Bilger v. State

• Decision Date: 07 June 1911
• Citation: 116 P. 19,63 Wash. 457
• Parties: BILGER et al. v. STATE et al.
• Court: Washington Supreme Court

116 P. 19

63 Wash. 457

BILGER et al. v. STATE et al.

Supreme Court of Washington, En Banc.

June 7, 1911

Appeal from Superior Court, Thurston County; John R. Mitchell Judge.

Action by William L. Bilger and others against the State of Washington and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

Courts of equity will not inquire into the action of state officers accused of misappropriating public funds on the complaint of a citizen and taxpayer, as the Attorney General of the state is the proper person to institute suits where there has been a wrongful disposition of the public revenue.

W. P Bell, W. V. Tanner, John F. Murphy, Harold Preston, Roger S Greene, H. A. P. Myers, and George F. Vanderveer, for appellants.

Thomas A. Meade and P. C. Sullivan, for respondents.

FULLERTON J.

The respondents, who own real property bordering on the shores of Lake Washington in King county, brought this action to enjoin the construction of a public improvement, known as the Lake Washington Canal, averring that the construction thereof according to the plans adopted will damage their property, and that no provision has been made for paying such damages.

To an understanding of the questions involved, a somewhat extended statement of the facts is necessary. Lake Washington, on the shores of which the respondents' property is situated, is a body of fresh water ranging in width from 2 to 4 1/2 miles, having a length of some 25 miles. Its banks below the surface of the water for the greater part descend abruptly to the mean depth of the lake, which is about 200 feet. The normal surface level of the water of the lake is some 31.5 feet above mean lower low water in Puget Sound. Lying immediately west of Lake Washington is Lake Union, a body of fresh water having an area of about 900 acres, with an average depth of perhaps 40 feet, and a mean level above mean lower low water in Puget Sound of some 22.5 feet. Still further west is Salmon Bay, which is connected directly through Shilshole Bay with Puget Sound, and is affected with the ebb and flow of the tide. The canal, when constructed, will connect Lake Washington with Puget Sound, passing through Lake Union, Salmon Bay, and Shilshole Bay. According to the plans adopted, it is intended to raise Salmon Bay to a level with Lake Union by a lock and dam constructed across the narrows thereof, and to lower Lake Washington to a level with that lake by means of an open canal connecting the two lakes.

The government of the United States interested itself in the enterprise for the first time in 1890, when Congress made an appropriation for a survey of the route of the proposed canal. Since that time numerous appropriations have been made looking towards the completion of the enterprise aggregating more than $550,000, and the Secretary of War has been authorized to enter into a contract for the construction of locks and other accessory works at the narrows in Salmon Bay at a cost not to exceed $2,275,000. One of the earlier appropriations was made contingent on the fact that he entire right of way for the canal be secured to the United States free of cost and free from all liability for damages arising by the construction of the canal. Later on the government took the position that the property specially benefited by the construction of the canal should bear its just proportion of the cost of the same, and the act making the last appropriation, if not one other, contained a proviso to the effect that the Secretary of War before beginning the work of constructing the locks and other accessory works should be satisfied that King county, or some other local agency, would do the excavation in the waterway above the locks to the 'dimensions recommended in said project,' and would 'secure the United States from liability for any claims or damages on the account of * * * the lowering of the level of the Lake Washington, raising the level of Salmon Bay, or any other alteration of the level of any part of said waterway.' In compliance with the first of these requirements, the Legislature of the state of Washington in 1895 passed an act authorizing counties to condemn land 'whenever the government of the United States or of the state is intending or proposing the construction, operation, or maintenance of any public work * * * whenever such condemnation will enable the county to aid, promote, facilitate or prepare for such construction * * * or to fulfill or dispose of any condition upon which such construction * * * is by law or for any cause contingent.' The act also provided for a tax levy to pay the cost of any such condemnation proceedings. Laws 1895, p. 3. Acting pursuant thereto, the county of King by condemnation and purchase acquired the right of way for a canal for the full width required by the Secretary of War, and deeded the same to the United States. The cost of this proceeding does not appear in the present record, but it was shown in another action brought to enjoin certain other proceedings had in connection with the construction of the canal to have exceeded $225,000. In further pursuance of the same design, the Legislature in 1901 passed an act granting to the United States the right to raise the waters of Salmon Bay, and the right to lower the waters of Lake Washington, in so far as the same should be necessary in the construction of the proposed canal, releasing the 'United States from all liability to damages to this state, its successors or assigns, that shall or might arise from such lowering or raising' of such waters. Laws 1901, p. 7. At the time of the passage of this act the state of Washington owned all of the shore lands bounding Lake Washington, with the possible exception of one tract which is not affected by this action.

