116 Wash. 27 | Wash. | 1921
Lead Opinion
This is an action to recover damages caused by certain erosions, the result, it is alleged, of changes in and improvements of the Puyallup river, made by the defendants, which river, in part, forms the boundary line between the defendant counties and empties into Commencement Bay, at or near Tacoma. The complaint- alleged, and the plaintiff’s testimony tended to show, the following facts: On December 17, 1917, and for a number of years prior thereto, the Tacoma Meat Company, a corporation, owned a small tract of land bordering on the Puyallup river, near its mouth, on which land it had erected various buildings
After entering into the contract, the counties proceeded to make the improvements and in many places they straightened the stream and widened and deepened it, and placed various improvements along and upon the banks with a view of keeping the waters from eroding them. A few hundred feet immediately above the plaintiff’s property, the river, previous to its improvement, took a wide bend to the southwest, and as the waters so ran they were in the habit of hitting the northeasterly bank at a point slightly up stream from the plaintiff’s property, which act caused the waters, to be deflected in such a way that very little, if any,
When the plaintiff had rested its case, the trial court granted the defendants’ motion to take the case from the jury and enter judgment dismissing the action. Later such judgment was made and entered and the plaintiff has appealed. Since there was sufficient testimony to carry the case to the jury on the theory that respondents’ acts had caused the damages suffered by appellant,.we will henceforth speak of the damage as being caused by respondents, realizing, of course, that, at best, it was a question for the jury.
The arguments before this court have taken such a wide and varied range that it seems necessary for us
“An act authorizing counties to contract together for administrative and financial cooperation in the improvement, confinement and protection of rivers and the banks, tributaries and outlets thereof, whose waters flowing into or through such counties work damage by inundation or otherwise, authorizing the levy of taxes and the creation and disbursement of special funds for such purposes, delegating the power of eminent domain in aid of, and providing generally ways and means for the accomplishment of such purposes and the performance of such contracts.” , ,
The direct question before us is, whether a county* which straightens and otherwise improves a navigable
“The Puyallup river, at the point in controversy, is a navigable and tidal stream. The state in its sovereign right is owner of the bed and banks and body of the stream, and as such owner may make such changes in the course of the river, and may improve the same by widening or deepening or straightening a channel, or in any other manner it may see fit, and it is not liable to the owner of the shore land for any damage that may result from so doing, either directly or indirectly. It owes no duty to the shore land owner to protect him from resulting damage on account of any improvement the state may make upon its own property in the banks or bed of the stream, and the shore land owner has no right to any protection from the result of the state’s acts in dealing with the river channel and the waters flowing therein. ...”
The parties to the action have elaborately discussed the law of outlaw, or surface, waters. In our opinion, those questions are not in this case, and to undertake to discuss them would be to create confusion in a question already sufficiently difficult. The appellant is complaining only of the action of those portions of the waters which were within the bed of the stream. It is not complaining of any overflowed, outlaw or surface waters. Certainly, so long as the waters are confined to the bed and banks of the stream they cannot be outlaw waters.
But respondents contend that when they improved this river they were acting under direct legislative authority, and that what they did was for the state, and that when the state, either directly or through its appointed agents, acts for the good of the public, it cannot be made to respond for damages which may result to the private individual. They advocate the doctrine that the private ■individual, under such circumstances, must suffer for the public good. A wilderness of authorities are cited both in support of and against this proposition. It seems to us that a recurrence to certain fundamental principles may assist us in reaching a correct conclusion. One of the greatest contributions of the English speak
Since, therefore, our constitution expressly forbids the taking or damaging of private property for a pub-
“Everyone is bound so to use his own property as not to interfere with the reasonable use and enjoyment by others of their property. Por a violation of this duty the law provides a civil remedy. Besides this obligation, which every property owner is under to the owners of neighboring property, he is also bound so to use and enjoy his own as not to interfere with the general welfare of the community in which he lives. It is the enforcement of this last duty which pertains to the police power of the state so far as the exercise of that power affects private property. Whatever restraints the legislature imposes upon the use and enjoyment of property within the reason and principle of this duty, the owner must submit to, and for any inconvenience or loss which he sustains thereby, he is without remedy. It is a regulation, and not a taking, an exercise of police power, and not of eminent domain. But the moment the legislature passes beyond mere regulation, and attempts to deprive the individual of*37 his property, or of some substantial interest therein, under pretense of regulation, then the act becomes one of eminent domain, and is subject to the obligations and limitations which attend an exercise of that power.”
