Austin v. City of Bellingham

• Decision Date: 24 August 1912
• Citation: 126 P. 59,69 Wash. 677
• Court: Washington Supreme Court
• Parties: AUSTIN et al. v. CITY OF BELLINGHAM.

126 P. 59

69 Wash. 677

AUSTIN et al. v. CITY OF BELLINGHAM.

Supreme Court of Washington

August 24, 1912

Department 1. Appeal from Superior Court, Whatcom County; Ed. E. Hardin Judge.

Action by Gladys Austin and others against the City of Bellingham. Judgment for plaintiffs, and defendant appeals. Affirmed.

Dan F North, T. L. McFadden, and George Livesey, for appellant.

Neterer & Pemberton, of Bellingham, for respondents.

CHADWICK J.

Lake Whatcom is a navigable body of water with meandered border. Plaintiffs and their predecessors in interest settled upon lands bordering on the shores of the lake in 1883, and having complied with the public land laws of the United States, patent issued on June 30, 1889.

The city of Whatcom maintains a gravity water system, taking water from the lower end of Lake Whatcom at a point just above its outlet. In order to maintain a proper pressure during the summer months, and to maintain a greater degree of purity, the city, in April, 1911, put in a mudsill across the creek bottom and on it put a board dam, the object of which was to raise the waters of the lake. This action was brought by plaintiffs to restrain the city from longer obstructing the free flow of the waters of the lake, alleging that the dam had so raised the waters as to overflow, or, to speak more accurately, back the waters into and over the low, flat land owned by plaintiffs, and thus render it incapable of improvement and cultivation. From a decree in favor of the plaintiffs, the city has appealed.

The record is long and involved, and appellant has briefed its case upon the theory of fact maintained by it throughout the trial; but, inasmuch as the trial judge announced his purpose to view the situation for himself, we are inclined to hold with him that the putting in and maintaining of the dam raised the waters of the lake about 18 inches above the line of ordinary high water, or enough to seriously interfere with the use and enjoyment of respondents' land.

Appellant contends that owners of land abutting a navigable lake have no right below the line of high-water mark, or, to put it the other way, the appellant can, without adverse legal consequence, raise the water to the line of high-water mark.

The cases following Eisenbach v. Hatfield, 2 Wash. 236, 26 P. 539, 12 L. R. A. 632, are relied on. These cases are determinative only as we find them to fit the facts of a particular case. In the instant case there is testimony to the effect that there have been times when the waters of the lake were as high or higher than they were after appellant had installed its dam, and that the grass on plaintiffs' land is largely sedge or swamp grass. But it is also shown that these raises occur only in what may be called flood seasons, following the unusual rains and storms of winter; that, prior to the installation of the dam, lands that are now flooded or saturated had, during the summer months, been cultivated or pastured; that the uncleared portions thereof were covered with tame grass and by a tree growth and stumps, indicating that the land was not swamp or marsh land. It will be seen, therefore, that the cases relied on can support appellant only in the event that we find the lands were flooded at ordinary high water.

While it is true, as we have held many times, that a littoral or riparian owner can assert no valuable rights below the line of ordinary high water, we have not held in any case that the owner of tide and shore lands can so use his property as to injure or destroy the use of abutting property, without meeting the consequential damages. This may be well illustrated by reference to our boom cases. See Grays Harbor Boom Co. v. Lownsdale, 54 Wash. 83, 102 P. 1041, 104 P. 267, and cases there cited. There, as here, the user of the tide or shore lands was claiming under the express or implied license of the state. In the case of Burrows v. Grays Harbor Boom Co., 44 Wash. 630, 87 P. 937, it is said that, 'in the interest of appellants' business, the respondents' lands are overflowed by back water.' It was there contended that there could be no consequential damages; but this court held otherwise, saying that the user of the stream was answerable, where there had been an 'actual, permanent taking and permanent use made of respondents' land.' And the damages for overflowing the adjacent lands of the upland owner were afterwards assessed.

We mark a difference between a damaging of the shore line, or more strictly speaking, the destruction of a boundary line, and a damage which is in the nature of a continuing trespass to the abutting lands. The one may be met by an action in damages. The other can be corrected only by resort to a court of equity. The cases cited by appellant go no further than to hold that under our assertion of title to the tide and shore lands of the state an upland owner has no littoral or riparian rights.

The city has acted under section 8005, Rem. & Bal. Code: 'And for all the purposes of erecting such aqueducts, pipe lines dams or waterworks or other necessary structures in storing and retaining water, as above provided, or for any of the purposes provided for by this chapter, such city or town shall have the right to occupy and use the beds and shores up to the high-water mark of any such water course or lake, and to acquire the right by purchase, or by condemnation and purchase, or otherwise, to any water, water rights, easements or privileges named in this chapter, or necessary for any of said purposes, and any such city or town shall have the right to acquire by purchase or by condemnation and purchase any lands,...