Harmon v. Gould, 27671.
| Decision Date | 19 October 1939 |
| Docket Number | 27671. |
| Citation | 94 P.2d 749,1 Wn.2d 1 |
| Parties | HARMON v. GOULD et ux. |
| Court | Washington Supreme Court |
Department 2.
Suit by Roy Harmon against Ross Gould and Otta A. Gould, his wife, to enjoin defendants from obstructing ditch which drained water from plaintiff's land across defendant's land, and for damages. From a decree for plaintiff, the defendants appeal.
Reversed with instructions to dismiss.
Appeal from Superior Court, Kitsap County; H. G Sutton, Judge.
Hoof & Winston, of Seattle, for appellants.
Ross W Watt, of Port Orchard, for respondent.
Plaintiff is in possession of the south half, and defendants of the north half, of the northwest quarter of the northeast quarter of section 35, township 25 north of range 1 east, two twenty-acre tracts of rather rough land in Kitsap county. Both tracts at one time belonged to one Hanson, who for many years resided upon the tract now owned by plaintiff. About 1915, Hanson sold the tract now owned by defendants to a Mr. Anderson, who allowed the property to remain vacant.
Plaintiff's tract is somewhat higher than that owned by defendants, and contains about five acres of swamp land. Near the boundary line of the two tracts, but on plaintiff's property, is a natural ridge, which rises somewhat above the adjoining portion of plaintiff's land, and which forms a natural dam, preventing or retarding the flow of water from the swamp across defendants' property. During the period of Mr. Hanson's ownership of both tracts, he excavated a channel through this ridge of land, and dug a ditch across the property now owned by defendants, for the purpose of draining the south twenty. This was done thirty-five or forty years prior to the trial of this action. Prior to 1920, Mr. Hanson and his family ceased to reside upon the south twenty, and subsequent to that time, used the property only for pasture.
During the year 1928, Kitsap county acquired the north twenty by tax foreclosure proceedings, and during the year 1932, the county acquired the south twenty in a similar manner. March 10, 1933, Kitsap county agreed to sell the south twenty to plaintiff, and May 11, 1934, defendants entered into a contract with the county for the purchase of the north twenty. It appears that ever since the parties have been in possession of their respective tracts under their contracts with the county.
Between 1933 and 1936, plaintiff re-excavated the ditch across the the north twenty, and during the month of January, 1939, defendants filled the ditch, to prevent the flow of water from plaintiff's land. Plaintiff thereupon instituted this action, alleging his ownership of the south twenty, defendants' ownership of the north twenty, and that for forty years prior to the institution of the action, a ditch three feet deep and three feet wide had existed across defendants' land, draining a portion of plaintiff's land; that the ditch was an artificial structure, and that plaintiff's right to have the same remain open and clear had been established by prescription, founded on open and hostile possession and use continued for more than seven (later amended to ten) years; that plaintiff had expended time and money in keeping the ditch free of obstructions so that water would flow through the same without interruption; that defendants, during the month of January, 1939, obstructed the ditch, causing water which ordinarily flowed over plaintiff's land to back up and folld plaintiff's property. Plaintiff asked for a decree requiring defendants to clear the ditch, and restraining them from obstructing the same, also asking for damages.
Defendants answered, admitting that an artificial drainage ditch crossed their property. They admitted having obstructed the ditch, but denied the other material allegations of plaintiff's complaint.
The action was tried to the court sitting without a jury, and resulted in findings of fact and conclusions of law in plaintiff's favor, followed by a decree permanently enjoining defendants from obstructing the ditch, and granting plaintiff the right to go upon defendants' property for the purpose of maintaining the ditch in good condition. Plaintiff was granted judgment for one dollar by way of damages, together with costs. From this decree, defendants have appealed.
Appellants assign error upon the court's finding that the ditch is a natural watercourse and a benefit to appellants, and that the water accumulating on respondent's land and running by gravity flow across appellants' property has created an easement in respondent's favor. Appellants also assign error upon the entry of judgment against them, and upon the denial of their motion for judgment in their favor notwithstanding the decision.
Respondent prepared his complaint upon the theory that he had, by prescription, become the owner of the right to use and maintain an artificial drainage ditch across appellants' property. By their answer, appellants admitted the existence of such an artificial ditch, but denied that respondent was the owner of any easement across their land which would permit respondent to use and maintain the ditch. The action was tried upon the issue as presented by the pleadings, but after the cause had been submitted for decision, the trial court, while expressing, in an oral resume of the case, the view that an easement by prescription existed, later filed a written memorandum decision stating the proposition that the ditch was a natural watercourse, and that respondent's right to use and maintain the ditch exists inevitably, because respondent's land is higher than appellants' and is drained through it, the water having obeyed the law of gravitation during time beyond the memory of man. The court also stated that the situation would be entirely different if in fact the ditch were not a natural watercourse. The court found the ownership of the land to be as alleged, and, by finding III:
'That defendants, at the time of their purchase of said property, knew of the existence and purpose of said watercourse, and that any obstruction placed in said watercourse by the defendants will result in flooding a portion of the property of the plaintiff, some five acres, and that said area so flooded is valuable agricultural land.
'That the easement created by said watercourse is a natural one formed by water seeking its own level.'
Respondent argues that, as appellants did not except to this finding, they cannot challenge it for the first time on appeal. Under Rule XI, of the Rules of Practice, 193 Wash. 48-a, exceptions to findings need not be taken, and appellants may challenge Before this court the finding of which they complain.
By the prayer of his complaint, respondent sought merely a decree requiring appellants to clear the obstructions from the ditch, and restraining them from obstructing it in the future. He did not ask that his title to an easement across appellants' property be decreed and quieted, but his complaint would support such relief, if justified by the law and the evidence. Appellants in their answer simply prayed for the dismissal of the action and for their costs.
The decree which the trial court entered required appellants to clear the ditch, and permanently restrained them from in any manner interfering with the free flow of water therein. The decree also awarded respondent the right to enter upon appellants' property whenever necessary for...
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...v. Wilson, 125 Ark. 364, 188 S.W. 1160 (1916); Smith v. City of Los Angeles, 66 Cal.App.2d 562, 153 P.2d 69 (1944); Harmon v. Gould, 1 Wash.2d 1, 94 P.2d 749 (1939). The slough system existed in a natural state long before the defendant placed any structures in the It may be that the trial ......
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