Drainage Dist. No. 2 of Snohomish County v. City of Everett

• Decision Date: 24 January 1933
• Docket Number: 24082.
• Citation: 171 Wash. 471,18 P.2d 53
• Parties: DRAINAGE DIST. NO. 2 OF SNOHOMISH COUNTY et al. v. CITY OF EVERETT.
• Court: Washington Supreme Court

18 P.2d 53

171 Wash. 471

DRAINAGE DIST. NO. 2 OF SNOHOMISH COUNTY et al. v. CITY OF EVERETT.

No. 24082.

Supreme Court of Washington

January 24, 1933

Department 1.

Appeal from Superior Court, Snohomish County; Ralph C. Bell, Judge.

Action by Drainage District No. 2 of Snohomish County and the Commissioners thereof against the City of Everett. From a judgment for damages, defendant appeals, and, from a judgment denying an injunction, plaintiff appeals.

Affirmed on plaintiff's appeal, and reversed and remanded, with direction, on defendant's appeal.

J. Y. Kennedy and S. J. Brooks, both of Everett for appellant.

Joseph H. Smith and Newton & Newton, all of Everett, for respondents.

MILLARD J.

A dam owned and maintained on its own property by the city of Everett for the purpose of impounding the waters of Woods creek for use of the city, was destroyed by the city. Plaintiff, alleging its drainage system was damaged by sediment and silt deposited therein by the abandoned waters of the creek, brought an action to recover therefor. The trial of that cause resulted in verdict in favor of the plaintiff. From the judgment entered on the verdict, the defendant has appealed. By a second cause of action the plaintiff sought to enjoin the city from permitting the waters of Woods creek to flow through the old channel, from which it had been diverted when the impounding dam was constructed, to the Snohomish river. The equitable relief sought by plaintiff was denied. From that judgment the plaintiff has appealed.

The Everett Water Company acquired, by judicial decree in 1901 the right to perpetually divert and impound, for the use of the city of Everett, the waters of Woods creek, a stream located in Snohomish county. The appellant city is the successor in interest of that water company. At that time the course of Woods creek was easterly, northerly, and thence southerly and easterly to Mootz lake. From Mootz lake (which was a part of Hardscrabble slough) the water from the creek flowed to the north and northeasterly through Hardscrabble slough and emptied into the Snohomish river. The water flowing through this natural channel approximated two and one-half million to four million gallons daily. The water company constructed two impounding dams on land owned by the city. One dam was used for the intake of the pipe line, and the smaller dam, farther up Woods creek, was used as a settling reservoir. The two reservoirs impounded all of the waters of Woods creek from that point upstream, and all of the water, except such as ran over the spillway during a heavy rain, was used for domestic purposes by the city of Everett and by its lessee, Lowell water district. Such water as escaped over the spillway followed the natural channel and flowed eastward into Mootz lake, which was, as stated above, a part of Hardscrabble slough.

There was testimony that, after the city's diversion and appropriation of the waters of Woods creek, there ceased to be any water in Hardscrabble slough immediately north of Mootz lake to a point approximately three-fourths of a mile north thereof; that the owners of the land on each side of the slough filled in that portion of the slough three-fourths of a mile in length just described; that ever since those landowners, or their successors in interest, have used that portion of the old bed of Hardscrabble slough for agricultural purposes; and that no water has flowed through that channel since some time prior to 1905. About the same time the landowners dug a drainage ditch from Mootz lake easterly approximately three-fourths of a mile and thence northerly one-fourth of a mile to the Snohomish river. In 1911 the property owners (the district comprised about 2,000 acres) formed a drainage district under the drainage laws of the state. A complete drainage system was installed. It was deemed unnecessary to take into consideration the former flow of Woods creek through Hardscrabble slough on account of the appropriation and diversion of those waters by the city in 1901. The district utilized Hardscrabble slough and Mootz lake for storage purposes. The ditch, referred to above, running from Mootz lake, was improved by an intersecting ditch running north along a railroad right of way and emptying into Hardscrabble slough. A ditch, known as the Rucker ditch, ran north and south and tapped the extreme easterly end of the ditch which extended from Mootz lake easterly for three-fourths of a mile and thence northerly one-fourth of a mile to the Snohomish river. The Rucker ditch emptied into the Snohomish river. The outlets of the Rucker ditch and Hardscrabble slough were controlled by floodgates operated so that when the tide ebbed the water would run out, and as the tide flowed in the gates would automatically close and keep out the tide water.

