercise reasonable care to protect the basement of plaintiff from injury in case of the rain then threatening. This, in my view, is the only question in the case. Being a question of fact, and as the evidence may be different upon a new trial, I should deem it useless to express my dissent if there were no other reason therefor.
I do so solely to emphasize the fact that the views of the majority, except on the point above stated, do not constitute a decision of the court, only three justices concurring on the other points discussed. The intimation and statements that it was the duty of the plaintiff to construct a retaining wall impervious to water, and that one lawfully replacing the pavement of a public street, under authority from the city, is not liable for damages from his failure to use ordinary care to protect the property of abutting owners from overflow or accumulations of rain-water caused by his temporary interference with the surface of the street, do not constitute the law of this case. In my opinion they are contrary to our own decisions and against the principles of justice. (Stanford v. San Francisco, 111 Cal. 198, 202, [43 P. 605];Durgin v. *Page 351 Neal, 82 Cal. 595, [23 P. 133]; Parker v. Larsen, 86 Cal. 236, [21 Am. St. Rep. 30, 24 P. 989]; 3 Farnham on Waters, p. 2625, sec. 895; Paolini v. Fresno Canal Co., 9 Cal.App. 1, [97 P. 1130]; Crommelin v. Coxe, 30 Ala. 318, [68 Am. Dec. 120]; Shields v. Orr etc. Co., 23 Nev. 349, [47 P. 194].)