In the case of Askam v. King County, 9 Wash. 1, 36 Pac. 1097, speaking of police power, this court said:
“. . . while it is undoubtedly true that in extreme emergencies the rights of private parties as to property must yield to the requirements of the public, yet to authorize such interference the emergency must be such as to make the action necessary.”
The specific question, then, is: were the respondents in the exercise of the police power in making the improvements they made in the river in question? Our answer must be in the negative. The legislative act under which they made the improvement is entirely bare of any expression which would indicate that the legislature considered that public necessity demanded or required the making of the improvement. Section 1 of the Laws of 1913, ch. 54, p. 156, being the act by virtue of which these improvements were made, provides that whenever any river shall flow in part through two counties, or shall form the boundary line between them:
“. . . and the waters thereof have in the past been the cause of damage, by inundation or otherwise, to the roads, bridges or other public property situate in or to other public interests of both such counties, or the flow of such waters shall have alternated between the said counties so at one time or times such waters shall have caused damage to one county, and at another time or times to the other county, and it shall be deemed by the boards of county commissioners of both counties to be for the public interests of their respective counties that the flow of such waters be definitely confined to a particular channel, situate in whole or in part in either county. . . . ”
The act provides that the expense of making such improvement shall be raised by an annual tax on all the property in the county, which tax is to be levied and collected as any other county tax. The act nowhere intimates that the counties would be relieved from any damages that may be done to private property; on the contrary, they are authorized to exercise the power of eminent domain for the purpose of acquiring lands on which the river may be straightened. The contract between the respondents, under which the work was done, directly recognizes that the river in the past has overflown its banks and thereby damaged the roads, bridges and other private property of the two counties, and that because thereof litigation between them had arisen, and that the purpose of the contemplated improvement is to settle such pending litigation and make improbable future suits, and to avoid future damage to the roads and bridges of the two counties. It will thus be seen that this improvement was not made to preserve public health, peace, morals or welfare; it was not done to reclaim large tracts of land which otherwise might have been a waste; the idea of impelling necessity, which seems to be the chief ingredient of the police power, is entirely absent. Eespondents cite many cases which they contend support them in their argument of non-liability. "While we have carefully read all of them, we cannot here take the space to digest them, nor even cite all of them. The leading ones are: Lamb v. Reclamation Dist., 73 Cal. 125, 14 Pac. 625, 2 Am. St. 775; Cubbins v. Mississippi River Comm., 241 U. S. 351, 60 L. Ed. 1040; Bass v. State, 34 La. Ann. 494; Hughes v. United States, 230 U. S. 24; McCoy v. Board of Directors, 95 Ark. 345, 129 S. W. 1097, 29 L. R. A. (N. S.)
The decisions in some of these cases are based upon constitutional provisions which only prohibit the taking of private property without compensation, and are, therefore, at least to that extent, not in point in view of our constitutional provision. Others of the cases cited involve improvements made in aid of navigation and are not in point or material here. Others of the cited cases arise in instances where the state, or some subdivision of it, has made improvements in streams solely for the purpose of preventing them from overflowing their banks, and by such improvements reclaiming or saving to the state and its people large tracts of land, which are essential to the welfare of the public. Of this class, the case of McCoy v. Board of Directors, concerning the Arkansas river, and Gray v. Reclamation District, supra, concerning the Sacramento river, may be considered leading cases. The last cited case is particularly elaborately considered by the California supreme court. The reclamation district in that case built dikes, levees and other works purely for the purpose of confining the waters of the Sacramento river within its banks, in order to reclaim very extensive tracts of otherwise valueless lands. Because of such improvements, the plaintiff’s lands were overflown and damaged. The court applied the police power to these facts and held the district was not liable. Without approving or disapproving the conclusion of the court in that case and in others along the same line, they are easily distinguishable from the case at bar. In those cases there are elements on which the police power is rightly based, but which facts are entirely absent from the case at bar. There the controlling purpose of the improvement was to reclaim and
We are confident that any damage that may have been done by the respondents cannot be excused under any reasonable interpretation of the law of police power. While no cases exactly in point have been cited or found by us, the following are a few of a great number which, in principle, support our views: Burrows v. Grays Harbor Boom Co., 44 Wash. 630, 87 Pac. 937; Askam v. King County, supra; Ordway v. Village of Canisteo, 21 N. Y. Supp. 835; Noonan v. City of Albany, 79 N. Y. 470, 35 Am. Rep. 540; Bradbury v. Vandalia Levee and Drainage Dist., 236 Ill. 36, 86 N.E. 163, 19 L. R. A. (N. S.) 991; Barden v. Portage, 79 Wis. 126, 48 N. W. 210; Jefferson v. Hicks, 23 Okl. 684, 102 Pac. 79, 24 L. R. A. (N. S.) 214; Lewis, Eminent Domain, §§ 115, 285, 306.
