120 P.2d 490 | Wash. | 1941
The facts as found by the trial court, in so far as they are material here, as as follows: Appellants own an undivided three-quarters interest in approximately eighteen acres of garden land in Snohomish county. They also hold the remaining undivided one-quarter interest in the land under a lease from Alice Cummings, who was made a party defendant to the action for the reason that she refused to join as plaintiff. She is not, however, a party to this appeal.
The land lies several feet below, and just west of, a paved public highway. Bordering the highway on the east is a tract of land which the county acquired by purchase about twenty-five years ago, for use as a gravel pit. That land, in its original state, lay upon a hillside from which the county proceeded to excavate gravel to be used in the construction and maintenance of public highways. In that operation, the county laid out no particular plan, but, as it proceeded with the work, excavated the earth down to an approximate level with the highway.
Some seepage and drainage from the hillside had always found its way onto appellants' land, and, as the excavation was carried forward, numerous small springs were uncovered and opened, but neither the seepage nor the overflow from these springs was of sufficient volume to injure adjacent property, except possibly during certain winter months or after a heavy rainfall.
On or about October 15, 1939, the county, while engaged in excavating gravel for the purposes heretofore mentioned, uncovered and opened a large spring on its premises, at a point about one hundred fifty yards *666 east of the highway. The flow of water from this spring was directed by the county into an artificial channel dug by it, leading from the source of the flow westward to the public highway, and then underneath the highway, through a culvert, onto a corner of appellants' land. From that point, the water flowed onto adjoining property, whence, by seepage and flow, it was precipitated in large quantities onto other parts of appellants' premises, with the result that the water covered about two and one-half acres of appellants' land, rendering it wholly unfit for gardening purposes, to which it had formerly been devoted. Other portions of appellants' land were also injured through seepage from the acreage primarily affected. From October, 1939, to the time of the trial below, the water continued to flow and seep in the manner just described. The trial court found that appellants had suffered damages in the amount of twelve hundred fifty dollars.
The county has never instituted any condemnation proceeding in connection with either the acquisition or the operation of its gravel pit, nor has it paid any compensation to appellants for the damages inflicted upon them. On the other hand, appellants did not at any time prior to the commencement of this action present or file any claim for damages in compliance with Rem. Rev. Stat., § 4077 [P.C. § 1664a], which provides that all claims for damages against a county must be presented to the county commissioners and filed with the clerk within sixty days after the time when such claim for damages accrued, and that all such written claims must locate and describe the defect which caused the injury, must specify the amount of damages claimed, and must state the actual residence of the claimant at the time of presenting and filing the claim and for a period of six months immediately prior *667 to the time such claim for damages accrued. The uncovering of the large spring on the county's property, although due to the act of the county, was not due to any negligence in its operation of the gravel pit.
From these facts, the court concluded that appellants were not entitled to recover from the county. That conclusion was based upon the fact that appellants had not filed a claim in accordance with the statute just cited.
The sole question with which we are here concerned is whether or not the precipitation of water upon appellants' land, in the manner and under the circumstances above described, constitutes a taking or damaging of private property within the meaning of Art. I, § 16, of the Washington constitution which reads, in part, as follows:
"No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, . . ."
[1] Appellants' right to recover for the damages sustained by them depends wholly upon the answer to the question just stated. If the acts of the county constituted a taking or damaging in the constitutional sense, then the filing of a claim in accordance with Rem. Rev. Stat., § 4077, was not a prerequisite to the maintenance of the action, and appellants are entitled to a judgment in the amount of their damages as found by the court.Kincaid v. Seattle,
[2] The use of land for a gravel pit by a county of this state is undoubtedly a public use, for, by Rem. Rev. Stat., Vol. 7A, § 6450-9 [P.C. § 2697-422] (Laws of 1937, chapter 187, p. 738, § 9),
"Whenever it is necessary to secure any lands . . . for any borrow pit, gravel pit, quarry or other land for the extraction of material for county road purposes or right of way for access thereto, the board of county commissioners is authorized to acquire such lands on behalf of the county by gift, purchase or condemnation. . . ."
Accord, Armstrong v. Seattle,
[3] The taking or damaging of property to the extent that it is reasonably necessary to the maintenance and operation of other property devoted to a public use is, likewise, a taking or damaging for a public use. In Decker v. State,
"Now, it is recognized by all the courts that the taking of property by the state for hospitals and alms-houses is a public use. I Lewis Eminent Domain (3rd ed.), § 270; United States v.Fox.
