Anderson v. Rucker Bros.
| Decision Date | 10 December 1919 |
| Docket Number | 15285. |
| Citation | 186 P. 293,107 Wash. 595 |
| Court | Washington Supreme Court |
| Parties | ANDERSON v. RUCKER BROS. |
Appeal from Superior Court, Snohomish County; W. H. Pemberton Judge.
On rehearing. Judgment affirmed.
For former opinion, see 183 P. 70.
Hathaway, Beebe & Hathaway and J. Y. Kennedy, all of Everett, for appellant.
Coleman & Fogarty and W. P. Bell, all of Everett, for respondent.
Peters & Powell, of Seattle, amici curiae.
Upon rehearing en banc the court adheres to the disposition made of this case by its opinion reported in 183 P. 70. However inasmuch as there have been two amici curiae briefs filed herein since the opinion was written, and because of the importance of the questions involved, we have concluded to add something to the original opinion.
This is a case where the respondent constructed and maintained a dam for the purpose of creating a backwater pond to be used by it in its logging operations; the dam broke, and the water so confined flowed over the plaintiff's lands; and this action was brought to recover alleged damages caused thereby. From a verdict and judgment in favor of the defendant, this appeal is taken. For more of the facts involved reference is made to the former opinion.
Generally speaking, there are two chief questions involved in a case of this character. The first is, whether the dam owner must construct and maintain his dam entirely at his own peril, and as an insurer against damage, or whether he will be excused from damages caused by floods which he could not reasonably have anticipated, and if the latter be the correct doctrine, then the care required of such dam owner to anticipate freshets and flood waters; and, secondly, whether as to all floods and conditions which he is required to anticipate, he must maintain his dam at his peril and as an insurer, or will reasonable care be the measure of his duty? In our former opinion we meant to deal only with the first proposition mentioned. It was not necessary to a decision of the case that we should deal with the second proposition above mentioned, because the trial court had instructed the jury that defendant was bound to maintain his dam so that the same would withstand, 'not only the usual and ordinary freshets, but must also be sufficient to withstand such extraordinary freshets as an ordinarily prudent person would reasonably expect to occur.' In other words, the trial court instructed the jury on the theory that the dam owner would be liable, regardless of the question of care or negligence, for damage resulting from the breaking of his dam, as the...
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