Conger v. Pierce County

• Decision Date: 28 May 1921
• Docket Number: 16310.
• Citation: 116 Wash. 27,198 P. 377
• Court: Washington Supreme Court
• Parties: CONGER v. PIERCE COUNTY et al.

198 P. 377

116 Wash. 27

CONGER v. PIERCE COUNTY et al.

No. 16310.

Supreme Court of Washington, En Banc.

May 28, 1921

Appeal from Superior Court, Pierce County; M. L. Clifford, Judge.

Action by Henry Conger, as receiver of the Tacoma Meat Company against Pierce County and others. Judgment for defendants and plaintiff appeals. Reversed and remanded.

Holcomb J., dissenting.

Davis & Neal, of Tacoma, for appellant.

J. W Selden, John A. Sorley, and F. D. Nash, all of Tacoma, and Malcolm Douglas, Howard A. Hanson, and Bert C. Ross, all of Seattle, for respondents.

BRIDGES J.

This was an action to recover damages caused by certain erosions, the result, it is alleged, of changes in and improvements of the Puyallup river, made by the defendants, which river, in part, forms the boundary line between the defendant counties and empties into Commencement Bay, at or near Tacoma. The complaint alleged, and the plaintiff's testimony tended to show, the following facts.

On December 17, 1917, and for a number of years prior thereto, the Tacoma Meat Company, a corporation, owned a small tract of land bordering on the Puyallup river, near its mounth, on which land it had erected various buildings in which it had carried on a general slaughtering and packing establishment. Within these buildings were considerable quantities of valuable machinery and other personal property. Prior to the making of the improvements hereinafter mentioned, the Puyallup river was a tortuous, navigable stream, which had been in the habit of overflowing its banks during the rainy seasons, and thus doing much damage to the bridges, roads, and other public property of the defendants. In 1913 the Legislature enacted a law which authorized any two counties, under certain circumstances, to jointly improve streams which flowed through both of such counties, or formed the boundary line between them, so as to correct, as far as might be, their habit of overflowing their banks and thereby causing damage. By virtue of this enactment the defendants entered into a contract, under date of January 19, 1914, for the purpose of straightening and deepening the channel of the Puyallup river and abating the flood tendencies. This contract formed a district within which such improvements should be made, and the plaintiff's property is located in the extreme northwesterly portion of such district.

After entering into the contract, the counties proceeded to make the improvements, and in many places they straightened the stream, and widened and deepened it, and placed various improvements along and upon the banks, with a view of keeping the waters from eroding them. A few hundred feet immediately above the plaintiff's property the river, previous to its improvement, took a wide bend to the southwest, and as the waters so ran they were in the habit of hitting the northeasterly bank at a point slightly upstream from the plaintiff's property, which act caused the waters to be deflected in such a way that very little, if any, erosion had occurred on the plaintiff's property in many years. In improving the stream the defendants eliminated the bend just mentioned, by causing the channel of the stream to be straightened, and as a result of such straightening, and the placing of concrete blocks on the banks for their protection, the waters of the stream were caused to come forcibly in contact with the bank on which plaintiff's property was situated, and during a high freshet in the winter of 1917, and after the defendants had completed their work of improving the river, there was such erosion of the plaintiff's lands as to cause its buildings to lose their foundations and to be floated, together with their contents, out into Commencement Bay, or Puget Sound. The particular causes of the erosions are alleged to be the straightening of the channel in such manner as to throw the current of the stream against the river bank at the point of plaintiff's location, the placing of concrete protection on the bank opposite and a little above plaintiff's property in such way as to deflect the waters against the bank of the river where plaintiff's improvements were located, and the failure of the defendants to protect the banks along that part of the stream where plaintiff's property was situated.

When the plaintiff had rested its case, the trial court granted the defendants' motion to take the case from the jury and enter judgment dismissing the action. Later such judgment was made and entered, and the plaintiff has appealed. Since there was sufficient testimony to carry the case to the jury on the theory that respondents' acts had caused the damages suffered by appellant, we will henceforth speak of the damage as being caused by respondents, realizing of course, that, at best, it was a question for the jury.

