Harkoff v. Whatcom County
| Decision Date | 13 March 1952 |
| Docket Number | No. 31896,31896 |
| Citation | 40 Wn.2d 147,241 P.2d 932 |
| Court | Washington Supreme Court |
| Parties | HARKOFF et al. v. WHATCOM COUNTY. |
Tom A. Durham, Jack Rowles, Bellingham, for appellant.
Wright & Wright, Seattle, for respondents.
This action was originally instituted by John Harkoff, Jr., against Whatcom county to recover a judgment for damages arising out of injury to his property as a result of flooding by the overflow of water from a roadside ditch maintained by the county. The other respondents claiming to suffer like damage intervened. The court awarded damages and injunctive relief.
The properties of respondents are located in an area referred to as a watershed. This area commences north of the Canadian line, is several miles in width and the drainage is southerly and southwesterly. Much of the natural drainge water reached Fishtrap creek, which runs in a southwesterly course and is located some distance south of the properties of respondents. Some years ago Whatcom county constructed a system of public highways with roadside ditches and necessary culverts. Three of the highways ran in a northerly and southerly direction and four of them in an easterly and westerly direction. The two highways mostly concerned in the litigation intersect and are known as the Depot road and the Blaine-Sumas road, the former running northerly and southerly and the latter easterly and westerly. The Blaine-Sumas road and that part of the Depot road south thereof are state highways. The other highways are county roads. The properties of the respondents abut on the east side of the Depot road and lie south of the Blaine-Sumas road.
In 1945 appellant improved roads in the drainage area and enlarged some of the roadside ditches by making them deeper and wider, particularly those on each side of the Depot road. The effect of such improvement was to substantially increase the amount of drainage water to be carried by the ditches. A portion of the drainage ditch on the west side of the Depot road and north of the Blaine-Sumas road was back-filled and the water carried by that ditch was diverted by a culvert to the ditch on the east side of the Depot road. Other changes in ditches and culverts made in about 1948 increased the drainage water flowing in the ditches on each side of the Depot road. In 1950 a drainage ditch was constructed by a property owner having property north of the Blaine-Sumas road. Appellant allowed the water to be emptied into the ditches running along the Depot road, and deepened and widened the ditch on the west side thereof. The result of the augmented capacity of the ditches along the Depot road and the changes made in the location of the culverts was to increase the flow of drainage water along the east side of the Depot road and cause that ditch to overflow onto the lands of respondents and damage their lands, buildings and crops.
The findings of fact made by the court go into much detail, but we consider the foregoing contains a sufficient portrayal of the situation to enable us to reach our conclusion as to the applicable rules of law.
The testimony took quite a wide range and we find much conflict therein. The record contains several maps, photographs and other documentary evidence. The trial judge viewed the premises.
Several assignments of error are directed to the findings of fact made by the court and we are requested to reject some of them. This would require a conclusion on our part that such findings were not supported by a preponderance of the evidence. This is a type of case where physical facts, as they would appear to one making an inspection of the roads, ditches, culverts and drainage area, must be given much weight, and in many respects be controlling. The trial judge, having had the witnesses before him and the opportunity to weigh their testimony in the light of his inspection, was in a much better position to determine questions of testimonial knowledge and the weight to be given the testimony he heard, as well as the evidentiary value of exhibits, than we are by an examination of the record. We are satisfied that the findings of fact made by the court are supported by a preponderance of the evidence and are not inclined to disturb them.
The action has been brought and maintained by the respondents upon the theory that the appellant has damaged their properties in violation of Art. I, § 16 of the constitution which provides that no private property shall be taken or damaged for public or private use without just compensation being made. When the appellant constructed and subsequently made improvements to its road system, it necessarily changed the course of the natural drainage of surface water. It had the right to construct and at times enlarge roadside drainage ditches to protect the roads and to put needed culverts under them. In so doing, however, it was its duty to construct them of sufficient capacity to carry the drainage waters impounded thereby and in such a manner as not to overflow onto the property of others.
A breach of such a duty with resultant damage to property brings the property owner affected within the protection afforded by Art. I, § 16 of the constitution. Wendel v. Spokane County, 27 Wash. 121, 67 P. 576; Whiteside v. Benton County, 114 Wash. 463, 195 P. 519; Ulery v. Kitsap County, 188 Wash. 519, 63 P.2d 352. Other cases adhering to and applying the rules of law pronounced in the foregoing cases might be cited, but we consider those referred to are sufficient to support and illustrate the views we have expressed.
When respondents sought the protection afforded by the constitution, they were not required to present or file any claim against appellant as provided by § 4077, Rem.Rev.Stat. Knapp Brick & Tile Co. v. Skagit County, 4 Wash.2d 152, 102 P.2d 679; Boitano v. Snohomish County, 11 Wash.2d 664, 120 P.2d 490.
The appellant complains about the measure of damages used by the court. The court found that 2.3 acres of respondent Harkoff's land had been depreciated in value to the extent of $690, and the value of his certified strawberry plants destroyed was $3,365.22; that respondents Waldemar had suffered damages to their house and the cost of repairs would be $200; also the cost of rebuilding a dike would be $300; that the house and lot of respondent Donald Bonsen had been damaged, and the cost of repairing the house and replacing the filled dirt in the yard would be the sum of $2,200; that the barn on the property of respondent Chris Bonsen had been damaged, and the cost of repairs would be...
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Thompson v. King Feed & Nutrition Service, Inc.
...the land itself the next step is to apply the temporary/permanent rule with its associated measures of damages. Harkoff v. Whatcom County, 40 Wash.2d 147, 241 P.2d 932 (1952), articulated this standard in the context of a suit for harm to real property from the flooding of the county's road......
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Phillips v. King County
...Rains v. Department of Fisheries, 89 Wash.2d 740, 748, 575 P.2d 1057 (1978) (Wright, C.J., dissenting) (citing Harkoff v. Whatcom County, 40 Wash.2d 147, 241 P.2d 932 (1952); Boitano v. Snohomish County, 11 Wash.2d 664, 120 P.2d 490 (1941); Decker v. State, 188 Wash. 222, 62 P.2d 35 The aut......
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Gaines v. Pierce County
...causes damage to adjacent land. Colella, 72 Wash.2d at 391, 433 P.2d 154, quoting Ronkowsky v. Tacoma, supra; Harkoff v. Whatcom County, 40 Wash.2d 147, 151, 241 P.2d 932 (1952); Island County v. Mackie, 36 Wash.App. at 393, 675 P.2d 607. Because government has no common law duty to drain s......
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Pepper v. J.J. Welcome Const. Co.
...a reasonable time pending such restoration. Colella v. King Cty., 72 Wash.2d 386, 393, 433 P.2d 154 (1967), citing Harkoff v. Whatcom Cty., 40 Wash.2d 147, 241 P.2d 932 (1952); Olson v. King Cty., 71 Wash.2d 279, 293, 428 P.2d 562 (1967). 11 Thus, in Washington the proper measure of damages......