Boitano v. Snohomish County, 28481.

• Decision Date: 20 December 1941
• Docket Number: 28481.
• Citation: 11 Wn.2d 664,120 P.2d 490
• Parties: BOITANO et ux. v. SNOHOMISH COUNTY et al.
• Court: Washington Supreme Court

120 P.2d 490

11 Wn.2d 664

BOITANO et ux. v. SNOHOMISH COUNTY et al.

No. 28481.

Supreme Court of Washington

December 20, 1941

Department 1.

Action by David Boitano and Margaret Boitano, his wife, against Snohomish County and another, for damages to realty allegedly caused by the acts of the county in conducting and precipitating water from its premises onto the lands of plaintiffs. From the judgment, the plaintiffs appeal.

Reversed with direction.

Appeal from Superior Court, Snohomish County; Ralph C. Bell, Judge.

O. D Anderson and Frank L. Cooper, both of Everett, for appellants.

J. W Dootson and C. P. Brownlee, both of Everett, for respondents.

STEINERT Justice.

This is an action for damages to real property caused by the acts of defendant Snohomish county in conducting and precipitating water from its premises onto the land of plaintiffs. The action was tried to the court without a jury. The court made findings of fact, from which it concluded that plaintiffs were not entitled to recover. Judgment was entered accordingly, and plaintiffs have appealed.

The facts as found by the trial court, in so far as they are material here, are as follows: Appellants own an undivided three-quarters interest in approximately eighteen acres of garden land in Snohomish county. They also hold the remaining undivided one-quarter interest in the land under a lease from Alice Cummings, who was made a party defendant to the action for the reason that she refused to join as plaintiff. She is not, however, a party to this appeal.

The land lies several feet below, and just west of, a paved public highway. Bordering the highway on the east is a tract of land which the county acquired by purchase about twenty-five years ago, for use as a gravel pit. That land, in its original state, lay upon a hillside from which the county proceeded to excavate gravel to be used in the construction and maintenance of public highways. In that operation, the county laid out no particular plan, but, as it proceeded with the work, excavated the earth down to an approximate level with the highway.

Some seepage and drainage from the hillside had always found its way onto appellants' land, and, as the excavation was carried forward, numerous small springs were uncovered and opened, but neither the seepage nor the overflow from these springs was of sufficient volume to injure adjacent property except possibly during certain winter months or after a heavy rainfall.

On or about October 15, 1939, the county, while engaged in excavating gravel for the purposes heretofore mentioned, uncovered and opened a large spring on its premises, at a point about one hundred fifty yards east of the highway. The flow of water from this spring was directed by the county into an artificial channel dug by it, leading from the source of the flow westward to the public highway, and then underneath the highway, through a culvert, onto a corner of appellants' land. From that point, the water flowed onto adjoining property, whence, by seepage and flow, it was precipitated in large quantities onto other parts of appellants' premises, with the result that the water covered about two and one-half acres of appellants' land, rendering it wholly unfit for gardening purposes, to which it had formerly been devoted. Other portions of appellants' land were also injured through seepage from the acreage primarily affected. From October, 1939, to the time of the trial below, the water continued to flow and seep in the manner just described. The trial court found that appellants had suffered damages in the amount of twelve hundred fifty dollars.

The county has never instituted any condemnation proceeding in connection with either the acquisition or the operation of its gravel pit, nor has it paid any compensation to appellants for the damages inflicted upon them. On the other hand, appellants did not at any time prior to the commencement of this action present or file any claim for damages in compliance with Rem.Rev.Stat. § 4077, which provides that all claims for damages against a county must be presented to the county commissioners and filed with the clerk within sixty days after the time when such claim for damages accrued, and that all such written claims must locate and describe the defect which caused the injury, must specify the amount of damages claimed, and must state the actual residence of the claimant at the time of presenting and filing the claim and for a period of six months immediately prior to the time such claim for damages accrued. The uncovering of the large spring on the county's property, although due to the act of the county, was not due to any negligence in its operation of the gravel pit.

From these facts, the court concluded that appellants were not entitled to recover from the county. That conclusion was based upon the fact that appellants had not filed a claim in accordance with the statute just cited.

