Gray v. Ramsay

• Decision Date: 01 October 1921
• Docket Number: 16340.
• Citation: 117 Wash. 255,200 P. 1074
• Parties: GRAY et al. v. RAMSAY et al.
• Court: Washington Supreme Court

200 P. 1074

117 Wash. 255

GRAY et al. v. RAMSAY et al.

No. 16340.

Supreme Court of Washington

October 1, 1921

Department 2.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Action by L. G. Gray and others against Claude C. Ramsay, and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Fred C Brown, Malcolm Douglas, Howard A. Hanson, and Bert C. Ross all of Seattle, for appellants.

C. H Winders, Joseph C. Sherman, and Arthur E. Simon, all of Seattle, for respondents.

MAIN J.

The plaintiffs brought this action to restrain the defendants, as commissioners of King county, from proceeding with the organization of a drainage district, the plans of which contemplated an open ditch in the highway upon which the property of the plaintiffs abutted. The trial court sustained the right to injunctive relief upon the ground that the commissioners had no right to construct in the highway a longitudinal ditch. From the judgment entered the defendants appeal.

By section 29 of chapter 130 of the Laws of 1917, the right was given to construct drainage ditches and cross highways, and a provision was made for apportioning of the costs. There was no provision in this law for longitudinal ditches. After the case was tried, and the appellants' opening and the respondents' answering briefs had been written, the Legislature, at its 1921 session, in section 3 of chapter 160, enacted 'That drainage ditches of any drainage improvement district, heretofore or hereafter created, may be constructed and maintained along any public highway, street, alley or road within the limits of any drainage district.'

The Legislature, by that act, gives the right, so far as it had the power, to construct longitudinal ditches. The real question in the case is whether such a ditch as is here contemplated, when it is constructed would be an additional burden or servitude upon the fee, which, under the holdings of this court, is in the abutting property owner, which is subject to an easement in the public. Schwede v. Hemrich Bros. Brewing Co., 29 Wash. 21, 69 P. 362; Gifford v. Horton, 54 Wash. 595, 103 P. 988.

The ditch which the appellants proposed to construct was approximately 9 miles in length, open and unguarded, with an average width of 10 feet and an average depth of 5 feet. Approximately 5 miles of the ditch as contemplated by the specifications would be constructed longitudinally in roads and streets upon which the property of the respondents abutted. Under the Constitution (article 1, section 16) private property cannot be taken or damaged for public or private use without just compensation having been first made. The purpose of the ditch was to drain lands, the titles to which were in private ownership. If the construction of such a ditch upon the highway constitutes an additional burden and servitude upon the fee owned by the respondents, then it could not be constructed without first having acquired the right to do so by condemnation or otherwise. The question as to when the construction of drains or ditches in a highway for the purpose of reclaiming private property constitutes an additional burden is one of some difficulty. In 1 Elliott on Roads and Streets, § 486, it is said:

'Suburban roads may be used for public drainage purposes; that is, for draining other public ways. Whether they could be used without additional compensation to the owner of the fee, for the purpose of constructing drains for reclaiming private property, is a question of no little difficulty, even if such drains are a public benefit. We are inclined to the opinion that such a use cannot be made of them without compensation, for the only purpose for which they were set apart is that of a highway for travel, while the whole interest and profit in the land remains in the owner of the

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