Harvey v. Northern P. Ry. Co.

• Decision Date: 26 June 1911
• Citation: 116 P. 464,63 Wash. 669
• Parties: HARVEY v. NORTHERN PAC. RY. CO.
• Court: Washington Supreme Court

116 P. 464

63 Wash. 669

HARVEY v. NORTHERN PAC. RY. CO.

Supreme Court of Washington, En Banc.

June 26, 1911

Appeal from Superior Court, Snohomish County; W. W. Black, Judge.

Action by Noble G. Harvey against the Northern Pacific Railway Company. From a judgment of dismissal, plaintiff appeals. Affirmed.

John W Miller and Robert McMurchie, for appellant.

Geo. T Reid, J. W. Quick, and L. B. Da Ponte, for respondent.

CROW, J.

This action was commenced to recover damages resulting from an alleged discharge of water upon plaintiff's lands. The trial judge sustained a demurrer to the amended complaint. Plaintiff refused to plead further, and has appealed from an order of dismissal.

The following plat is attached to the amended complaint, and by proper allegations made a part thereof:

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The amended complaint alleges: 'That ever since the 15th day of October, 1892, the plaintiff has been and now is, the owner and in possession of the following described real estate, situated in the county of Snohomish state of Washington, to wit: (description of 20 acres). That about five hundred (500) feet to the east of said described tract of land is the right of way of the defendant, over which there is built a railroad, now, and at the time of the damage hereinafter complained of, owned by the defendant. That the map or plat hereto attached, marked 'Exhibit A' and made a part thereof, correctly shows the location of the lands of the plaintiff hereinbefore described, the location of the railroad of the defendant, the location of the railroad owned by the Great Northern Railroad Company, and the location of the Snohomish river, which flows in a general northerly and northeasterly direction through the lands shown on the east side of said plat, and thence in a westerly direction through the lands shown on the north side of said plat. That lying in a general westerly direction from the lands shown in said plat, and including the same, is a large river bottom many miles in extent * * * commonly known in the local vicinity as 'The Marsh.' That along the bank of the Snohomish river there exists a sort of rim, varying from two hundred and fifty (250) to fifty (50) yards in width, which is higher than that portion of the bottom land farther from the river, excepting at certain points, where said rim is broken by natural water courses running into said river. That for more than sixty (60) years past the Snohomish river has been subject to floods at frequently recurring intervals, at which time the waters of said river escaping from the ordinary channel and overflowing its banks spread over the said bottom land to a depth of about two feet to six feet, continuing to flow in the same general direction as the waters in the ordinary channel of said river to its mouth, and such portions thereof as do not flow over the rim are discharged into the channel of the river, when the flood subsides, through numerous natural water courses and channels, carrying and draining themselves into the river. That in times of flood, sufficient to overflow said bottom lands, the waters of said Snohomish river have been accustomed to leave its banks at points thereon, easterly and southerly from where the track of said defendant crosses said bottom lands, and are distributed over practically the entire area of said bottom, and flow with an easy current. That for a long time prior to the filling in of the trestles, hereinafter described, by the railway of the defendant over said bottom lands, the Great Northern Railroad Company did maintain, and ever since has maintained, its track over said lands where the same is now located upon an embankment composed of earth sand, gravel, and rock, substantially the same as at the present time. That the tracks of the defendant crossing said bottom land were originally built partly on an embankment and partly on a trestle, the embankment and trestle being substantially from 10 to 20 feet in height; that there was a trestle from the south bank of the Snohomish river to a point about eight hundred (800) feet south of the track of the Great Northern Railroad Company, marked on the plat hereto attached, and hereinbefore referred to, 'End of old trestle'; that there was a trestle of about three hundred (300) feet in length at the point on said plat marked 'A'; a trestle about six hundred (600) feet in length at the point marked 'B' on said plat; a trestle about two hundred (200) feet in length at the point marked 'C' on said plat; and a trestle about six hundred (600) feet in length at the point marked 'D' on said plat; that while said trestles were open the flood waters of the Snohomish river passed through the same, and the flow thereof was not materially interrupted or changed. That the defendant has caused its said trestles to be filled at the points marked on said plat 'A', 'B', 'C', and 'D,' as aforesaid, and from the point marked 'End of old trestle' to about twenty (20) feet from the embankment of the Great Northern Railroad Company, using to make such fill dirt, sand, gravel, stone, and rocks; that the filling of such trestles forms a dam or barrier across the whole of said river bottom to said Great Northern Railroad, which prevents the waters of the Snohomish river from flowing along their usual and accustomed course over said bottom lands, and turns said waters in a general northerly direction along the east side of said embankment, until it reaches the open space between the end of such embankment and the Great Northern Railroad, where a powerful eddy is formed, and said waters are ejected in a current of tremendous force through the opening aforesaid, upon the bottom lands aforesaid, and the lands of this plaintiff, hereinbefore described.' The amended complaint further alleges that, in times of high water and overflow, the unnatural current and eddy thus created by appellant has caused and still causes large amounts of gravel and sand to be washed and deposited on appellant's tillable land, to his damage in the sum of $2,500.

The only question before us is the sufficiency of the amended complaint. Respondent insists the overflowing water from which it has protected itself, and of which appellant complains, is surface water, an outlaw and common enemy against which any property owner may defend himself, although in so doing he may cause injury to others, and that such injury is damnum absque injuria. Appellant contends under the common law the water is not surface water, but that, if it is, respondent is liable for appellant's damages sustained by reason of its collection upon respondent's lands, and the subsequent discharge upon appellant's land in a quantity...