For the purpose of enabling the agencies interested to comply with the second requirement imposed by the United States, the Legislature in 1907 passed an act providing, in substance, that, whenever the government of the United States 'is intending or proposing the construction or operation of any river, lake, canal or harbor improvement,' the county commissioners were empowered to levy upon the property benefited by such proposed improvement and assessment 'for the purpose of paying the expenses of such improvement, or so much thereof as said board of county commissioners shall determine.' Laws 1907, p. 582. Acting pursuant to this act, the county commissioners of King county levied an assessment to be expended on the construction of the proposed canal, fixing the amount thereof at the sum of $1,075,000, and caused an assessment district to be formed of property thought to be benefited by the proposed improvement and levied an assessment thereon equal to the sum above named, a proportional share of which was levied upon the property of the respondents in this action. In 1909 the Legislature passed an act creating a state shore land improvement fund, and appropriated out of the fund the sum of $250,000 to be expended in the 'construction or improvement of what is known as the Lake Washington Canal.' Laws 1909, c. 218. The act provided that the sum appropriated should be subject to the order of the United States government engineer having the improvement in charge who was authorized to expend the same in the excavation of the canal. In August, 1909, a contract was let by the engineer in behalf of and in the name of the state of Washington with the appellant C.J. Erickson, by the conditions of which Erickson undertook to excavate a channel between Lake Union and Lake Washington, a distance of some 2,000 feet. The specifications called for a cut varying between 70 and 80 feet in width at the bottom, with a slide slope of 1/4 horizontal to 1 vertical, the bottom of the cut to commence at an elevation of 25 above mean low water in Puget Sound at Lake Union, and thence gradually rise to an elevation of 40 feet above the same level at Lake Washington. This channel was completed according to contract, and another contract was let for a cut along the center line of the channel excavated under the first contract, the bottom of which was to be 'at elevation 30, and the upper end, the Lake Washington end, to be cut off from the lake by a series of five gates, the tops of which are at elevation 40,' so as to permit the flow of water through the cut and at the same time control such flow. This cut was also completed. The respondents acquired their uplands through mesne conveyances from the United States, patent issuing on September 27, 1889. They purchased the shore lands bordering thereon from the state of Washington on December 4, 1903. This action was begun in October, 1909, and such subsequent proceedings were had therein as to result in a decree entered on October 28, 1910, restraining and enjoining the defendants 'from taking further proceedings to the effect and intent of excavating said Lake Washington canal, or any part thereof, or of lowering the waters of Lake Washington, or of levying said assessment, or of issuing any warrants thereunder, or creating any indebtedness of said estate or county for the purpose or with the intent of excavating said canal, or for the purpose or to the end and effect of lowering the waters of said Lake Washington.' This appeal followed.

The record does not advise us as to the grounds on which the learned trial judge justified the somewhat sweeping decree entered, but counsel for respondents urge in its support two principal contentions, which we shall notice in their order.

The first contention is that, since the respondents own both upland and the shore lands fronting on the borders of Lake Washington, they have riparian and littoral rights in the waters of the lake with the right of...