Bales v. City of Tacoma

• Decision Date: 11 April 1933
• Docket Number: 24340.
• Citation: 20 P.2d 860,172 Wash. 494
• Parties: BALES v. CITY OF TACOMA.
• Court: Washington Supreme Court

20 P.2d 860

172 Wash. 494

BALES v. CITY OF TACOMA.

No. 24340.

Supreme Court of Washington

April 11, 1933

Department 2.

Appeal from Superior Court, Pierce County; F. G. Remann, Judge.

Action by D. H. Bales against the City of Tacoma, a municipal corporation. Judgment for plaintiff, and defendant appeals.

Affirmed.

W. W Mount, John E. Gallagher, and Bartlett Rummell, all of Tacoma, for appellant.

Howard Carothers and Hugo Metzler, both of Tacoma, for respondent.

STEINERT Justice.

The plaintiff, the operator of a fish hatchery located about a quarter of a mile south of the city limits of Tacoma, brought this action against the city to recover damages for the loss of fish through alleged contamination of the waters of a stream feeding his hatchery, and to enjoin the continuation of the alleged nuisance causing the contamination. Issues having been joined, the case was tried Before the court, sitting without a jury, resulting in a judgment for damages and a decree awarding plaintiff injunctive relief. The city has appealed.

Relieved of the detail disclosed by the evidence, a general statement of the case is as follows: Seven or eight blocks west of Union avenue, the principal street in South Tacoma, there is a large swamp extending in a northerly and southerly direction from South Fortieth street to about South Seventy-Fourth street. The swamp is approximately two miles long and covers an area of from one hundred and twenty to one hundred and fifty acres. The depth of its waters varies throughout its length. South of South Fifty-Sixth street it is a morass and its waters, wherever appearing, are shallow north of South Fifty-Sixth street it attains a greater depth and resembles a lake. Though the ground between South Fifty-Sixth and South Sixty-Sixth streets is marshy, there is, nevertheless, a constant flow of water through a well-defined channel. The swamp, with its many subterranean springs, drains into and forms what is known as Flett creek which originates as a distinct stream somewhere near South Sixty-Sixth street and flows southerly through respondent's property, thence in a southwesterly direction until it empties into Chambers creek, which, in turn, flows into Puget Sound. Throughout its course, Flett creek is fed by many springs. At a point a few hundred feet north of respondent's property its volume is increased about one-third by one of these springs. The stream, Before it reaches respondent's property, is about eight feet in width and two in depth and has a slow and sluggish current.

Three streets extend east and west across the swamp, South Fifty-Sixth and South Sixty-Sixth, both of which have been filled in, and, at the lower end of the swamp, South Seventy-Fourth street. Culverts permit the water to flow underneath the filled streets.

In the year 1906 or 1907 the city of Tacoma installed a twenty-four inch sanitary sewer in the South Tacoma district. This sewer extends, in part, west along South Fifty-Sixth street from Union avenue towards the swamp, then turns north within a block from the swamp, and finally finds its outlet in Puget Sound. As the South Tacoma district grew and developed, the burden upon the sanitary sewer likewise grew, yet the size of it was never increased by the city, and it is now the only sanitary sewer serving the district.

Some years after the installation of the sanitary sewer, the city of Tacoma, in order to accommodate the disposal of surface waters, installed a storm sewer system for the South Tacoma district. The storm sewer, which has a diameter of thirty inches, parallels the sanitary sewer along South Fifty-Sixth street and has its outlet in the swamp at a point within a few feet from the culvert underneath that street. Of recent years the twenty-four inch sanitary sewer has been incapable at times of handling all the sewage from the added connections made necessary by the growth and development of the district.

In order to relieve the congested sewage condition, the city, from time to time, made what is termed 'cut-overs' from the sanitary sewer to the storm sewer. At South Fifty-Sixth street a direct connection between the two sewer systems was made, thereby permitting the excess of sewage to pass from the sanitary sewer into the storm sewer and enter into the waters which formed the source of Flett creek. During certain seasons of the year these cut-overs were kept plugged; at other times, they were not. As a consequence, the sewage, of the character to be found in a populous community, was periodically diverted from its normal course and was discharged into the swamp at South Fifty-Sixth street and thence into Flett creek.

