Diking Dist. No. 2 of Pend Oreille County v. Calispel Duck Club
| Decision Date | 03 November 1941 |
| Docket Number | 27916. |
| Citation | 11 Wn.2d 131,118 P.2d 780 |
| Parties | DIKING DIST. NO. 2 OF PEND OREILLE COUNTY et al. v. CALISPEL DUCK CLUB. |
| Court | Washington Supreme Court |
Department 1.
Action by Diking District No. 2 of Pend Oreille County, Wash., a municipal corporation, and others against the Calispel Duck Club, a corporation, to enjoin the maintenance of a dam. From a judgment for the defendant, plaintiffs appeal.
Affirmed.
Appeal from Superior Court, Pend Oreille County W. M. Nevins, Judge.
R. L Edmiston, of Spokane, for appellants.
R. E Lowe, of Spokane, for respondent.
This is an action to enjoin the maintenance of a dam.
Respondent is the owner of a 1500 acre tract of land in the valley of the Calispel river, in Pend Oreille county, Washington on which is situated a body of water called Calispel lake. Respondent, since 1907, has maintained a dam across the outlet of the lake, and has used the lake as a wild fowl resort and for the purposes of a duck hunting club. The property represents a capital outlay in excess of $70,000, and an even greater sum has been spent on its upkeep during the more than thirty years of its existence. Litigation involving the dam has been Before this court on two previous occasions. McClure v. Calispell Duck Club, 157 Wash. 136, 288 P. 217; Murphy v. Calispel Duck Club, 163 Wash. 366, 300 P. 1060.
The land in the valley is very flat, sloping gently--less than one inch to the mile--toward the Pend Oreille river. Calispel river, which is ordinarily little more than a creek, empties into the Pend Oreille some six miles below respondent's dam.
Prior to a certain diking improvement brought about by appellant Diking District No. 2 in 1912, all of the land in the valley was annually inundated by flood waters of the Pend Oreille river which overflowed its banks at the lower end of the valley. The flood waters came down in June and July from the headwaters of the river in Montana and Canada.
Appellant was organized in 1911 for the purpose of constructing a culvert underneath the tracks of the Idaho Washington Northern Railroad Company which are laid upon a high fill crossing the lower end of the district. By equipping the culvert with gates, the fill of the railroad company could be used as a dike to keep the flood waters of the Pend Oreille from backing up into the valley of the Calispel. This culvert was completed in 1912.
When the gates of the culvert are closed, the waters of the Calispel river and tributary streams, pent up in the district, inundate the entire valley, sometimes to the extent of ten feet, but not to the extent that it was inundated prior to the construction of the culvert and gates. During these periods, respondent's dam is under water. When the waters in the Pend Oreille river recede to a point below the level of the waters in the district, the gates of the culvert are opened, and the waters in the district flow out through the culvert and are carried away with the waters of the Pend Oreille. The lands in the valley are also inundated during the local spring freshets in the Calispel river, which usually occur in March and April.
A large part of the lands of the district are valuable for a wild hay grass, called silvertop, which grows thereon in considerable abundance, and which is said to be almost as good as timothy or alfalfa. This grass grows under the water and matures in a month or two after the water has run off the land.
The case was tried in October, 1932, but was not decided until July, 1939. On July 5, 1939, the court entered a memorandum opinion finding that the dam did not encroach upon any function of the diking district, and on August 31, 1939, having overruled appellant's motion for judgment in its favor, entered a judgment dismissing the suit.
Appellant's first contention is that a new trial should have been granted because of the length of time that elapsed between the trial of the cause and the rendition of the judgment. It appears that, while the case was under submission, a term of office of the trial judge expired after his re-election to the same office. Contention is made that, by reason of the expiration of the judge's term of office after the trial and Before the rendition of judgment, the judgment is void. We think there is no merit in this contention. The same contention was made in Haag v. Lawrence Lumber Co., 88 Ind.App. 432, 164 N.E. 414, and also in Gartlan v. C. A. Hooper & Co., 177 Cal. 414, 170 P. 1115, 1121. It was overruled in each case. In the latter case, the court said:
That is the case here, and, since appellant has made no showing that upon a new trial any new or different evidence could be submitted, a reversal of the judgment would merely permit a new trial upon the same evidence which has already been submitted to the court.
Appellant's next contention is that the evidence shows that the dam is a nuisance, and that it has the right to maintain an action for its abatement. The judgment of the trial court was apparently based upon the ground that the dam did not encroach upon any function of the diking district. In its memorandum opinion, the court states: ...
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Strand v. State
... ... 2d 108] Appeal from Superior Court, Skagit County; Hobart ... S. Dawson, judge ... and Range and running to a point which is two (2) ... chains westerly measured along said ... Without diking, the whole area would be under water at high ... $1,400, which they used mainly as a duck club. They made ... other improvements at ... Commercial Waterway Dist. No. 1 v. King County, 197 ... Wash. 441, ... Diking Dist. No. 2 v. Calispel Duck Club, 11 Wash.2d ... 131, 118 P.2d ... ...
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§ 19.2 - Private Nuisance
...nuisance action for sewer line clogged by tree roots on adjoining land). Diking Dist. No. 2 of Pend Oreille Cnty. v. Calispel Duck Club, 11 Wn.2d 131, 118 P.2d 780 (1941) (finding dam that did not interfere with rights of others to use stream not a nuisance). Zey v. Town of Long Beach, 144 ......
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Table of Cases
...Diehl v. WWGMHB, 153 Wn.2d 207, 103 P.3d 193 (2004): 15.9(2), 16.3(2) Diking Dist. No. 2 of Pend Oreille Cnty. v. Calispel Duck Club, 11 Wn.2d 131, 118 P.2d 780 (1941): 19.2(12)(e) Ditty v. Freeman, 55 Wn.2d 306, 347 P.2d 870 (1959): 3.3(7) Dontanello v. Gust, 86 Wash. 268, 150 P. 420 (1915......