*1 January En 1970.] Banc. [No. Respondents, Bjorvatn et al., Pacific Oddmund * Appellants. al., et Inc., Construction, Mechanical Ager, by D. Frank Guttormsen, Willits & Scholfield, Frey, appellants. Howard, and Thomas D. for Young by respondents. & Victor Hoff, Hoff, V. bought house their J. When
Hale, they Way knew Sand Point Northeast in Seattle They badly damaged sinking did land. had been they repaired expect, years had however, after nearby house, of a sewer restored the construction They bring produce action this would similar against Municipality Metropolitan and the Seattle injuries their house and land. contractor to Bjorvatn
Oddmund looked over the at carefully bought Way he it in Point before Sand Northeast 1962. He the land house settled saw that beneath the had through years producing cracks in the basement causing house house floors to basement and walls slope fireplace separate In one the wall. place, off he observed that the basement floor had sheared
* Reported in P.2d 432. damaged Despite repoured floor
and had been level. Bjorvatn buy it. condition, house and restore decided present In case, the trial determine the court had to original settling. cause nature of the It found that *2 of house, 1947, in 1946 or the built had settled because compressible stood, character of the but soils which settling through process, although persisting the years, Bjorvatns by the Thus, had ended time the bought May, settling ended, the 1962, had and the lot of and subsoil were then stable and a state although equilibrium compressible the soil retained its findings phe- The character. court in its this characterized equilibrium nomenon of as delicate state “it was because resting upon compressible soils.” May, Bjorvatn
Between of 1963, and end Mr. fireplace, made level, the house installed new filled and repaired cracks, all and hauled fill material and built patio doing a new at the of work, rear In this he house. footings building, fireplace utilized the old for the chimney. October, In 1964, after the com- had pletely living it, restored the house and were defendant Municipality Metropolitan commonly of called Seattle — began construction of a trunk sewer Metro’s Metro— property adjoining right-of- on the north -and in a Seattle way adjoining Bjorvatns’ on the east. The trench was unu- sually running deep, depth to a maximum of 36 feet in both Bjorvatns’ prop- these areas to north of east erty.
During
filling operation,
the excavation and
the defend-
operated
heavy
moving
ants
on the sewer site
earth
digging machinery
produced
considerable vibration.
deep
found,
The court
however, that
the 36-foot
ground
trench
was below
level of the subterranean
digging
table;
water
the sewer trench caused a lower-
ing
engineers
of
increased,
table and
as the
de-
upon compressible
it,
scribe
support-
effective load
soils
ing Bjorvatns’ foundation; and that
these forces
were
proximate
Bjorvatns’
settling
cause of the
house
anew. It is
reading
from a
of
clear
this record that the trial court was
heavy
i.e.,
forces,
convinced and found that
combination
deprived the
machinery,
deep trench, which
vibration, 'and a
content,
Bjorvatns’ compressible
natural water
subsoil
sinking
Bjorvatns’
produce
founda-
all
of the
combined to
By April,
consequent
defendants
tion and the
completely
excavating
the sewer
refilled
had
finished
leaving
vicinity
Bjorvatns,
house
their
trench in
damaged
fireplace
cracked and the
in a
The
condition.
excavating
chimney pulled away
from the wall.
put
refilling
walls,
concrete foundation
also cracked the
plaster,
floors.
cracks in the
unleveled the
property by
Deeming
private
a con-
this a
compensation
public
just
demnor
use
under
without
constitution,
the court
amendment
to the state
ninth
granted plaintiffs judgment
De-
$5,000.
in the amount
fendants contend that this was not a
rightful
impeding or
use,
for the
but rather a
ob-
*3
They rely
structing of the flow of subterranean waters.
largely
450,
on
rationale of Evans v.
182
Wash.