The arguments before this court have taken such a wide and varied range that it seems necessary for us at this time to show what the exact question before us is. In the first place, the appellant is not seeking any damage because its land and property were flooded. As a matter of fact, the waters at the time in question were so high as that all of plaintiff's property was flooded; but plaintiff seeks recovery only for damage done by erosion of his lands. In this way the direct question of damage by flooding is not involved. The testimony tends to show that the erosion was caused by such of the waters as were in the channel of the stream, and that the overflow waters did not cause any erosion. Again, although this stream is navigable within the improved district, we have concluded that the law applicable to improving navigable streams in aid of navigation is not directly involved. While the improvements made by the respondents may or may not have improved the stream for navigation, the purpose of the improvement was not in aid of navigation, but to correct the tendency of the stream to overflow its banks. The legislative enactment authorizing the counties to do this work (Laws 1913, p. 156) does not contemplate the improvement of the stream for the purpose of making it more navigable. Its title, which is as follows, quite correctly shows the purpose of the act:

'An act authorizing counties to contract together for administrative and financial co-operation in the improvement, confinement and protection of rivers and the banks, tributaries and outlets thereof, whose waters flowing into or through such counties work damage by inundation or otherwise, authorizing the levy of taxes and the creation and disbursement of special funds for such purposes, delegating the power of eminent domain in aid of, and providing generally ways and means for the accomplishment of such purposes and the performance of such contracts.'

The direct question before us is whether a county which straightens and otherwise improves a navigable stream for the purpose of preventing it from overflowing its banks and thereby doing damage to the public property, where such improvements are made by virtue of express authority of the Legislature, is liable to a landowner if, because of such improvements, and the manner in which they are made, his property is eroded and washed away. The trial court stated its position, and, as we understand it, that of the respondents, in the following language:

'The Puyallup river, at the point in controversy, is a navigable and tidal stream. The state in its sovereign right is owner of the bed and banks and body of the stream, and as such owner may make such changes in the course of the river, and may improve the same by widening or deepening or straightening a channel, or in any other manner it may see fit, and it is not liable to the owner of the shore land for any damage that may result from so doing, either directly or indirectly. It owes no duty to the shore landowner to protect him from resulting damage on account of any improvement the state may make upon its own property in the banks or bed of the stream, and the shore landowner has no right to any protection from the result of the state's acts in dealing with the river channel and the waters flowing therein. * * *'

The parties to the action have elaborately discussed the law of outlaw, or surface, waters. In our opinion, those questions are not in this case, and to undertake to discuss them would be to create confusion in a question already sufficiently difficult. The appellant is complaining only of the action of those portions of the waters which were within the bed of the stream. It is not complaining of any overflowed, outlaw, or surface waters. Certainly, so long as the waters are confined to the bed and banks of the stream, they cannot be outlaw waters.

It seems certain that had a private individual or private corporation caused the damage which the appellant alleges, there would be a liability. While a private individual has a right, under certain circumstances, to protect himself against overflow, surface, and outlaw waters he cannot so change the stream, in an effort to protect his own property, as that he will thereby flood or erode the property of some one else. It seems to us that the authorities are quite unanimous in this regard. A few of them are as follows: Judson v. Tide Water Lumber Co., 51 Wash. 164, 98 P. 377; Johnson v. Irvine Lumber Co., 75 Wash. 539, 135 P. 217; Valley R. R. Co. v. Franz, 43 Ohio St. 623, 4 N.E. 88; Crawford v. Rambo, 44 Ohio St. 279, 7 N.E. 429; Freeland v. Penna. R. R. Co., 197 Pa. 529, 47 A. 745, 58 L. R. A. 206, 80 Am. St. Rep. 850; Gerrish v. Clough, 48 N.H. 9, 97 Am. Dec. 561, 2 Am. Rep. 165; Bowers v. Miss. R. R., etc., Co., 78 Minn. 398, 81 N.W. 208, 79 Am. St. Rep. 395; Morton v. Ore, Short Line Ry. Co., 48 Or. 444, 87 P. 151, 1046, 7 L. R. A. (N. S.) 344, and note, 120 Am. St....