In July, 1931, the city decided to abandon the water system. The water in the reservoir was allowed to gradually escape and flow down the natural bed of the stream. The waters flowed down into Mootz lake, the original course of the waters of Woods creek prior to their diversion and appropriation in 1901 by the city, thence easterly into the drainage ditches of the respondent. Two weeks after the reservoir had been emptied the city opened the dam to allow the waters naturally flowing in the Woods creek stream to pass through. That was done July 23, 1931. Alleging the escaping waters deposited sediment and silt in Mootz lake and the drainage ditches, to its damage, respondent filed a claim therefor with the appellant. The claim was rejected, and the two causes of action were instituted with the result recited above.

Appellant complains of the refusal of the court to give to the jury six requested instructions. None of the requested instructions is set forth in the brief. An assignment of error upon an instruction is not entitled to consideration where it does not set out the instruction in full, as required by Rule of Court VIII, § 2. Lund v. Seattle, 163 Wash. 254, 1 P.2d 301. We also note that the exception to each instruction was: 'Defendant excepts to the refusal of the court to give defendant's proposed instruction for the reason that same is a correct statement of the law and not covered by any other instruction given by the court in said action.'

The exception was general, and did not meet the requirement of the rule (Rule VI, 159 Wash. LXI) that the exception be sufficiently specific to apprise the court of the points of law or questions of fact in dispute. On that ground, also, the assignment is not entitled to consideration. Helf v. Hansen & Keller Truck Co., 167 Wash. 206, 9 P.2d 110; Kelley v. Cohen, 152 Wash. 1, 277 P. 74; Davis v. North Coast Transportation Co., 160 Wash. 576, 295 P. 921.

We also observe that respondent's brief is faulty. In the statement of the case by respondent, no reference is made to the statement of facts or to the abstract. This is a violation of § 1, rule VIII of this court, which will be found at page XLIII of vol. 159 of the Washington Reports. The rule, so far as material, reads as follows: 'Briefs * * * shall contain a clear statement of the case so far as deemed material by the party, with reference to the pages of the abstract for verification in all instances where an abstract is required. In other instances, the reference shall be to the original record.'

Appellant contends that on the first cause of action the court erred in not granting the motion for judgment notwithstanding the verdict. It is argued that from time immemorial Woods creek has outletted into Mootz lake and thence north to Hardscrabble slough into the Snohomish river; that it was the duty of the respondent district, in the construction of its system of drainage ditches, to have planned its system accordingly; that the appellant had the lawful right to construct the dam as it chose and to permit the waters of the stream to flow through the opening into the channel provided for it by nature; and that the 'plaintiffs knew or in the exercise of a reasonable discretion should have known that their district was so situated by nature that it would always have to bear the burden or providing an outlet for the waters of Woods Creek as it was accustomed to flow in obedience to the law of gravity.'

Respondent contends that the diversion and appropriation by appellant in 1901 of the waters of Woods creek was a perpetual appropriation; and that the respondent and other lower property owners 'had a full legal right to assume that such appropriation would continue as a perpetuity; that the respondent drainage district was under no legal obligation to construct at the cost of the land within the district any larger drainage system than was necessary to care for the normal flow of water and drainage at the time the system was installed and was not required to even anticipate the abandonment of the Woods Creek system.'

In brief, respondent insists that the artificial condition (diverting the water from its original channel and impounding it), created and maintained by the appellant for thirty years, constituted a permanent change, and respondent improved its property in reliance on a continuance of that condition; hence respondent is entitled to a continuance of that artificial condition. Appellant counters that the respondent has no right to compel the appellant to maintain its dam for the benefit of the respondent; that the right of the appellant was dominant; and that of the respondent was servient to that end.

The right to divert and impound the waters of Woods creek for municipal purposes was lawfully acquired by appellant in 1901. So long as appellant maintained the dam in such a manner as not to injuriously interfere with the legal rights of others below and above...