Ferry v. City of Seattle
| Decision Date | 03 January 1922 |
| Docket Number | 16383. |
| Court | Washington Supreme Court |
| Parties | FERRY et al. v. CITY OF SEATTLE. |
Appeal from Superior Court, King County; Boyd J. Tallman and Clay Allen, Judges.
On rehearing. Former opinion reversed, and judgment of trial court affirmed.
For former opinion, see 200 P. 336.
Walter. F. Meier and Edwin C. Ewing, both of Seattle, for appellant.
C. H Hanford, Kerr McCord & Ivey, John F. Murphy, and Samuel Hill all of Seattle, for respondents.
Upon a reargument of this case the court has decided that the opinion of the department on the prior hearing as it appears in Ferry v. City of Seattle, 200 P. 336, is incorrect, and that the judgment of the trial court should have been affirmed.
A reference to the prior opinion is sufficient to give an understanding of the facts of the case. Without determining whether Volunteer Park has been dedicated by declaration use, and the expenditure of public money thereon to exclusive park purposes, so that it cannot now be used for any other purpose, and without determining whether exclusive jurisdiction has been placed in the park department rather than in the city council, and leaving undetermined the question of whether the respondents are entitled to an injunction against the appellant based on the impairment of the beauties of the park leaving also undetermined the question whether the proposed reservoir might be contaminated by its proximity to a large burial ground, we will pass to the question which determines the respondents' rights to an injunction.
The respondent property owners complain against the construction of this reservoir in Volunteer Park on a side hill which extends westerly a considerable distance, with its 56-foot embankment as the only protection between their homes and the mass of water impounded behind it, for the reason that they claim its existence will constantly menace their lives and property. It is true that expert witnesses called on behalf of the city testified that a reservoir constructed in this place and manner would present no such peril as the respondents picture, and the city points to another reservoir in this park, which has existed some 20 years and never has occasioned damage to adjacent property. The old reservoir, it must be remembered, is small compared with the proposed one and its westerly side is protected by an embankment only about one-third as high as would be that of the new reservoir. But, at that, the fact that the old reservoir has occasioned no admage is far from conclusive proof that a new one constructed under different conditions would be equally as harmless. On the other hand, experts on behalf of the respondents testified that the proposed reservoir would continually threaten danger. With such a record before us it is difficult to say that the respondents have not a reasonably grounded apprehension.
The test as to whether a structure of the proposed character is to be declared a nuisance turns on whether the complaining property owners are under a reasonable apprehension of danger, and the question of the reasonableness of the apprehension turns again, not only on the probable breaking of the reservoir, but the realization of the extent of the injury which would certainly ensue; that is to say the court will look to consequences in determining whether the fear existing is reasonable. For instance, if the reservoir were being built in some place where, should it break, the resultant damage would be merely to property which could adequately be recompensed, the court would be more apt to hesitate in declaring it a nuisance than where, should a break occur, not only property of immense value would be destroyed, but many lives would be lost as well.
It cannot be said that the property owners dwelling in the shadow of the 56-foot embankment would not live under a reasonable apprehension, based upon the testimony in this case, that sooner or later they and their property would be destroyed by this contemplated reservoir. Reservoirs built upon the expert advice of city engineers, and sealed with the approval of other experts called in to substantiate that advice, have been known to not hold water. All the experts agree that there will be an inevitable leakage, to some extent, in the proposed reservoir. With this advice of these experts and with a general knowledge of the contour of the ground, the nature of the soil, the prevalence of slides in similar situations in Seattle, and the disasters that have happened from the bursting of impounded waters, the respondents have as a result of all these things, a fear which interferes with their comfortable enjoyment of life and property, and allege that the construction of the reservoir annoys, injures, and endangers their comfort, repose, and safety, and renders them insecure in life and the use of their property. If they have reason for this attitude, they must succeed in this action. If this situation supports a reasonable expectation that disaster may happen, and such expectation leads to a depreciation in the value of adjoining properties, the structure will be considered a nuisance.
This court has already held in Everett v. Paschall, 61 Wash. 47, 111 P. 879, 31 L. R. A. (N. S.) 827, Ann. Cas 1912B, 1128, that the building of a tuberculosis sanitarium in the residential section of a city will be enjoined as a nuisance where its construction creates fear and dread of disease, which will result in a depreciation of the value of adjacent property, and where it will affect the mind, health, and nerves of the occupants thereof. Sections 943 and 8309, Rem. Code, describe as a nuisance anything which is injurious to the health, or which is an obstruction to the free use of property, so as essentially to...
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