Colella v. King County
| Citation | 433 P.2d 154,72 Wn.2d 386 |
| Decision Date | 02 November 1967 |
| Docket Number | No. 38335,38335 |
| Court | United States State Supreme Court of Washington |
| Parties | Tony COLELLA, Respondent, v. KING COUNTY, a legal subdivision of the State of Washington, Appellant. |
Charles O. Carroll, Pros. Atty., Seattle, James E. Kennedy, William L. Paul, Jr., Deputy Pros. Attys., for appellant.
Michael R. Donovan, Bellevue, for respondent.
Defendant, King County, appeals from a judgment entered against in April 13, 1965.
The judgment (1) grants plaintiff $4,500 'for damages incurred by plaintiff by the Temporary constitutional taking or damaging of plaintiff's property' (italics ours); (2) enjoins King County from diverting certain water onto plaintiff's property; (3) directs the county to clean certain culverts and to remove others (as to (2) and (3), the power of the court to order the county to do this is not questioned on this appeal; we do not consider the problem); and (4) grants to plaintiff '$50.00 per day after September 1, 1965 continuing damages if defendant fails to comply herein.'
Plaintiff cross-appeals from that portion of the judgment that allows him only $4,500 damages.
The method chosen by the county to present its appellate assignments of error has made our consideration of this appeal difficult. The county's assignments of error are:
1. The trial court In determining that the Thompson Road ditch contributed a relatively substantial amount of water to plaintiff's land for the reason that the road ditch water was intermittent and no weight at all was given to plaintiff's and adjoining land owner's surface water of extremely large quantity.
2. The trial court erred In determining that once a drainage system is installed, as the flume and culverts 40 years ago, the County must keep them in repair; for the reason that such flume and culverts serve to drain private water as well as public waters; and King County had no authority to drain private waters from a spring or from the surface.
3. The trial court erred In finding any damages due plaintiff because this is inconsistent with the trial court's determination that plaintiff was holding the land for speculation, King County having already on March 29, 1965 commenced the legal process of establishing a drainage district.
4. The trial court erred In awarding future damages of $50 daily after September 1, 1965 because there was no showing as to future damage, and the amount is speculative and the court has no power to award future damages. (Italics ours.)
' In determining,' 'in finding,' and 'in awarding' fall far short of meeting the requirements of Rules on Appeal 42(g)(1)(iii) and 43, RCW vol. O, by which a finding of the trial court may be questioned on appeal. The phrases are only invitations to us to read the record and second-guess the trial court. This we cannot do. Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 343 P.2d 183 (1959), and the plethora of cases that have cited it.
Failure of the county to comply with the cited Rules on Appeal requires us to accept the trial court's findings of fact as verities and the established facts of the case. 1 Pier 67, Inc. v. King County, 71 Wash.Dec.2d 89, 426 P.2d 610 (1967); Caffrey v. Chem-Ionics Corp., 69 Wash.Dec.2d 651, 654, 419 P.2d 809 (1966); Bignold v. King County, 65 Wash.2d 817, 399 P.2d 611 (1965). The county's first assignment of error presents nothing for our consideration.
Plaintiff and his family have owned 4-acre tract 8 and 5-acre tract 19 of Moore's Five Acre Tracts, King County, for more than 30 years. They were farmed by plaintiff's father. The tracts are separated by Burns Street (formerly Roxbury Street), which extends east and west. Tract 8 is to the north; tract 19 to the south. The property is presently zoned M--1, unlimited, which permits its use for manufacturing or related purposes.
Many years ago, King County installed a drainage ditch on the north side of Burns Street. Several culverts under Burns Street carried surface water to the drainage ditch from tract 19. The ditch drains naturally in an easterly direction and eventually flows to the Duwamish waterway. Defendant county has failed to keep either the culverts or the drainage ditch clear of debris.
Tract 19 lies south on Burns Street. Thompson Road, south of tract 19 but contiguous to it, also extends generally east to west.
It is not necessary to detail the drainage system on Thompson Road previous to 1959; but we find it highly significant that the trial court found that
prior to 1959 none of the surface waters from Thompson Road reached plaintiff's property.