In Ulery v. Kitsap County,
"Under Art. I, § 16, Washington constitution, it is a condition precedent to the exercise of the power of eminent domain by a county of this state that compensation therefor shall first be made.
"The construction of highways by a county is lawful; but a county has no right to construct a highway *670 to the damage of a private citizen of the county, and any use ofland for a public purpose which inflicts an injury upon adjacentland, such as would have been actionable by a private owner, is ataking and damaging within the constitution, and the fact that it was not condemned in advance does not absolve it from liability where no negligence is charged in the performance of a governmental duty. [Citing cases]
"The law is well established here that one may not, by artificial means, convey surface and outlaw waters from his land and deposit them on the land of others to their damage. [Citing cases] The construction of Lateral Highway No. 2, although without negligence, brought more water upon respondents' land." (Italics ours.)
The italicized portion of the opinion from which we have just quoted is taken, with some slight modification, from GreatNorthern R. Co. v. State,
"It is contended by the state that a suit against it to recover for damages will not lie, and that the damage herein involved isnot for a public use within the meaning of the constitutionalprovision requiring compensation. We cannot accede to this contention; for if the *671
state could have condemned the right to inflict the necessary damage or invade plaintiff's property, its failure to so condemn is not an excuse to deny plaintiff's recovery. Kincaid v.Seattle, supra [
[4] In the case at bar, the county was engaged in operating a gravel pit for public use. In that operation it encountered and uncovered a large spring, and in order to rid its premises of the water from this spring it constructed a channel and through it precipitated the water upon appellants' land, thus effecting a direct and permanent invasion of appellants' premises and inflicting upon them a lasting damage of substantial proportions. The construction of the channel and the disposition of the water constituted, in our opinion, a necessary part of the county's operation of its gravel pit, for the inference is irresistible that the water would otherwise have accumulated there and thus would have interfered with the operation of the pit. In using appellants' land for the disposal of the water from its own premises, the county was devoting that land to a public use incidental to its operation of the gravel pit in order to obtain material necessary for the construction and maintenance of its highways. In proceeding as it did, the county was not acting tortiously, or in a negligent manner, but was exercising its power of eminent domain, even though it did not take legal steps to condemn the land before damaging it for a public use. Having exercised the sovereign power of eminent domain, it cannot now escape paying compensation, for "no man shall give unwillingly unless he is paid in money for that which is taken from him."Kincaid v. Seattle, supra.
"In our opinion, the theory that property rights are ever to be sacrificed to public convenience or necessity *672 without just compensation is fraught with danger, and should find no lodgment in American jurisprudence." Great Northern R. Co. v.State, supra.
Respondent endeavors to draw a distinction between damages resulting from construction work involved in the acquisition or improvement of property for public use and damages resulting from the operation of such property after its acquisition, construction, or improvement. It is true that most of our cases upon this subject come within the first category, but the distinction sought to be drawn by respondent does not affect the principle underlying the constitutional provision here involved. In any event, we have a number of cases, coming clearly within the second category, wherein the rule that compensation must be paid was applied just as in the first class of cases. In fact, the Decker case, supra, is one of the latter character, for, as already shown, the damage inflicted upon the plaintiff therein was the result of the taking of property reasonably necessary to the proper maintenance of other property already devoted to a public use.
In Jacobs v. Seattle,
In Southworth v. Seattle,
The most recent case on the subject is that of Snavely v.Goldendale, supra, in which the facts presented a strong analogy to those in the case at bar. In that case, we upheld the right of property owners to maintain an action against a city, under the constitutional provision here in question, to recover damages for injury to their property resulting from the discharge by the city of raw sewage from its sewage disposal plant into a stream flowing past the plaintiffs' premises.
Upon the authority of these latter decisions, we hold that the constitutional provision applies to damages resulting from the operation of the gravel pit, such operation including, as already decided, the acts of constructing the channel and conveying the water through it to appellants' premises.
