*1 plaintiff of the benefit of reasonable inferences her favor. A might reasonable man well that, conclude if Mr. Keck appeared years after the initial incident and had, intervening frequently time, come to the restaurant with- being out armed, a search would be unreasonable. Here, only however, there was during a 3-week interval Keck had been in Properly according restaurant once. special obliga- inferences in favor, her liability tions, short of imposed innkeepers, absolute period short of time expulsion carrying Keck’s a firearm shooting and the fatal of the decedent, and the possible lethal nature of the combination of alcohol and a firearm, would jury seem to me question to leave a on the issue of liability. defendant’s JJ., concur

Brachtenbach and Horowitz, J. Utter, with En October Banc. 1975.] 43578. [No. Respondent, Railway Company, Pacific Northern Appellant. Irrigation Sunnyside Valley District, Roger Crosby appellant. Johnson, Delbert J. W. *2 (of Gavin, Michael W. Leavitt Robert Redman and R. respondent. Mays), Robinson, & Kendrick, Redman broke, canal send- J. Defendant’s Hamilton, rushing through drainage large quantities ing of water plaintiff’s railroad tracks. culvert was culvert under plaintiff’s inadequate and railroad water, to handle away. not to Plaintiff does seek recover tracks washed were theory, or both of other rather one two on a tort but taking indemnification. theories, i.e., constitutional and/or plaintiff gave stipulated. In railroad The facts were County permit for construction of a a written to Yakima permit tracks. The con- culvert under railroad agreement tained an read indemnification as follows: party County] agrees [Yakima The second provements any im- that the pipelines, [water culverts] shall not at damage time the railroad or structures of the Com- pany, safety operations; or be its and menace to indemnify Company to loss and and save harmless the from all damage rolling tracks, roadbed, its structures, to property, injuries persons, stock and other and from to by improvements. occasioned County by Yakima and defendant, contract with In Department Interior, took over States United drainage operation of of which and maintenance operation part. and maintenance was a Such the culvert County, performed cost Yakima was to be drainage district, or the United States. causes, irri- as a result of unknown defendant’s

In damages gation resulting complained in of. broke, canal action This followed. found for defendant on both

The trial court issues. The Appeals holding by reversed, defendant bound Court of agreement. Appeals The Court of indemnification did judge question. the condemnation One reach dissented on grounds any damage that defendant was not liable for proximately the railroad tracks which was not caused operation its and maintenance of the culvert. Defendant appeal pursuant 2.06.030(e). exercised its to RCW agreement We first consider whether the indemnification permit liability the 1913 is effective create on the liability defendant sustained. Such de- pends permit on a determination that the 1913 County binding and Yakima became on defendant agreement whereby virtue of the 1961 took defendant operation system, over drainage of the maintenance also on a determination that the sustained was scope permit’s within the intended hold-harmless provision. Appeals Court of “[i]nherent of the view that undertaking assumption operation [defendant’s assign- system] implied

maintenance of the anis *3 County’s permit ment to the defendant of use Yakima to Sunnyside Irriga- Valley the culvert.” Northern Pac. v. App. tion Dist., 11 Wn. The 950, 527 P.2d 693 agreement signed by language contains defendant in 1961 no expressly assigning obligations the of authorizations permit Appeals the 1913 to reasoned, it. The Court implied assignment inescapable, however, that an permit since without the defendant was without authoriza- tion to include culvert as a the operation. assign implicit if an even there did exist

However, Appeals’ disagree the with Court conclusion ment, we agreement indemnity provision encom that the the Indemnity passes are sustained here. clauses subject construction, rules fundamental of contractual to reasonably carry out, so as to and are to be construed Any purpose. ambiguity defeat, their to be rather than against plaintiff. here, resolved Jones drafter — (1974) Co., 518, 520, , Strom 84 Wn.2d 527 P.2d Constr. language indemnity permit of the 1913 refers to by improvements.” apparent “occasioned It is from the water “improvements” refers to the permit .document by permit to built (culverts) pipelines authorized under, adequate for nor- plaintiff’s The culvert tracks. carrying seepage, waste, and runoff for i.e., flows, mal' drain designed, .It was and rainfall. from waters adequately con- in flood expected, to nor function intended large involving quanti- unusual situations ditions or other damage here. The washout of water such as caused the ties independent of the culvert. occurred roadbed only indirectly deluge to related from a resulted source clearly not culvert, the roadbed was and the washout of by hold-harmless “occasioned” provision, culvert. To extend culvert itself so far would be unreasonable. The only effectively operate it failed culvert; did not fail as to to transform itself' into a at the crucial moment. tunnel permit, ambiguity there-