The sole question with which we are here concerned is whether or not the precipitation of water upon appellants' land, in the manner and under the circumstances above described, constitutes a taking or damaging of private property within the meaning of Article I, § 16, of the Washington constitution, which reads, in part, as follows: 'No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, * * *.'

Appellants' right to recover for the damages sustained by them depends wholly upon the answer to the question just stated. If the acts of the county constituted a taking or damaging in the constitutional sense, then the filing of a claim in accordance with Rem.Rev.Stat. § 4077, was not a prerequisite to the maintenance of the action, and appellants are entitled to a judgment in the amount of their damages as found by the court. Kincaid v. City of Seattle, 74 Wash. 617, 134 P. 504, rehearing denied 135 P. 820; Wong Kee Jun v. City of Seattle, 143 Wash. 479, 255 P. 645, 52 A.L.R. 625; Marshall v. Whatcom County, 143 Wash. 506, 255 P. 654; Netherlands American Mtg. Bank v. City of Centralia, 144 Wash. 315, 257 P. 842; Litka v. City of Anacortes, 167 Wash. 259, 9 P.2d 88; Knapp Brick & Tile Co. v. Skagit County, 4 Wash.2d 152, 102 P.2d 679. On the other hand, if the damage to appellants' land was not within the contemplation of the constitutional provision, then the filing of a claim was a condition precedent to the right to maintain the action, and, no such claim having been made, appellant cannot recover. Fix v. City of Tacoma, 171 Wash. 196, 17 P.2d 599; Holmquist v. Queen City Construction Co., 175 Wash. 681, 27 P.2d 1066 (in which the constitutional provision was not discussed); Snavely v. City of Goldendale, Wash., 117 P.2d 221.

The use of land for a gravel pit by a county of this state is undoubtedly a public use, for, by Rem.Rev.Stat., Vol. 7A, § 6450-9, 'Whenever it is necessary to secure any lands * * * for any borrow pit, gravel pit, quarry or other land for the extraction of material for county road purposes or right of way for access thereto, the board of county commissioners is authorized to acquire such lands on behalf of the county by gift, purchase or condemnation.' Accord, Armstrong v. City of Seattle, 180 Wash. 39, 38 P.2d 377, 97 A.L.R. 826.

The taking or damaging of property to the extent that it is reasonably necessary to the maintenance and operation of other property devoted to a public use is, likewise, a taking or damaging for a public use. In Decker v. State, 188 Wash. 222, 62 P.2d 35, 37, the state had slashed a roadway across the plaintiff's land for the purpose of re-laying a water main leading from a reservoir located north of the plaintiff's property to the Northern State Hospital for the Insane situated south of her premises. The plaintiff brought an action to recover compensation, on the theory that there had been a taking and damaging by the state under its power of eminent domain, although no proceeding of that nature had been instituted by the sovereign. On appeal from a judgment against it, the state made the contention, among others, that it could not have acquired the roadway by condemnation because it was neither a public road nor a private way of necessity. In answer to that contention, we said: 'Now, it is recognized by all the courts that the taking of property by the State for hospitals and almshouses is a public use. 1 Lewis, Eminent Domain (3d Ed.) § 270; United States v. Fox, 94 U.S. 315, 24 L.Ed. 192. It follows, we think, that the taking of property which is reasonably necessary to the proper maintenance and operation of such an institution as the Northern Hospital is a taking for public use. There can be nothing more necessary to the operation of such an institution than the maintenance of an adequate water supply. If the State were here asserting its right to condemn the property of respondent which it has already taken, we should have no hesitancy in holding that the use for which it sought to condemn was 'really a public use.' Having already taken respondent's property for 'public use,' the State cannot now escape paying just compensation.'

In Ulery v. Kitsap County, 188 Wash. 519, 63 P.2d 352, 353, the plaintiff brought suit to recover compensation for damages by waters deposited upon his land and impounded there by a newly constructed highway. Plaintiff did not claim that the construction work itself was unlawful or that there was any negligence in its performance. Touching the question whether or not the damages allowed by the trial court were constitutional damages or were merely damages arising from tortious negligence of the county, for which a claim should have been duly filed, we said:

'Under

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