For many years, the water of a spring to the south of tract 19 flowed north in a ravine. The small stream thus created was dammed by plaintiff's father and the water used for domestic purposes and for cleaning produce grown on the land. Overflow from the dam was carried northerly by pipes on plaintiff's westerly property line to join a small creek flowing from the west. The water then flowed northerly through an 18-inch culvert installed under Burns Street by defendant; thence, it flowed easterly into Duwamish waterway.
About 1959, defendant county changed the drainage system of Thompson Road. It removed a culvert; purchased an easement from the Seattle Land Company, which owned the property between Thompson Road and plaintiff's tract 19; and installed a 75-foot, 18-inch culvert in the easement area. The new system diverted the Thompson Road surface water to the ravine already described.
The trial court found that this
dumped into the ravine a very substantial amount of surface water water resulted in washing out the small dam belonging to the plaintiff, inundated the property of the plaintiff causing the small creek bed to overflow and resulted in flooding of (the) property of the plaintiff. ( of Fact 6).
This caused the Burns Street culverts and drainage ditch to be filled with dirt and debris so that water backed up and overflowed plaintiff's property.
(A)s a result, the property of the plaintiff is marshy and swampy and cannot be used, in large part, for either agricultural or industrial uses and this condition continues to (the) present time. ( of Fact 6).
The trial court further found that defendant's action 'is rendering plaintiff's property substantially unfit for use to the damage of plaintiff.' 2
Thus, it appears that the county's act of casting the surface waters from Thompson Road into the ravine and then onto plaintiff's land, and its failure to keep clear its culverts under and its drainage ditch north of Burns Street have caused plaintiff's property to be in its present unusable condition.
We give the broadest possible interpretation to the county's second assignment of error; we Assume that it is directed to conclusion of law No. 3 (), which states:
That the defendant, King County, is under a duty not to dump surface waters onto the property of the plaintiff and is under a duty to maintain its culverts and ditch on Burns Road and not to cause the flooding of the property of plaintiff.
We find there is no merit to either of the two facets of the county's attack upon this conclusion of law.
Surface waters may not be artificially collected and discharged upon adjoining lands in quantities greater than or in a manner different from the natural flow thereof. King County v. Boeing Co., 62 Wash.2d 545, 550--551, 384 P.2d 122 (1963), and authorities cited. The county breached this duty when it transferred the surface water of Thompson Road across the acquired easement by culvert and into the ravine; thence, to plaintiff's property.
As to the second facet--the duty of the county to maintain its culverts and its ditch on the north side of Burns Street--we find the question answered many years ago in Ronkosky v. City of Tacoma, 71 Wash. 148, 128 P. 2 (1912). The court said:
Where a street is improved across such natural water course, it is incumbent upon the municipality, not only to make an adequate bridge culvert or passage for the water in the first instance, but to keep it in such condition that it shall not obstruct the stream thereafter. (Citing authorities.)
Later, the court stated:
In the second place, the city, while under no primary obligation to furnish drainage for surface water, even if this stream could be considered surface water, had a discretionary power so to do. Having constructed this drain and undertaken the performance of this discretionary duty, the obligation to maintain the drain in a safe and suitable condition was no longer a matter of mere discretion. * * * There arose the positive duty to exercise reasonable care to maintain its original efficiency. (Italics ours.)
There are two short answers to the county's third assignment that it was error to allow plaintiff any damages because 'this is inconsistent with the trial court's determination that plaintiff was holding the land for speculation.' First, there is nothing in the findings of fact to indicate the court found that plaintiff was 'holding the land for speculation'; and second, if there were, it would be a non sequitur.
Finally, the county's fourth assignment of error is directed to the trial court's finding that 'After September 1st, 1965 plaintiff's lands will suffer damage of $50.00 per day.' We have previously pointed out that there is no attempt upon the part of the county to abide by the Rules on Appeal. This would be sufficient for us to disregard this assignment of error were it not for plaintiff's cross-appeal.
Plaintiff's cross-appeal requires that we note a number of related matters.
Although the trial court found that plaintiff's property had been damaged by the county, there is not a direct finding of fact stating whether the damage is temporary or permanent. We assume for the purpose of this opinion, however, that the court considered the damage temporary for the Judgment enjoins the county from diverting water from Thompson...
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