Insofar as there is in the 1913 damage actually scope fore, we must limit its “occa- resulting improvements,” sioned that' is, directly cause related the culvert. argument

We next consider the advanced second plaintiff: whether the washout of roadbed constitutes uncompensated taking sec- or tion 16of our state constitution.1 except property private use, for taken for 1“Private shall not be private ways necessity, drains, flumes, or or ditches and for sanitary pur agricultural, domestic, for or the lands of others across damaged poses. private property shall be taken or No private having paid just compensation made, or use without been first owner, right-of-way appropriated into for the no court shall be any municipal compensation corporation full use other than until paid money, therefor be first into made or ascertained court *4 any owner, irrespective any improvement proposed benefit

by by corporation, compensation such shall be ascertained jury jury, waived, unless in other in be as civil cases courts prescribed by record, attempt in the manner an made law. Whenever is . private alleged property public, question to take for a to use really public contemplated judicial whether use be shall be a any question, regard legislative such, and as determined to Provided, public: taking private assertion that is use that property purposes the state for land reclamation is settlement hereby (amendment 1, decláred be for 16 to use.” Const. art. § 9). 924 many holding

Plaintiff cites cases an invasion private taking. lands constitutes an unconstitutional uniformly These permanent cases, however, almost involve recurring damage plan inherent in some of work. The major considering decisions of court dis difficult tinction taking between a constitutional 1, section 16, agree and a mere tortious interference, are ment taking that a permanent (or constitutional is a recur ring) private property. Wong invasion of Kee Jun v. Seat tle, 143 (1927); 479, 255 P. 645, 52 A.L.R. 625 Boitano County, v. Snohomish (1941); 11 664, Wn.2d 120 P.2d 490 King County, Olson v. 71 562, Wn.2d 428 P.2d 24 (1967). pointed A.L.R.3d dissenting As was out judge below:

Temporary private right, property interference awith which is likely reoccurring, continuous nor to be does not constitute compensation. condemnation without riga (Citations omitted.) Sunnyside Northern Pac. Ir supra Dist., at 956-57. tion

Damage permanent property may is if the not be re- original King County, stored its condition. See Colella v. plain- Wn.2d 433 P.2d 154 requirement. According tiff’s roadbed does not meet this stipulated replaced facts, the embankment was and the repaired. Accordingly, tracks we find no constitutional tak- ing here. proceed that failure to

Plaintiff asserts tort does not necessarily liability result in denial for a substantial private property. invasion While this assertion is valid as (see proposition Kuhr v. Seattle, abstract 15 Wn.2d ele-, (1942)), plaintiff must still P.2d 168 establish the theory, e.g., trespass. ments of another nuisance or This purport plaintiff does not to do in this action. Appeals of the Court of reversed, decision and the

case is remanded to the trial court with instructions to original judgment. reinstate its

Stafford, C.J., Finley, Wright, Brachtenbach, JJ., concur. Horowitz,

925 the (dissenting) of defendant’s a result Rosellini, —As J. irrigation and operation of an maintenance damaged plaintiff’s land was system; public uses, the both the the of break The cause $6,000. amount of the plaintiff the can- thus known, and not channel is negligent. are facts prove These was that the defendant not away plaintiff disputed. the to turn Is court then not the merely remedy, do the facts because admitted without a legal pigeonhole? precisely Because fit not into some damages “perma- were not that the court does conceive indemnity agreement which would nent”? Or because an comprehensive appear in its terms did not to be rather flooding? expressly has mention Or because “trespass”? magic In not or used the words “nuisance”2 attaching importance theory, of I fear so much to niceties paid question the court has not to the of sufficient attention justice Observing parties. mood the fastidious majority, suspect I some have found would been flaw regardless upon in the case of the doctrine it relied. (1942),

In Kuhr v. Seattle, 15 501, Wn.2d 131 P.2d 168 plaintiff’s property damaged earth from an when unimproved city upon street slid re it. encroachment being persons sulted a fill other made on the street city. city than the defendant claimed that it not improved liable for the because had it street. This merit, court found this defense to be property said when a free of owner’s be encroachment is invaded, little it what the moment

2 theory nuisance, provides: statute As for the authority Nothing express done under the which is maintained statute, can be deemed nuisance. of a RCW 7.48.160. activity An which if not authorized law would a nuisance may compensable 1, 16 of constitute section Washington Seattle, Jacobs v. P. 299 Constitution.

