Kitsap County Transp. Co., Inc. v. City of Seattle

Decision Date09 October 1913
CourtWashington Supreme Court
PartiesKITSAP COUNTY TRANSP. CO., INC., v. CITY OF SEATTLE et al.

Department 2. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by the Kitsap County Transportation Company, Incorporated against the City of Seattle and another. From a judgment in favor of the defendant named, on demurrer to the complaint plaintiff appeals. Affirmed.

Walter A. Keene and J. H. Buchanan, both of Seattle, for appellant.

Jas. E Bradford and C. B. White, both of Seattle, for respondent.

MAIN J.

The purpose of this action was to recover damages for alleged negligence. The material allegations of the complaint were: That the plaintiff was the owner of the steamer Kitsap, which was operated between the port of Seattle and other ports on Puget Sound; that there was in full force and effect an ordinance of the city of Seattle providing, among other things, that it shall be unlawful to throw, discharge, or deposit any refuse matter of any kind or description into the navigable waters of Elliott Bay, or to float sawlogs, timbers, or piles in the harbor of the city in such manner as to obstruct or impede navigation; that the ordinance imposed upon the port warden of the city of Seattle the duty of exercising vigilant control and supervision over the harbor and waters of Elliott Bay; that the Weymouth Donstruction Company did carelessly and negligently discharge and deposit certain timbers and piles into the harbor and waters of Elliott Bay, and carelessly, negligently, and unlawfully floated loose timbers and logs therein; that the city of Seattle, its agents and servants, negligently and carelessly permitted loose timbers, logs, and pieces of piles to be thrown into the navigable waters of Elliott Bay; and that, while the plaintiff's steamer Kitsap was leaving the port of Seattle, one of the timbers so thrown into the waters and allowed to remain there came into contact with the propeller of the steamer Kitsap, causing the damage complained of. To the complaint the defendant city interposed a general demurrer, which was sustained by the trial court. Thereupon the plaintiff elected to stand upon its complaint, and refused to plead further. Judgment of dismissal was entered, from which an appeal was taken.

The sole question here for determination is whether or not the city in exercising control over the harbor and waters of Elliott Bay in front of the city of Seattle is liable in damages for failure of the port warden to enforce an ordinance which provided for the keeping of the harbor free from débris.

Waters within the limits of a municipality which are highways for the state, interstate, and foreign commerce are primarily under the control of regulations promulgated by the Congress of the United States. But the state, on account of its interest in the navigable waters within its borders, may properly assume control thereof, and cause the removal of obstacles which may be a menace to navigation, provided the regulation of the state does not conflict with the action of Congress. The general rule is that the city is not liable to a person sustaining injuries on account of some obstruction in the navigable waters within its boundaries, unless the duty to keep such navigable waters opened and free from obstruction has been expressly imposed upon it by an act of the state Legislature. Coonley v. City of Albany, 132 N.Y. 145, 30 N.E. 382; Goodrich v. Chicago, 20 Ill. 445; Seaman v. Mayor, etc., of City of New York, 80 N.Y. 239, 36 Am. Rep. 612.

In the case first cited it is said: 'The river, being a highway for state, interstate, and foreign commerce, is subject to regulation by Congress; but the state, because of its great interest in the continuing availability of navigable waters within its borders for vessels, may properly assume to remove such obstacles as may from time to time prove a menace to successful navigation, provided, always, that it does not impair freedom of navigation under the acts of Congress, or interfere with any system of improvement provided by the general government. But while the general government together with the aid of the state government, may, and generally does, provide for the removal of the obstacles which are a hindrance to navigation, and the doing of other necessary things for the encouragement and protecting of commerce, and performance in that respect is regarded as a duty, still it is not one that the individual may enforce. Judge Agnew, in the Winpenny Case (65 Pa. 135, 140), said: 'It is not a duty of perfect obligation, but one of voluntary assumption or imperfect obligation, inasmuch as it cannot...

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8 cases
  • Boise Development Co., Ltd. v. Boise City
    • United States
    • Idaho Supreme Court
    • 28 Septiembre 1917
    ... ... Ada County. Hon. Charles P. McCarthy, Judge ... Action ... 110 Am. St. 338, 101 N.W. 841, 67 L. R. A. 931; Kitsap ... County Transp. Co. v. Seattle, 75 Wash. 673, Ann ... ...
  • Ehrhart v. King Cnty.
    • United States
    • Washington Supreme Court
    • 2 Abril 2020
    ...from a neglect of duty on the part of its employees in failing to enforce its ordinances." (citing Kitsap County Transp. Co. v. City of Seattle , 75 Wash. 673, 674, 678, 135 P. 476 (1913) (holding "failure of the port warden to enforce an ordinance which provided for the keeping of the harb......
  • Campbell v. City of Bellevue
    • United States
    • Washington Supreme Court
    • 9 Enero 1975
    ...that a city will not be liable for failure to enforce its ordinances. A leading case in this jurisdiction is Kitsap County Transp. Co. v. Seattle, 75 Wash. 673, 135 P. 476 (1913). Therein the city had an ordinance forbidding the dumping of refuse into the waters of Elliott Bay. Plaintiff's ......
  • J & B Development Co., Inc. v. King County
    • United States
    • Washington Court of Appeals
    • 27 Julio 1981
    ...failing to enforce their ordinances. See, e. g., Goggin v. Seattle, 48 Wash.2d 894, 297 P.2d 602 (1956); Kitsap County Transp. Co. v. Seattle, 75 Wash. 673, 135 P. 476 (1913). In 1961, the legislature enacted RCW 4.92.090, which as amended The state of Washington, whether acting in its gove......
  • Request a trial to view additional results

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