117 Wash. 255 | Wash. | 1921
Lead Opinion
Main, J.
The plaintiffs brought this action to restrain the defendants, as commissioners of King county, from proceeding with the organization of a drainage district, the plans of which contemplated an open ditch in the highway upon which the property of the plaintiffs abutted. The trial court sustained the right to injunctive relief upon the ground that the
“That drainage ditches of any drainage improvement district heretofore or hereafter created, may be constructed and maintained along any public highway, street, alley or road within the limits of any drainage district.”
The legislature, by that act, gives the right, so far as it had the power, to construct longitudinal ditches. The real question in the case is whether such a ditch as is here contemplated, when it is constructed, would be an additional burden or servitude upon the fee which, under the holdings of this court, is in the abutting property owner which is subject to an easement in the public. Schwede v. Hemrich Bros. Brewing Co., 29 Wash. 21, 69 Pac. 362; Gifford v. Horton, 54 Wash. 595, 103 Pac. 988.
The ditch which the appellants proposed to construct was approximately nine miles in length, open and unguarded, with an average width of ten feet and an average depth of five feet. Approximately five miles of the ditch, as contemplated by the specifications, would be constructed longitudinally in roads and streets upon which the property of the respondents abutted. Under the constitution, art. 1, § 16, private property cannot be taken or damaged for public or private use without just compensation having been
“Suburban roads may be used for public drainage purposes, that is, for draining other public ways. Whether they could be used without additional compensation to the owner of the fee for the purpose of constructing drains for reclaiming private property is a question of no little difficulty, even if such drains are a public benefit. We are inclined to the opinion that such a use cannot be made of them without compensation, for the only purpose for which they were set apart is that of a highway for travel, while the whole interest and profit in' the land remains in the owner of the fee, subject only to easement of the public. The use of a way for the purpose of constructing drains, for other than' legitimate highway purposes,cannot, as we believe, be justly considered as included in the public use to which the suburban way was set apart.”
In Moore v. Gar Creek Drainage District, 266 Ill. 399, 107 N. E. 642, the commissioner of highways was proposing to permit a drainage district to excavate a ditch and lay tile in a highway to drain lands not within. the highway but which were in private ownership. The abutting property owner .objected, claiming, among other, things, that such a drain would constitute an additional burden upon his fee. Upon this question the supreme court of Illinois .there said:
*258 “The laying of this tile in the public highway was an additional burden and servitude upon the fee. That the primary purpose of the improvement was not to benefit the highway but the adjoining lands is abundantly shown from the fact that benefits were assessed against the land of appellant for this improvement in the sum of $1,626.26.”
In the City of Houston v. Kleinecke, 26 S. W. (Tex. Civ. App.) 250, the city constructed a canal or ditch in a street for the purpose of drainage, which, in effect, destroyed the street and deprived the abutting owners of access to their property. It was there held that such owners were entitled to damages because “the right to such compensation is secured by the constitution and cannot be taken away by the legislature.”
Applying the doctrine of the authorities cited to the facts in the present case, it seems reasonably plain that the ditch proposed to be constructed would constitute an additional burden. It would carve out of the highway a zone of practically ten feet in width and cause that .much of the highway to be devoted, not to the purposes for which it was created, but for the purpose of draining private property. It would seriously impede the ingress and egress of the abutting property owners. Under these facts it would hardly be doubted that the ditch would constitute an additional burden, and since it was not to be constructed for a street or highway purpose, the respondents had a right to prevent its construction until the damages which they would sustain. thereby had been ascertained as required by the constitution. The appellants’ authorities and argument on this point proceed on the theory that the principles applicable to drains and sewers are similar, and that, therefore, since it is the rule that sewers constructed in streets or alleys do not constitute an additional burden, it follows that an
The judgment will be affirmed.
Parker, C. J., Tolman, Mackintosh, and Mitchell, JJ., concur.
Rehearing
On Rehearing.
[En Banc. January 24, 1922.]
In a petition for rehearing in this case, we are requested to modify the judgment wherein it enjoins the commissioners from taking further steps looking to the organization of the drainage district under the plans adopted for the construction thereof. The modification is not necessary. The trial court restrained the comjnissioners on the theory that the statute as it then was permitted only cross ditches and did not permit longitudinal ditches in the highway. After the entry of the judgment, and prior to the time the cause was heard here on appeal, the legislature passed an act which permitted the construction of
The petition for rehearing will be denied.