Respondent's principal contention is that appellants' damages are merely consequential or resultant damages, for the reason that the flooding of their land was not an indispensable and intentional part of any improvement project carried out according to a plan which necessarily anticipated such flooding or contemplated that it should be done. The contention is rested wholly upon the case of Jorguson v. Seattle,
One of the main questions in that case was whether the filing of a claim was necessary to the maintenance of an action for damages resulting from the prosecution of a public work where there had been an antecedent condemnation of land, the taking or damaging of which was contemplated by the plan of improvement, but where the specific injury complained of was not contemplated as a part of that plan. This court answered that question in the affirmative, and in doing so distinguished the case before it from three preceding cases, including the Kincaid case,supra, on the ground that in each of those three cases the taking or damaging was an indispensable and intentional part of the improvement, necessarily anticipated by the plan, and intended in the performance, of the work, and on the further ground that in none of those prior cases had there been any antecedent condemnation for the right to take or damage. In its discussion of the question the court further said, with reference to the constitutional provision:
"This provision has sole reference to such taking or damaging as is contemplated in the exercise of the power of eminent domain. It is a mere limitation upon the otherwise unlimited sovereign power to take or damage private property for public use."
and, further,
"The above mentioned provision of the constitution was never intended to apply to consequential or resultant damages not anticipated in, nor a part of, the *675 plan of a public work. It was never intended to apply to damages resulting to private property from the negligent or wrongful use of public property. As to such damages, tortious in their very inception, the injured person is remitted to his remedy on the case, as in other cases of tortious taking or injury."
and, still further,
"As pointed out in the Kincaid case [supra] and theCasassa case [Casassa v. Seattle,
Respondent bases its argument upon the language above successively quoted.
Just how far the Jorguson case is still authoritative is a debatable question. In Hamm v. Seattle,
"We may accept the holding of the Jorguson case to the effect that the constitutional provision has sole reference to such taking or damaging as is contemplated in the exercise of the power of eminent domain and is a mere limitation upon the otherwise unlimited sovereign power to take or damage private property for a public use; and yet it must follow that, whenever property is thus taken, voluntarily or involuntarily, by thesovereign state or by those to whom it has delegated thissovereign power, the courts must look only to the taking, and notto the manner in which the taking was consummated. A mere temporary interference with a private property right in the progress of the work, especially such as might have been avoided by due care, would probably be tortious only. Improper blasting, causing debris to be cast upon the adjacent property, would seem to be tortious and not a taking *676 or damaging under the constitution, but the removal of lateral support, causing slides or any permanent invasion of private property, must be held to come within the constitutional inhibition." (Italics ours.)
The opinion in the Wong Kee Jun case then concludes with a statement to the effect that the Casassa and Jorguson cases are overruled in so far as they are out of harmony with the rules announced in the overruling opinion.
Reverting to what was said in the Jorguson case, we note that in that case there had been a "plan" laid out by the city for the regrade of certain streets, as there usually is in such situations; we note further, with respect to that case, that there had been a prior condemnation for the taking or damaging of property necessary to the execution of that plan. The court therefore held that, where the taking or damaging was wholly outside of the work contemplated by the plan and not a necessary incident to the making of the public improvement, such taking or damaging was nothing more than a negligent or wrongful use of public property, tortious in its nature, for which relief should have been sought by an action on the case rather than by a proceeding under the constitutional provision involved here.
In the case at bar, there has never been any "formal plan" for the improvement of the gravel pit, and, in the very nature of the adventure, there was no occasion for any such plan. Consequently, in this case, there is no point in discussing any fancied deviation from a non-existent plan, or in considering the wrong done as being wholly outside such plan. Furthermore, in the case at bar, there was never any condemnation proceeding for the determination of the compensation to be paid for the taking or damaging of appellants' property. Even if it be assumed that theJorguson case *677 still has any authoritative force, the case at bar, so far from coming within any principle of that case, comes, rather, within the principle of those cases where private property has been damaged through the maintenance or operation of property devoted to a public use. It is indeed, in our opinion, a perfect illustration of the rule of the Wong Kee Jun case set forth above, to the effect that whenever, in the exercise of the power of eminent domain, private property is taken, voluntarily or involuntarily, by the sovereign state or by those to whom the state has delegated the sovereign power of eminent domain, and the taking or damaging is in consequence of a permanent invasion of private property, the owner is entitled to compensation under Art. I, § 16, of our state constitution.
The judgment is reversed, with direction to the trial court to enter judgment for appellants against Snohomish county in the sum of twelve hundred fifty dollars, together with interest thereon at the rate of six per cent per annum from October 15, 1939, and for their costs.
ROBINSON, C.J., MAIN, MILLARD, and DRIVER, JJ., concur. *678