King County v. Boeing Co.

Decision Date18 July 1963
Docket NumberNo. 36273,36273
Citation384 P.2d 122,62 Wn.2d 545
CourtWashington Supreme Court
PartiesKING COUNTY, a legal subdivision of the State of Washington, Appellant, v. The BOEING COMPANY, a corporation, and Isaacson Iron Works, a corporation, Respondents.

Charles O. Carroll, Pros. Atty., James J. Caplinger, William L. Paul, Jr., Deputy Pros. Attys., Seattle, for appellant.

Matsen, Clark, Cory & Matsen, Seattle, for Isaacson Iron Works.

Holman, Mickelwait, Marion, Black & Perkins, J. Paul Coie, H. Weston Foss, Seattle, for Boeing Co.

HAMILTON, Judge.

Plaintiff, King County, appeals from a summary judgment granted in favor of defendants, The Boeing Company (hereafter after referred to as Boeing) and Isaacson Iron Works (hereafter referred to as Isaacson).

The suit between the parties revolves about drainage of surface waters from the southerly portion of the King County Airport, also known as Boeing Field. There is no substantial dispute as to the facts. The parties disagree as to the governing legal principles.

In 1911, Commercial Waterway District No. 1 of King County (hereafter referred to as the district) was formed, pursuant to Laws of 1911, chapter 11, p. 11, RCW 91.04.010 et seq. The purpose of the district was to straighten, widen, and dredge the natural course of the Duwamish River, a navigable stream, which flowed northwesterly into Elliott Bay, and to make thereof a ship canal or man-made waterway. In 1913, the district began construction of the canal, which is now known as the Duwamish Waterway. At several points, this waterway intersected and followed the old or natural thread of the river, then left the course of the river in a straight line to the next point of intersection. About 1916, the waterway was completed and the river was diverted from its natural channel and has since flowed in the waterway. By reason of this diversion, substantial portions of the natural channel of the river were bypassed and abandoned, leaving a number of crescent or oxbow loops lying on both sides of the waterway, the title to which vested in the district. 1 The abandoned portions of the river lying east of the waterway and west of East Marginal Way are referred to as 'slips'. There are seven such slips, all of which now have been sold by the district. The abandoned portions of the river channel lying east of East Marginal Way, between Slips 4 and 5, were sold by the district to King County, filled, and now lie beneath the airport.

The following map portrays the area between Slips 4 and 5, including the waterway, the airport area, and the abandoned portions of the river lying east and west of East Marginal Way. The superimposed arrows indicate the original direction of the river's flow. All but 900 feet of Slip 5 has heretofore been filled.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Before and after construction of the waterway and the airport, surface waters drained naturally in a northerly and westerly direction. The present runways of the airport are at a grade of .38 per cent from south to north. Before and after construction, the waters of the river and the waterway were affected by the ebb and flow of the tides in Elliott Bay. When the tides are in, the unfilled portion of Slip 5 is flooded. When the tides go out, Slip 5 drains westerly into the waterway.

In 1943, the airport was owned and operated by the United States Government, during which time a drainage system was installed. By this system, the surface waters upon the southerly portion of the airport are collected in an elaborate system of underground pipe and catch basins, and then pumped, by a series of six pumps, westerly through a 4-foot drain pipe that runs beneath East Marginal Way, several railroad tracks, and some buildings located on property belonging to Isaacson. The terminus or outfall of this drain discharges the surface waters pumped through it into the remaining 900 feet of Slip 5, from whence it flows into the waterway.

This drainage system was constructed without the knowledge or consent of the district, which then owned Slip 5. In 1947, Isaacson granted a 12-foot easement over its property, conforming to the route of the existing drain pipe. The United States Government sought an easement through Slip 5, which was refused by the district.

In 1956, the district sold Slip 5 to Isaacson and Boeing's predecessor. Isaacson now owns the northerly portion of Slip 5 and Boeing the southerly portion. Both Isaacson and Boeing own land adjacent to their respective portions of the slip.

The present dispute arose when Isaacson commenced filling its portion of Slip 5 with impervious material to bring it to the level of its adjacent property. It is undisputed that if Isaacson and Boeing fill Slip 5 the existing drainage system for the southerly portion of the airport will be blocked and, unless remedied, the airport flooded.

Isaacson offers an easement through Slip 5 to permit extension by King County of its drain pipe. King County consents to extension of its pipe by defendants. Herein lies the core of the controversy: Who shall pay for extension of the drain pipe through Slip 5?

King County commenced this action, seeking to enjoin the filling of Slip 5. A temporary restraining order was issued ex parte. Issue was joined and a motion for summary judgment interposed. The trial court, upon the basis of the undisputed facts, as presented by the pleadings and affidavits submitted, concluded King County had no legal right to discharge surface waters from the airport into Slip 5, the property of Isaacson and Boeing, and dissolved the temporary restraining order.

King County, on appeal, makes five assignments of error, which by argument are reduced to two basic contentions: (a) Slip 5 is a natural water or drainage course, and (b) Isaacson and Boeing are estopped from interfering with or obstructing the existing drainage system.

King County's contentions must be considered against the backdrop of the following applicable principles, which we consider established by previous decisions of this court:

(1) The bypassed and abandoned portions of the bed and shores of the Duwamish River ceased to be a part of the Duwamish river, waterway, or watercourse, and title thereto, with the power of alienation, vested in Commercial Waterway District No. 1. Hill v. Newell, 86 Wash. 227, 149 P. 951; King County v. Commercial Waterway Dist. No. 1, 42 Wash.2d 391, 255 P.2d 539; Commercial Waterway Dist. No. 1 of King County v. State, 50 Wash.2d 335, 311 P.2d 680; Commercial Waterway Dist. No. 1 of King County v. Permanente Cement Co., 161 Wash.Dec. 508, 379 P.2d 178; RCW 91.04.170, 91.04.200.

(2) Surface waters are ordinarily those vagrant or diffused waters produced by rain, melting snow, or springs. Alexander v. Muenscher, 7 Wash.2d 557, 110 P.2d 625.

(3) A natural watercourse, insofar as riparian rights be concerned, and as related in appropriate instances to drainage rights, is defined as a channel, having a bed, banks or sides, and a current in which waters, with some regularity, run in a certain direction. Geddis v. Parrish, 1 Wash. 587, 21 P. 314; Tierney v. Yakima County, 136 Wash. 481, 239 P. 248; In re Johnson Creek, 159 Wash. 629, 294 P. 566; DeRuwe v. Morrison, 28 Wash.2d 797, 184 P.2d 273. A natural drain is that course, formed by nature, which waters naturally and normally follow in draining from higher to lower lands. Thorpe v. Spokane, 78 Wash. 488, 139 P. 221; Trigg v. Timmerman, 90 Wash. 678, 156 P. 846, L.R.A.1916F, 424; D'Ambrosia v. Acme Packing & Provision Co., 179 Wash. 405, 37 P.2d 887.

(4) Surface waters are to be regarded as outlaw or common enemy waters, against which every proprietor of land...

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