Hauser v. Arness, 32675

• Decision Date: 04 March 1954
• Docket Number: No. 32675,32675
• Citation: 44 Wn.2d 358,267 P.2d 691
• Court: Washington Supreme Court
• Parties: HAUSER et al. v. ARNESS et al.

Page 358

44 Wn.2d 358

267 P.2d 691

HAUSER et al. v. ARNESS et al.

No. 32675.

Supreme Court of Washington, Department 2.

March 4, 1954.

James Munro, Bremerton, for appellants.

Greenwood & Shiers, Port Orchard, for respondents.

DONWORTH, Justice.

Plaintiffs brought this action to enjoin defendants from using lots 52, 53, 54, and 55 of Kingston Beach Tracts in Kitsap county near the town of Kingston for log dumping and booming operations. The trial court found that defendants' log dumping and booming were being carried on in violation of the Kitsap county zoning ordinance and consequently constituted a nuisance.

The court entered a decree permanently enjoining the defendants from dumping or booming logs 'on, over or across' the aforesaid lots and from filling in the tideland area in front of the lots and using the fill abutting the lots for log dumping or booming. However, the court made the effective date of its decree May 1, 1954, to allow defendants a year within which to complete their logging operations in that area.

Plaintiffs Hauser and wife are the owners of two lots adjoining the lands here in dispute on the southeast, and the other thirty-six plaintiffs are the owners of other lots in the area.

Plaintiffs' respective lots are improved with houses some of which are occupied only during the summer months and others which are used as permanent homes. The lots owned by defendants and those owned by plaintiffs all front on Apple Tree Cove, a saucer-shaped bay on the west shore of Puget Sound which has a small lagoon at its apex with a narrow spit of land sticking out like a finger separating the lagoon and the bay proper.

The four lots owned by defendants which are the subject of this action are on this spit, lying north and east of a county road which crosses the spit. The road crosses the channel connecting the bay and the lagoon over a bridge located a few feet northwest of the northwest corner of defendants' property.

Defendants' four lots have tidelands in front of them over which the tide ebbs and flows for a distance of several hundred feet. Prior to this suit defendants constructed a fill level with the county road and extending across their upland property and out over a portion of the tidelands abutting thereon. The fill was approximately 55 to 65 feet wide and extended approximately 30 to 40 feet onto the tidelands.

Plaintiffs filed their complaint seeking injunctive relief after defendant Ed Arness had been arrested by county officials on a charge of violating the county zoning ordinance. He was tried in the justice court where a jury acquitted him of the criminal charge.

Plaintiffs' complaint in this case alleged that they were the owners of certain lots fronting on Apple Tree Cove and that all of the lots involved in this case--the plaintiffs' and defendants--were zoned as residential property, and that defendants were violating the county zoning ordinance by maintaining and operating a log dumping and booming grounds on their four lots.

In their first cause of action, plaintiffs prayed for a permanent injunction restraining defendants from using the lots for log dumping or booming on the theory that such a use was in violation of the zoning ordinance. In a second cause of action plaintiffs sought to enjoin the log dumping and booming operation of defendants on the theory that it constituted a nuisance which threatened plaintiffs' peaceful enjoyment of their property.

Defendants' answer denied all the material allegations of plaintiffs' complaint and affirmatively alleged that the four lots in dispute had been used primarily for logging purposes for many years and were being so used when the zoning ordinance was enacted in 1945. Defendants also alleged that the lands they were using for log dumping and booming were in an unclassified zone and not in a residential zone, and alleged that defendants had no other place to put their logs into the tidewaters and that to deny them the use of their lands for log dumping and booming would be to deprive them of the use of their property without due process of law in violation of the state and Federal constitutions.

After a trial of the case on the merits, the trial court rendered a memorandum opinion holding that the use of the property by defendants as a log dumping and booming grounds was in violation of the county zoning ordinance. The court on May 25, 1953, entered a decree enjoining defendants' use of the lots for log dumping or booming from and after May 1, 1954. The decree made no provision for payment of costs to plaintiffs. On the day the decree was entered defendants gave written notice of appeal.

