D'Ambrosia v. Acme Packing & Provision Co., 25205.

Decision Date26 November 1934
Docket Number25205.
Citation37 P.2d 887,179 Wash. 405
CourtWashington Supreme Court
PartiesD'AMBROSIA v. ACME PACKING & PROVISION CO.

Department 1.

Appeal from Superior Court, King County; J. C. McKnight, Judge pro tem.

Action by C. D'Ambrosia against the Acme Packing & Provision Company. From a judgment for plaintiff, defendant appeals.

Remanded with direction to modify judgment.

Robbins & Rickles, of Seattle, for appellant.

Wright & Wright, of Seattle (Felix Rea, of Seattle, of counsel), for respondent.

MAIN, Justice.

By this action the plaintiff sought injunctive relief, and also damages. The cause was tried to be court without a jury, and resulted in findings of fact from which the court concluded that the plaintiff was entitled to relief in both of the respects demanded. From the judgment entered granting an injunction and awarding damages to the plaintiff in the sum of $160, the defendant appeals.

The respondent, C. D'Ambrosia, owns two tracts of land, which is market garden land a short distance south of the city of Seattle, in the Duwamish River Valley. One tract comprises about twelve acres, and the other about eight. To the east of this land is a public highway, along the west side of which is what is referred to as a ditch or a depression in the ground due to the breaking down of a box drain that was put in many years ago. The appellant, Acme Packing & Provision Company, is a corporation, and owns and operates a slaughter house east of the highway and across the road from the respondent's land.

In the year 1925 the appellant constructed a high board fence on the westerly side of the highway, but east of the ditch, so that the stock unloaded from the cars could be driven down to the feeding pens back of the fence and thus not be distributed over the traveled portion of the highway. In December, 1933 there was a heavy rainfall, and the water in the appellant's feeding pens rose to a height of approximately eighteen inches. To relieve this situation, it placed a pump upon the highway and a twenty-inch pipe leading to the Duwamish river. The water was pumped off of the appellant's property, conveyed through the pipe, and, as first operated, was discharged upon the respondent's land and cut away approximately ten cubic yards thereof. After this, the pipe was moved farther to the east and did not discharge the water upon the land of the respondent.

January 29, 1934, the respondent brought the present action to require the appellant to remove the pump and pipe, and also the fence from the highway. He sought damages for the land washed away, and for the loss of an early crop upon a small portion of the land. February 1, 1934, the appellant answered the complaint and show cause order which had been issued at the time the complaint was filed, and the case was set for hearing on February 21st. Prior to the trial, the appellant had removed the pump and the pipe from the highway, and these are no longer involved in the action.

During the trial, and Before the respondent's evidence had been concluded, the appellant asked leave to amend its answer and set up an agreement relative to the fence, which request was refused, and the ruling thereon presents the first question to be determined. Whether the amendment should have been permitted rested in the discretion of the trial court, and the exercise of that discretion will not be disturbed upon appeal, in the absence of a showing of abuse thereof. International Development Co. v. Clemans, 59 Wash 398, 109 P. 1034; State ex rel. Murphy v. Coleman, 71 Wash. 15, 127 P. 568. In this case there was no abuse of discretion on the part of the trial court in refusing the amendment. The cause was an emergency one. It had been set for trial approximately three weeks Before . This would seem to have been ample time for the appellant, in the exercise of reasonable diligence, to ascertain whether there had been an agreement relative to the fence. Cases which hold that the trial court did not abuse its discretion in permitting an amendment to a pleading during the trial do not support the appellant's contention in this case that there was an abuse of discretion. The ruling of the trial court on the application to amend will not be disturbed.

The next question is whether the trial court erred in ordering the removal of the fence which was upon the public highway. Rem. Rev. Stat. § 9913, provides that it is a public nuisance to obstruct or encroach upon a public highway. Section 9921 provides that any private person may maintain a civil action for a public nuisance, if it is specially injurious to him. An owner of property abutting upon a highway has such a special interest therein as entitles him to maintain an action for the removal of an obstruction thereon.

In Reed v. Seattle, 124 Wash. 185, 213 P. 923, 924, 29 A. L. R. 446, it was said: 'But it is alleged that the appellants are the owners...

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7 cases
  • City of Seattle v. Monsanto Co.
    • United States
    • U.S. District Court — Western District of Washington
    • 22 Febrero 2017
    ...public land that entitles them to maintain an action to remove a public nuisance on that public land. D'Ambrosia v. Acme Packing & Provision Co. , 179 Wash. 405, 408, 37 P.2d 887 (1934) ; Reed v. Seattle , 124 Wash. 185, 188–89, 213 P. 923 (1923) (collecting cases); Brazell v. City of Seatt......
  • Binning v. Miller
    • United States
    • Wyoming Supreme Court
    • 29 Abril 1940
    ... ... Clausen, 143 P. 32; Irrigation & Power ... Co. v. Grant, 44 Wyo. 392. Water cannot be legally ... 41 P.2d 974; D'Ambrosia v. Acme Packing & Provision ... Company, 37 P.2d 887; ... ...
  • The City of Cheney v. Bogle, No. 26000-3-III (Wash. App. 5/1/2008)
    • United States
    • Washington Court of Appeals
    • 1 Mayo 2008
    ...prescription or lapse of time cannot be relied on to establish a right to maintain a public nuisance.'" D'Ambrosia v. Acme Packing & Provision Co., 179 Wash. 405, 408, 37 P.2d 887 (1934) (quoting 20 Ruling Case Law at 498). In D'Ambrosia, the trial court ordered the removal of a fence that ......
  • King County v. Boeing Co.
    • United States
    • Washington Supreme Court
    • 18 Julio 1963
    ...Thorpe v. Spokane, 78 Wash. 488, 139 P. 221; Trigg v. Timmerman, 90 Wash. 678, 156 P. 846, L.R.A.1916F, 424; D'Ambrosia v. Acme Packing & Provision Co., 179 Wash. 405, 37 P.2d 887. (4) Surface waters are to be regarded as outlaw or common enemy waters, against which every proprietor of land......
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