Cass v. Dicks

Decision Date24 February 1896
Citation14 Wash. 75,44 P. 113
PartiesCASS ET UX. v. DICKS ET AL.
CourtWashington Supreme Court

Appeal from superior court, Skagit county; Henry McBride, Judge.

Action by James F. Cass and Matilda Cass, his wife, against James Dicks and others, for an injunction to restrain the building of a dike. Judgment for defendants, and plaintiffs appeal. Affirmed.

S. H Pilis, for appellants.

Geo. A Joiner and Million & Houser, for respondents.

ANDERS J.

The appellants are owners of a farm in Skagit county, situated in the upper or northerly end of the delta lying between the north fork of Skagit river and an offshoot or branch thereof known as "Dry Slough." Their land is bounded on the north and west by the river, and on the east by the slough. All the land lying between these streams is fertile and productive agricultural land, but, being low, is liable to inundation at times of high water, unless protected from overflow by means of dikes or embankments. Respondents, or a least a majority of them, own land below that of appellants. From the northern extremity of appellants' land the general surface of the ground gradually descends towards the south, so that the water which escapes over the banks of the streams naturally flows in that direction. Before this controversy arose, the whole country between the two streams was protected, though imperfectly, by dikes erected along the margin of the river and that of Dry slough which is itself a considerable stream. Appellants' land is somewhat lower in the center than on either side, and, when the water in the streams is higher than the ordinary stage, a portion of it percolates through the banks and soil, and finds its way to the lower ground, where it remains until the water in the river and slough falls, after which it passes off through the soil, or sinks beneath the surface. Prior to the commencement of this action, defendants, pursuant to an act of the legislature concerning public dikes and dams, approved February 2, 1888, and the amendments thereto, organized a diking district, including the land south of that of appellants. Upon the organization of the district, the respondent Charles Johnson was appointed dike supervisor by the county commissioners, and was proceeding to erect a large and permanent dike and roadway from the river to Dry slough, upon and along the north boundary of Hansen's farm, and parallel with the south line of appellants' land, for the purpose of preventing their lands from being flooded and damaged by the overflow of the streams during extraordinary freshets, when appellants instituted this action to enjoin the erection thereof. A temporary injunction was asked for, and, after a hearing, was denied; and thereupon the work was resumed, and continued until practically completed. Appellants then filed a supplemental complaint, setting up the fact that the dike had been completed after the filing of their original complaint, and alleging that, as constructed, it would prevent the seepage, surface water, and overflow from flowing south from their premises as it was accustomed to do, and thereby destroy their crops, pasture, and fruit trees, and render their farm valueless for the purposes which it was used, and praying for a mandatory injunction compelling the removal of the dike. Upon the final hearing the court found as a fact that no damage has or will result to appellants or their property by reason of the construction or maintenance of the dike, and, as a conclusion of law, that appellants were not entitled to an injunction, and thereupon entered judgment dismissing the complaint, at the costs of appellants.

Several errors are assigned by appellants which it is unnecessary to discuss in detail, for the reason that the correctness and propriety of the judgment depend wholly upon the question whether or not the respondents, either as individuals or as an association, or as a quasi corporation, have a right to protect their lands from damage caused by water flowing over the same from the premises of appellants, either as surface water or water escaping over the banks of the surrounding streams, if, by so doing, the lands of appellants may be injured to a greater or less degree. Of course, if it be true, as the court found, that the dike in controversy will cause no damage to their land, it necessarily follows that appellants are not entitled to the relief demanded, and that the judgment of the trial court must be affirmed. It must be borne in mind that the water, the flow of which will be obstructed by the dike, is not the current of a natural stream; and therefore the law determinative of the rights of riparian proprietors is not at all applicable to the case in hand. The water which passes from the premises of appellants does not flow in a defined channel having a bed and banks, and, consequently, is to all intents and purposes surface water, and the rights of the respective parties in regard thereto must be determined by the law relating solely to surface water; and, as to these rights, the decisions of the courts in the various states are far from uniform. The courts of some of the states have adopted the rule of the civil law, by virtue of which a lower estate is held subject to the easement or servitude of receiving the flow of surface water from the upper estate. Under that rule, it is clear that the flow of mere surface water from the premises of an upper proprietor to those of a lower may not be obstructed or diverted to the damage of the latter. But the contrary rule of the common law has been adopted in many of the states, and must be followed in this case, because it is neither inconsistent with the constitution and laws of the United States nor of this state, nor incompatible with the institutions and condition of society in this state. Code Proc. § 108. By that law surface water, caused by the falling of rain or the melting of snow, and that escaping from running streams and rivers, is regarded as an outlaw and a common enemy, against which any one may defend himself, even though by so doing injury may result to others. The rule is based upon the principle that such water is a part of the land upon which it lies, or ever which it temporarily flows, and that an owner of...

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  • U.S. v. Milner
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 9 Octubre 2009
    ...the common law also supports the owner's right to build structures upon the land to protect against erosion. See, e.g., Cass v. Dicks, 14 Wash. 75, 44 P. 113, 114 (1896) ("If a landowner whose lands exposed to inroads of the sea[ ] ... erects sea walls or dams for the protection of his land......
  • Soules v. Northern Pacific Railway Company
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    ...by so doing injury may result to others.'" DiBlasi v. City of Seattle, 136 Wash.2d 865, 875, 969 P.2d 10 (1998) (quoting Cass v. Dicks, 14 Wash. 75, 78, 44 P. 113 (1896)). In its strictest form, under the common enemy doctrine, if the landowner "`in the lawful exercise of his right to contr......
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    ...water. Washington regards surface water 3 "as an outlaw and a common enemy against which anyone may defend himself." Cass v. Dicks, 14 Wash. 75, 78, 44 P. 113 (1896), Morton v. Hines, 112 Wash. 612, 617, 192 P. 1016 (1920); Wood v. Tacoma, 66 Wash. 266, 271-72, 119 P. 859 (1911); Island Cy.......
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