Three days later, on May 28, 1953, plaintiffs filed a cost bill. Defendants moved to strike the cost bill. The motion was denied. On June 22, 1953, the trial court entered an order amending the decree to allow plaintiffs their costs. Defendants have appealed from the decree and from the order amending it.

Appellants have made six assignments of error, the first five challenging certain portions of the findings of fact made by the court and the failure to make certain findings. The sixth assignment asserts that the court erred in refusing to strike the cost bill and in amending the decree (after notice of appeal had been given) so as to award costs to respondents.

Respondents produced some twenty witnesses most of whom were owners of property situated in the vicinity of appellants' land. These witnesses testified regarding the adverse effect of appellants' log dumping and booming operations upon their enjoyment of their respective properties and the consequent depreciation of its value. Appellants' witnesses gave testimony in contradiction thereof.

In view of the narrow ground on which the trial court decided this case (as shown by its memorandum decision) we need not discuss the conflicting testimony bearing upon the general nuisance issue. This issue is no longer in the case because (1) the parties stipulated in open court that the manner in which appellants' operations were conducted did not differ from similar log dumping and booming operations and (2) the trial court stated that it was unable to hold that the log dump constituted a general nuisance.

Consequently, the only question before us is raised in appellants' assignment of error No. 4 reading as follows:

'Trial Court erred in holding in Paragraph IV of its Findings of Fact 'that the acts and things done by the defendants were in violation of Ordinance No. Z-1, and therefore unlawful, and a public nuisance.'

Even though it is called a finding in the record, this statement is a conclusion of law rather than a finding of fact. In such cases it is our policy to treat such a statement as a conclusion of law. Wygal v. Kilwein, 41 Wash.2d 281, 248 P.2d 893.

We, therefore, come to a consideration of three undisputed facts shown in the record which we regard as material to a determination of this case.

Those three facts are: (1) The tidelands below the government meander line in Apple Tree Cove are unclassified by the county zoning ordinance. (2) The zoning ordinance does not prohibit log dumping and booming in unclassified zones. (3) The filled portion of appellants' land on which their truck stands when dumping logs is wholly below the meander line and, therefore, the operation takes place entirely on the tidelands.

It is not disputed, of course, that the logs are boomed in the water over the tidelands well below the meander line and that appellants obtained a permit from the Army engineers to obstruct navigation to the extent necessary for their booming operations.

The first and second facts recited above were established by the county zoning ordinance and the economic land use classification map approved by the county commissioners.

The third fact was established by the testimony of Olin M. Sprague, a surveyor whose qualifications were admitted by respondents, and by a map drawn by him from information obtained by a survey of appellants' four lots and the tidelands adjoining them. According to Sprague's testimony (which was not disputed by any other witness) that portion of appellants' land on which their logging truck stands while dumping logs is wholly below the meander line and entirely on the tidelands.

The court found that appellants' lots were zoned as agricultural land in 1945 and rezoned as residential land in 1951. Appellant contends the rezoning was not properly accomplished. But since by terms of the ordinance log dumping and booming are prohibited in either agricultural or residential zones, we need not pass on this assignment of error because if there were error in so finding, it would not affect the result.

The problem before us is whether appellants may, without violating the county zoning ordinance, drive their logging truck across their own land from the county road to the tidelands in front thereof for the purpose of dumping logs thereon.

In order to understand the physical facts we again refer to the testimony of Mr. Sprague, the surveyor (since his is the only testimony on that point) and to his map of the area. We find that the upland portion of appellants' four lots (above the meander line) is a wedge-shaped strip of land lying between the county road right-of-way and the tidelands. The upland strip is 17.49 feet wide at the northwest end of the fill and 28.92 feet wide at the southeast end of the fill. The part of the fill below the meander line (which is on the tidelands) is 40.09 feet wide at the northwest end of the fill and 28.69 feet wide at the southeast end. The outer edge of the fill is 175.62 feet long and the log rollway extends 90 feet easterly from the outer edge of the fill.

It is evident that to drive the truck from the county road to the site from which the logs are dumped onto the rollway, appellants must cross a strip of their own upland varying in width from 17 1/2 to 29 feet. In other words, appellants' truck,...