In the case of Burrows v. Grays Harbor Boom Co., supra, the facts were: that the driving company had built several splash dams for the purpose of creating artificial freshets in order to assist in the driving of saw logs down the river towards market. The testimony showed that these artificial freshets caused Burrows ’ lands to be eroded. The latter by his action sought, among other things, to enjoin the creation of artificial freshets because of the damage they did to his lands. Substantially the same argument was made by the driving company in that case as is made by the respondents here. It was there contended that the
“This provision in the fundamental law (our constitutional provision with reference to taking of private property for public use) was construed by this court in Brown v. Seattle, 5 Wash. 35, 31 Pac. 313, 32 Pac. 214, 18 L. R. A. 161, and in many subsequent cases, to mean just what it said: and it can make no possible difference whether the property abuts on a street or river or whether the invader of that right is a municipality, an individual, or a boom company; the constitutional guaranty applies equally in both cases. ’ ’
Why, indeed, on general principles, should not the counties be liable if the damage to appellant is the direct result of the changing of the river channel and the currents of the stream? The counties were protecting themselves and their roads and bridges. May they do this in such a way as to injure private property without becoming liable therefor? Certainly not. They are in no better position than would be an individual who should do exactly the same thing. By the legislative authority they had a right to straighten the stream and change the currents thereof, but that legislative authority did not absolve them from liability for such damages as might directly result from such improvements.
But respondents contend that, in any event, they are not liable here because the damage to appellant was not the direct result of improvements made by them,
Briefly, we hold that if the damage in question was caused by the action of respondents in straightening the Puyallup river and thereby changing its currents, then the appellant is entitled to have its case submitted to a jury. It follows from what we have said that the trial court erred in taking the case from the jury. The
Parker, C. J., Mackintosh, Fullerton, Main, Tolman, and Mitchell, JJ., concur.
Dissenting Opinion
(dissenting)—The foregoing opinion is an exceedingly able and admirable one, but I am unable to bring myself to concur in it.
I agree with the conclusions of the trial judge quoted in the majority opinion. I am firmly of the opinion that the act under which the work was done by the counties was an act under the police power. The improvements were certainly for the public welfare. It is assuredly in the interests of public welfare to improve the stream so as to prevent flooding and destruction of county roads and bridges. If the safety of travel by the public is not the public welfare, it is difficult to conceive what would be.
It is determined that the Puyallup river is a navigable river. As such its sovereignty is in the state, the state having asserted absolute title and control of the beds, shores and banks of navigable rivers. It is determined that the work by the counties was lawfully performed, and the counties had previously obtained the necessary rights-of-way and made compensation for any damage by reason of such taking and change of the channel of the stream.
Therefore, the damage to appellant, if attributable to respondents, is consequent upon a lawful act of respondents, and is damnum absque injuria. Wiel (3d ed.), Water Rights, §248; Dillon, Municipal Corporations (4th ed.), § 995; Cooley, Constitutional Limitations, p. 300; Hill v. Newell, 86 Wash. 227, 149 Pac. 951; Morton v. Hines, 112 Wash. 612, 192 Pac. 1016. Other authorities could be cited from our own and