(1935),
gravel
opening
pit
We that general by as a rule loss or inconvenience caused interfer percolating ence with the natural movement of waters proper operations of, which results lawful and uses or containing upon, injuria absque land damnum unless by liability § has been created statute. 56 Am. Jur. Waters (1947). applies 120 But it should be observed that this rule only damage under circumstances where results from no rightful appropriation per than a or more diversion of the colating waters. percolating interfere
The freedom to waters in the recently reasonable use one’s lawful and was inapplicable Ponten, sustained in but deemed State (1969). Wn.2d We there held P.2d making simply state, as condemnor, was not a landowner proper building when, use of and reasonable its land highway, disposed percolating it diverted and waters to damage nearby said: owners. We just making
If the state were another owner proper property, reasonable use of own if percolating that use occasioned diversion of water nearby property, injuria, absque would be damnum and the trial court should be affirmed. appropriating state, Ponten, as a not customary or
landowner the usual sense but rather in diverting domain, exercise eminent it for what entirely land; law would deem an artificial use nearby opinion the loss of water to landowners our property compensable amounted to a of their under the But, constitution. unlike the Ponten case, instant depended upon damage produced by not removal of lateral subjacent support, or on the state, but instead idea that the constructing freeway, wholly amade artificial use of just compensation having the land for a use without Const, § first been made—in violation of art. 16. We held imposed in Ponten since had been in the power exercise of the domain, constitutional eminent negligence rule of intrude; did and that if a property proximately to real results from the exercise of power, compensable it is under the constitution no great matter how the care exercised the condemnor. exercising right manage An owner in control, his *4 improve may land, his take lawful and reasonable action to protect flowing higher from surface waters from land and damages thereby absque the caused are deemed damnum injuria. Wilkening supra. State, But that rule has little application present to of case; circumstances Metro fighting percolating off was surface and waters and impeding upon their flow its land as was the situation in Wilkening. though plaintiffs might proved Even here have negligent producing that Metro and the contractor were in open for an keeping ditch vibration, or in excessive covering reopening it unnecessarily long period, or and in depend recovery did not times, their entitlement to several recovery right here rested upon proof. to Plaintiffs’ such proving Metro, as concepts negligence that not on of but exercising power for of eminent domain or, in condemn property, adjoining inflicted of a sewer construction damage causing physical injury, directly proximately and property improvements. plaintiffs’ and real adjoining support subjacent from of or Removal lateral digging is a property of ditch a sewer Const, damage § resulted under art. Whether process, lowering drying table, of from a out pressure, physical of and release of or a combination these physical forces, that the defendants other the fact remains making appropriation percolating were not an of waters They digging deep public their own use. were ditch for a adjoining use in that causing
doing subjacent supports so lateral removed subjacent support The removal of lateral and adjoining property in the of a for a construction municipality opinion, is, or subdivision of the state in our of for a use for the con- just compensation. demnor must make think this rule accords our statement We (1941), Muskatell Wn.2d P.2d at 235: plead appellant required prove All that was city, sewer, of the construction removed appellant’s thereby support property, the lateral caus-
ing sand, silt, or water to be forced out from under building, directly causing appellant’s to the complained building of. damages condemnor is liable caused the removal subjacent support, and it lateral immaterial support produced by drainage, has been loss whether the drawing pressures weight, lowering or off release of or long digging percolating forces, or other so as waters proximate is shown have the direct the ditch been *5 568
cause of the Muskatell, removal. this in as follows, We said at 237: general may regard perco- Whatever the rule be
lating
opinion
waters, we
are
con-
under our
provision,
brought
stitutional
for an action
for the re-
support,
moval of lateral
there is and should be no dis-
support,
whether,
tinction
sand,
the removal of the lateral
quicksand,
silt,
or water is removed from under the
adjoining property
directly causing
land of
owner,
complaint
for which
is made.
Ry.,
Accord: Farnandis v. Great Northern
Wash.
(1906).
subjacent
support
P.
The removal of lateral or
damage. Knapp
Siegley,
an actionable
v.
120 Wash.
(1922);
Bellingham
P. 13
Peters
Mines,
Coal
173 Wash.
(1933).
123,
Affirmed. J., Finley, C.
Hunter, Rosellini, Hamilton, Mc- JJ., concur. Govern, (concurring result) J. in the concur in the
Neill, —I result under the rationale of Muskatell 10 Wn.2d (1941). 221, 116P.2d 363 J., concurs J.
Weaver, Neill,