From about 1916 or 1918, garbage had been customarily deposited in the swamp north of South Fifty-Sixth street, under the care and direction of the city of Tacoma. In 1930 the city seems to have taken over the matter of garbage disposal as a business, establishing a dump on the west side of the water flow of the swamp north of South Fifty-Sixth street. The garbage, which was of the type generally collected in a large city, contained refuse from hotels, restaurants, and homes, matter that underwent the usual changes of decay and putrefaction. As the garbage was dumped into the swamp, the city mixed it with dirt and gravel so as to make the fill solid.

For many years the respondent Bales has owned and operated a restaurant in Tacoma. In 1914 he bought a seventeen-acre ranch about a quarter of a mile south of the city limits. Flett creek runs through this property. Conceiving the idea of raising and cultivating a supply of game fish for his restaurant, respondent, in 1928, decided to build a fish hatchery. In that year he excavated two dirt pools that were fed by springs located on his property, and stocked the pools with eastern brook trout. These trout he successfully raised to maturity. In the early part of 1930, under the direction and supervision of an experienced fish culturist, respondent built and equipped a complete hatchery, investing therein about $5,000. The permanent equipment consisted of five cement pools and a hatchery building covering seven cement troughs. The pools were sixteen feet in diameter and three and one-half feet in depth. The total lineage of the troughs was one hundred and sixteen feet. A twelve-foot water wheel lifted the water from Flett creek into the hatchery and pools. As the water was lifted and poured from the wheel, it was, to a certain extent, aerated. After obtaining a Washington hatchery license, respondent purchased ten thousand fingerlings from Pierce county in August, 1929. This was some time Before the hatchery was completed. These fish were placed in Flett creek in wire containers to prevent their escape. About one thousand of these fish died shortly after their delivery. The cause of their death was not determined and is not material here. After the hatchery was completed, respondent purchased one hundred and three thousand black spotted Montana trout eggs. These eggs were placed in the troughs within the hatchery and, somewhere near July 4, 1930, completed a hatch of about one hundred thousand fry, which is considered a good hatch for that number of eggs. The planting and hatching of the eggs, the feeding and care of the fish, and the general operation and conduct of the hatchery were done under the direct supervision and inspection of Mr. Henry Baldridge, the fish culturist who had supervised the construction of the hatchery.

In addition to the initial loss of one thousand of the fingerlings originally purchased from Pierce county, a very heavy loss of fish occurred in April or May of 1930, while they were still being kept in Flett creek. The cause of the loss, however, was then unknown either to respondent or to Mr. Baldridge. The remaining nine thousand fingerlings were transferred to the concrete pools and thereupon showed some improvement. The fish that had been placed in the concrete pools, and those that were confined in the dirt pools, were both fed with the same kind of food, namely, ground horse meat. Late in July, 1930, the small fish that had been hatched in the troughs began to die, and in August the 'kill,' as it is termed, became enormous; the fish dying by the thousands. These fish had been fed ground liver, which is the standard feed for fish of their size and age. At the same time the larger fish in the cement pools also began to die in large numbers. Mr. Baldridge had the latter fish transferred back into the wire containers in Flett creek. The mortality immediately increased. In an effort to save what was left, the fish were then transferred over into the dirt pools, which were fed entirely by spring water. Those that were not too far gone revived and were raised to maturity. All of the other fish, however, those purchased as well as those hatched, died, except a few that had been placed in pools into which spring water had been pumped.

Suspecting that the fish had in some way been poisoned, respondent and Mr. Baldridge made a close investigation and inspection to determine the cause. The creek was followed to its source. At South Fifty-Sixth street they found a mass of sewage emptying out of the storm sewer into the waters of the swamp as it flowed through the culvert underneath that street. A chemical analysis of a sample of water taken from Flett creek, at or near respondent's premises, was then made and it was found to be...