Downie v. City of Renton, 22624.

• Decision Date: 24 March 1932
• Docket Number: 22624.
• Citation: 9 P.2d 372,167 Wash. 374
• Parties: DOWNIE v. CITY OF RENTON.
• Court: Washington Supreme Court

9 P.2d 372

167 Wash. 374

DOWNIE v. CITY OF RENTON.

No. 22624.

Supreme Court of Washington, En Banc.

March 24, 1932

Appeal from Superior Court, King County; Malcolm Douglas, Judge.

On rehearing.

Former opinion reversed, and decree of lower court reversed and cause remanded, with directions.

For former opinion, see 162 Wash. 181, 298 P. 454.

Shorett Shorett & Taylor, of Seattle, for appellant.

Agnes N. Richmond, of Renton, and Hyland, Elvidge & Alvord, of Seattle, for respondent.

BEELER J.

The single question to be determined is whether the city of Renton acquired a right by prescription to discharge refuse water from its reservoir onto and across the lands of the appellant. The trial court found that the city had acquired such right, and denied the appellant injunctive relief and entered a decree dismissing his action, from which he prosecutes this appeal.

The facts are not in serious dispute. But since we have reached a conclusion different from that of the trial court a detailed statement of the facts is deemed essential.

In 1908 the respondent constructed a concrete reservoir, of a capacity of 500,000 gallons, approximately one mile south of its corporate limits to be used in conjunction with its municipal water system. Two water mains, one 10 inches and the other 14 inches in diameter, are attached within a few feet of the base of the reservoir for the purpose of bringing water to the city to be used for domestic purposes; while a waste pipe 10 inches in diameter is attached to its base and used to discharge the refuse water at such times as the reservoir is scrubbed, cleaned, and washed out. The waste pipe extends in an easterly direction a distance of 600 feet and discharges the water into a natural gully. By force of gravity the water then flows eastward some 450 feet, and runs into a natural gulch, through which a small stream of pure water, fed by springs, flows in a northwesterly direction and crosses the appellant's land. The waste water after entering the gulch likewise flows in a northwesterly direction. The distance from the point where it enters the gulch and the point where the gulch enters the appellant's land is approximately 1,000 feet.

The appellant purchased his tract of land in 1921, and has continuously resided thereon. The tract is slightly in excess of 2 acres and is 190 feet wide at its northerly boundary 270 feet wide at its southerly boundary, and extends north and south a distance of about 485 feet. The gulch crosses it lengthwise. The westerly boundary of the tract skirts along a county road. At the time of purchase, the land was unused unimproved, unoccupied, unfenced, and covered with underbrush and second growth trees. In 1928, he constructed a concrete dam near the northerly boundary of the tract. This dam is approximately 18 feet high at its center and extends across the entire width of the gulch (approximately 90 feet), thereby creating an artificial pond of about one-third of an acre or 15,000 square feet in extent, which was stocked with 25,000 fish. The difference in elevation between the base of the reservoir and the pond is approximately 110 feet.

From 1908 to 1929, at such times as the water became contaminated and unfit for human consumption by reason of the presence of bacillus coli, and the adherence of algae on the side walls and the accumulation of sediment on the floor of the tank, the city would scrub and clean the reservoir. This was done usually once a year. The water would be drained to within three or four feet of the bottom of the tank through the service pipes, the side walls washed and scrubbed, the sediment carried away in buckets, and the waste or contaminated water, some thirty-five or forty thousand gallons, drained through the waste pipe and discharged onto and across the appellant's land. Ordinarily this would require from two to two and a half hours. During September, 1929, after the respondent had scrubbed and washed down the side walls, the waste or contaminated water was drained and discharged into the appellant's pond, and as a result a great deal of débris, and much mud was washed or flushed into the pond making the water very muddy and dirty so that it had the appearance of being 'soupy.'

Prescriptive rights are not favored by the law.

