27 Wash. 121 | Wash. | 1902
The opinion of the court was delivered by
This is an action for damages caused by draining the waters of a lake in Spokane county onto the lands of the plaintiffs, done by order of the board of county commissioners in constructing a road across said lake. The complaint alleges, in substance, that plaintiff Prank Wendel had entered' the lands as a homestead under the homestead laws of the United States, and that he and his wife have ever since lived on said lands and cultivated them under the said homestead laws, but have not yet made final proof; that the board of county commissioners of Spokane county ordered a county road to be surveyed, laid out, established, and built, a portion of the road running through Turnbull Lake; that they took a portion of the bed of said lake .for the purpose of building the road, disregarded the surveyor’s recommendation that a bridge be built over said lake, and ordered a canal or ditch to be cut out of said lake between the said roadbed and the plaintiffs’ land; that the ditch was for the purpose of draining a portion of the said lake so that the road might be built thereon; that the said canal or ditch was constructed and finished by defendant, and was cut through a natural ridge of land which had theretofore protected plaintiffs’ land from the overflow of said lake; that it was cut in order to give an outlet for the water on said roadbed for the purpose of avoiding the necessity of maintaining a bridge; that the road was laid out, established, built, and constructed by Spokane county, and
It is claimed by the respondent that there was not sufficient allegation of ownership in the land to maintain this action. We think, however, that the allegations set forth in the complaint above noted were sufficient. Yakima County v. Tullar, 3 Wash. T. 393 (17 Pac. 885) ; Pierce v. Frace, 2 Wash. 81 (26 Pac. 192, 807).
The main contention, however, is that the act complained of was beyond the legal power of the county, and therefore ultra vires; or, reduced to logical statement, that the county had no right to commit the act which caused the damage, and is therefore not responsible. A great many of the cases cited by respondent are to the effect that the county cannot do an unlawful act, and that, if such act is done by an officer of a municipal corporation, the corporation is not liable in any event. These cases are not in point in this state, where the opposite doctrine has been uniformly held. Kirtley v. Spokane County, 20 Wash. 111 (54 Pac. 936) ; Einseidler v. Whitman County, 22 Wash. 388 (60 Pac. 1122) ; Commercial Electric, etc., Co. v. Tacoma, 20 Wash. 288 (55 Pac. 219, 72 Am. St. Rep. 103).
In discussing the liability of municipal corporations for acts committed by their officers which are defended on
Respondent says that this damage, if any was caused, was caused over seven miles from the roadbed. It makes no difference whether the damages were sustained seven miles or seven feet from the roadbed. It might be a little more difficult to prove that the action of the county at that distance was the proximate cause of the injury, but that is a question which will be submitted to the discretion of the jury. The contention of the respondent that the county cannot be held responsible for injuries occurring off of or beyond the roadbed resulting from the building of the road cannot be sustained by either reason
“It is said that the acts done are not the acts of the city, but of its officers or agents wlm undertook to do them in its name. This would he a pleasant farce to be enacted by irresponsible parties, who give no bond, who have no property to respond to civil or criminal suits, who make no profit out of it, while the city grows rich in the performance.”
The circumstances in the case cited -were different from those in this case, but the principle involved in relation to the liability of the corporation is exactly the same.
It is insisted that there is no allegation of carelessness or negligence in the complaint. Ho such allegation is necessary. If the allegations of the complaint are true, it is the taking of private property for public use without compensation, and falls within the prohibition of the constitution (art. 1, § 16) so often construed by this court. Anri it makes no difference whether it was done negligently or carefully. The taking is what the constitution prohibits. Brown v. Seattle, 5 Wash. 35 (31 Pac. 313, 32 Pac. 214, 18 L. R. A. 161); State ex rel. Smith v. Superior Court of King County, 26 Wash. 278 (66 Pac. 385).
. In any view of the case the county has ratified the action, whoever may have been originally responsible for it. Commercial Electric, etc., Co. v. Tacoma, supra.
Some other minor objections to the complaint are raised, which, we think, are not meritorious. The complaint stating a cause of action against the county, the judgment will be reversed, with instructions to the lower court to overrule the demurrer.
Reavis, C. J., and Anders, Mount, White, Fullerton and Hadley, JJ., concur.