Kind v. City of Seattle

• Decision Date: 27 June 1957
• Docket Number: No. 33897,33897
• Citation: 312 P.2d 811,50 Wn.2d 485
• Court: Washington Supreme Court
• Parties: M. Maurice KIND and Saida Kind, his wife, and M. Maurice Kind, doing business as M. Kind Novelty Company, et al., Respondents, v. The CITY OF SEATTLE, a municipal corporation, Appellants.

Page 485

50 Wn.2d 485

312 P.2d 811

M. Maurice KIND and Saida Kind, his wife, and M. Maurice

Kind, doing business as M. Kind Novelty Company, et al., Respondents, v. The CITY OF SEATTLE, a municipal corporation, Appellants.

No. 33897.

Supreme Court of Washington, En Banc.

June 27, 1957.

Rehearing Denied Sept. 4, 1957.

A. C. Van Soelen, C. C. McCullough, George H. Holt, Corporation Counsel, Seattle, for appellants.

Solie M. Ringold, Hoof, Shucklin & Harris, George A. Meagher, Moriarty, Olson & Campbell, Jack Steinberg, Clarke, Clarke & Albertson, Seattle, for respondents.

ROSELLINI, Justice.

The plaintiffs in these actions own and operate business properties in the vicinity of First Avenue South and Yesler Way, in Seattle. On January 17, 1954, a twenty-inch cast iron water main owned, maintained and operated by the defendant city burst at the intersection of First Avenue and Yesler Way and flooded the properties of the plaintiffs. Their suits against the city were consolidated and tried to the court, which found that the negligence of the city was not proved. The cause of the break of the water main was not shown. The court concluded that the city was liable, regardless of fault, and entered judgments in favor of the plaintiffs.

The case is before this court on the findings of fact. According to these findings, the pipe in question was laid in the year 1890, and was designed to last one hundred years; it was manufactured according to the best known engineering methods; was installed in accordance with good engineering practices; was laid upon an adequate foundation in original ground; and was subsequently covered over with a fill to a depth of approximately 6.8 feet. Portions of the pipe were inspected whenever they were exposed for other purposes and were found to be in reasonably good condition. The water was shut off as soon as possible after the break occurred. The pipe was strong enought to stand the pressure exerted upon it at the time of the break and was within the standard specifications. The cause of the break was unknown.

The finding of fact most pertinent to this appeal reads as follows:

'No negligent act on the part of the city has been shown. The break of the water main in question does not ordinarily occur unless some person connected with manufacture, installation or operation has been at fault. The defendant city has endeavored, insofar as reasonably possible to determine the cause of the break, and such investigation so far as it has gone has shown that the city acted with due care in the operations examined.'

It is the contention of the appellant that the doctrine enunciated in Rylands v. Fletcher, L.R. 1 Exch. 265, decided in 1866, and affirmed two years later in Fletcher v. Rylands, L.R. 3 H.L. 330, upon which the trial court based its decision should not be applied to the facts of this case. The defendant in that case had caused a reservoir to be constructed on his land to provide water for his mill. The water seeped through an abandoned mine shaft into the plaintiff's mine, causing damage. Justice Blackburn, speaking for the court of Exchequer Chamber, said:

'The person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default; or perhaps that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour's alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbour, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this we think is established to be the law whether the things so brought be beasts, or water, or filth, or stenches.'

This court has applied the doctrine in cases where harm has befallen a plaintiff as a result of blasting operations carried on by the defendant. Foster v. Preston Mill Co., 44 Wash.2d 440, 268 P.2d 645 (strict liability limited to the risks inherent in blasting operations); Patrick v. Smith, 75 Wash. 407, 134 P. 1076, 48 L.R.A.,N.S., 740; Schade Brewing Co. v. Chicago, Milwaukee & Puget Sound R. Co., 79 Wash. 651, 140 P. 897. We have found no case in this jurisdiction where liability has been imposed upon a municipal corporation, regardless of fault, for damage resulting from a broken water main. The respondents call our attention to the case of Bridgeman-Russell Co. v. City of Duluth, 158 Minn. 509, 197 N.W. 971, 972, wherein the doctrine of Rylands v. Fletcher, supra, was applied in favor of a plaintiff whose property had been damaged as a result of a bursting water main. In choosing to align itself with the courts which have approved the doctrine (admittedly a minority), the court in that case said:

'* * * If a break occurs in the reservoir itself, or in the principal mains, the flood may utterly ruin an individual financially. In such a case, even though negligence be absent, natural justice would seem to demand that enterprise, or what really is the same thing, the whole community benefited by the enterprise, should stand the loss rather than the individual. It is too heavy a burden upon one. The trend of modern legislation is to relieve the individual from the mischance of business or industry without regard to its being caused by negligence.'

Those courts which oppose the application of the doctrine generally adopt the theory that the imposition of liability without fault discourages enterprise and the most beneficial use of property.

Whether the doctrine of ...