'And as a prescriptive right, acquired by one person, is a corresponding loss or forfeiture of right by another, and, further as the law does not favor forfeitures, it is absolutely essential that all of the elements prescribed by law as necessary to constitute a permanent valid claim by adverse possession amounting to prescriptive right should be present.' Kinney on Irrigation and Water Rights, vol. 2, p. 1876.

Under the statute a right by prescription may be acquired within ten years. Hence, if the respondent acquired a prescriptive right to discharge the refuse water from its reservoir into the gulch and thence onto and across the appellant's lands, such right was acquired during the period when the land was owned by his immediate grantor; that is, between 1908 and 1921. But throughout that entire period the appellant's grantor did not reside upon the land. From 1908 to 1921, the land was unused, unoccupied, unimproved, and unfenced, and substantially in a wild state covered with second growth trees and underbrush. The undisputed evidence shows that appellant's grantor had no actual knowledge of the adverse user by the city. To acquire an easement by prescription the owner must know of and acquiesce in the adverse user, or the use must be so open, notorious, visible, and uninterrupted that knowledge and acquiescence will be presumed.

'All the authorities agree that, in order to bar the true owner of land from recovering it from an occupant in adverse possession and claiming ownership through the operation of the statute of limitations, the possession must have been, for the whole period prescribed by the statute, actual, open, visible, notorious, continuous and hostile to the true owner's title and to the world at large.' 1 R. C. L. 686.

'No prescriptive right to the use of water can be claimed as against one who had no knowledge or notice of the claim or of the fact that his rights were being invaded; but notice is presumed where the works or operation of the adverse claimant are matter of common notoriety or so conspicuous that they would not escape the attention of an ordinarily vigilant man.' 40 Cyc. 698.

The burden of proving the existence of a prescriptive right is placed upon the one who is benefited thereby. Skansi v. Novak, 84 Wash. 39, 146 P. 160; People's Savings Bank v. Bufford, 90 Wash. 204, 155 P. 1068.

The inquiry then is whether the asserted adverse user by the city was of a sufficiently open, notorious, and hostile character so as to charge the appellant's predecessor in interest with presumptive knowledge or constructive notice of the isolated acts of user. The word 'notorious' is defined by Webster as 'generally known and talked about by the public; usually believed to be true; manifest to the world; evident.'

"Notorious,' in the sense here used, has been defined by this court to mean 'generally known and talked of; universally recognized; conspicuous; well, widely, or commonly known." Spicer v. Spicer, 249 Mo. 582, 155 S.W. 832, 836, Ann. Cas. 1914D, 238.

'The words 'open and notorious possession,' as applied to the adverse holding of land by another, mean that the disseisor's claim of ownership must be evidenced by such acts and conduct as are sufficient to put a man of ordinary prudence on notice of the fact that the land in question is held by the claimant as his own. * * * It is, therefore, essential in all cases that the owner shall have notice to that effect. If he has actual notice that will, of course, be sufficient in itself. Where, however, there has been no actual notice, it is necessary to show that the possession of his disseisor was so open, notorious, and visible, as to warrant the inference that the owner must, or should, have known it; otherwise a mere trespass might be evidence of ouster.' 1 R. C. L. § 14, pp. 700, 701.

As we have heretofore observed, the property from 1908 to 1921 was unfenced, unused, and unimproved, a wild stretch of acreage almost as nature left it. Neither the appellant's vendor nor the appellant himself when he became the purchaser could have discovered by passing over the land any indication of adverse user, and the acts of user relied upon by the respondent were of such a nature as to negative the very idea of presumptive notice. It is quite clear from the record that the first actual notice the appellant obtained that the city was discharging the waste water from this reservoir into the gulch was in May, 1928, soon after the dam was completed. The following August he complained and remonstrated with the city and insisted that it cease from further continuing to so divert its refuse water. Nor was there anything about the manner in which the reservoir was claimed or drained that would...