theory may of his brought cause action be. Whether it be theory trespass, negligence, nuisance, or violation rights guaranteed by article section constitu- important; tion is not but if, under the facts and circum- particular stances of theory case, the of the cause of *6 adapted action is sought, to the relief it is sufficient. today majority principle. has abandoned this Const, (amendment 9), § provides: 1, art. 16 private property damaged public No shall taken be just compensation having . made, . . use without been first

... requirement contains no constitution that the dam- age upon permanent. limitation If that constitutional judicially damage imposed. exists, it has been I perceive Certainly major- a rational for it. cannot basis ity plain opinion meaning offers none. The of the words person’s property is if a that, used the constitution is damaged public compensated, use, for a he shall be damage permanent temporary whether the or is in na- ture. plaintiff’s property

Here the took the overflow from a thereby damaged. and was It was system, temporarily. effect used as a albeit To my damage compensable mind that 1, section 16. permanence

I do not find that the element of has been consistently required Following in our cases. are some of types damage compensa- have been said to be provision: ble under the constitutional lowering upon Water released of a lake collected plaintiff’s (Wendel Spokane County, land v. 121, 27 Wash. (1902)); 67 P. 576 defendant constructed a culvert which upon plaintiff’s causing directed water land, érosion (Rohsnagel Ry., v. Northern Pac. 243, 69 124 Wash. P. 900 (1912)); highway construction of a caused slides which damaged (Great Ry. a railroad embankment and tracks N. (1918)); v. State, 102 348, 173 P. 40 elimination of a

927 which, damaged flooding and in a river caused erosion bend County, building plaintiff’s (Conger Pierce 27, v. 116Wash. (1921)); upon 393 debris cast 377, 198 P. 18 A.L.R. adjacent property blasting roadbuilding as a result of (Spokane, State, P. & S. v. 159 Wash. 294 P. 231 (1930)); county inadequate culvert in a road caused flooding plaintiff’s (Ulery County, Kitsap land v. (1936)); through Wash. 519, 63 P.2d 352 water diverted spring plaintiff’s (Boitano channel from a flooded land v. County, (1941)); Snohomish 11 Wn.2d 120 P.2d 490 plaintiff’s causing roadside ditches overflowed onto land, buildings crops (Harkoff v. Whatcom County, (1952)); Wn.2d 241 P.2d 932 water was (Colella King released County, onto land (1967)). Wn.2d 386,433P.2d 154

It will be seen that the in a number these repairable continuing cases was not of nature and permanent. therefore not In the last cited case it was ex- pressly recognized may that a constitutional *7 though damage permanent. involved, even the is not that, to me while It seems this and other courts have “permanent” characterizing type used the word the of damage provision, which falls within the constitutional they applied provision have nevertheless the where the damage significant emphasis was correctable. A more has upon damage been distinction the which is caused solely by negligence government body of the damage and which results from the construction, mainte- operation public facility nance and of a or installation. flooding anyone’s occurred Here, fault, inso- flowing shows. The water, far as the evidence in the direc- designed sys- it drainage to flow tion which in the damage plaintiff’s property. caused tem, inadequate extraordinary culverts were contain the flow negligence Whether that water. was the result of is a prove. matter which should not have to He only operation need show that the of the for the public damage benefit caused to his land. County, supra, Ulery Kitsap aptly v. court said In public any purpose for a use of land which inflicts that adjacent injury upon land, such as have would been action- by private taking owner, a is a if done able damage the constitution. The here na- within that ture. determining and coherent

A most relevant basis for particular compensable is whether a one which is section is that which forth in is set (1918), State, Great N. 173 P. 40 where this court said if that the state could have con- right plaintiff’s property demned the to invade the or to damage, compensable. inflict the Under the authority drainage 87.03.140, RCW plain- district could have condemned the to use the pertinent tiff’s land for overflow. The and rational test is met. indemnity agreement entered into the defendant’s

predecessor acknowledgment duty was but of a independent agreement. would have existed of the It was duty system, owner corporation, compensate adjacent property owner operation, prop- if, as result of its maintenance and erty damage. suffered entry

I would reverse the court below and order the judgment plaintiff. in favor of the JJ., concur with Rosellini, J.

Hunter Utter, *8 Distinguishing Eminent Domain Police Power Comment, 3See 607, 610 Tort, L. Rev.