Knapp Brick & Tile Co. v. Skagit County

• Decision Date: 13 May 1940
• Docket Number: 27754.
• Citation: 4 Wn.2d 152,102 P.2d 679
• Court: Washington Supreme Court
• Parties: KNAPP BRICK & TILE CO. v. SKAGIT COUNTY.

102 P.2d 679

4 Wn.2d 152

KNAPP BRICK & TILE CO. v. SKAGIT COUNTY.

No. 27754.

Supreme Court of Washington

May 13, 1940

Department 2.

Action by the Knapp Brick & Tile Company, a corporation, against the County of Skagit, a municipal corporation, for alleged damage to plaintiff's water supply system. From a judgment for the plaintiff, defendant appeals.

Affirmed.

Appeal from Superior Court, Skagit County; Edwin Gruber, judge.

Richard Welts and R. V. Welts, both of Mount Vernon, for appellant.

Ward &amp Barclay, of Sedro Woolley, for respondent.

STEINERT Justice.

Plaintiff brought suit against defendant for alleged damage to its water supply system. The court, sitting without a jury, found for plaintiff, and entered judgment accordingly. Defendant has appealed.

Respondent has for many years owned a tract of land in Skagit county situated about 500 feet easterly of what is referred to as the Big Lake Road. Between the road and respondent's land, the ground slopes downward in an easterly direction.

Sometime in 1912, respondent constructed upon its tract a brick and tile factory. Prior to and since that date, respondent also erected upon its premises near the factory a series of six dwelling houses which it rented to various persons. Water for the tile factory is required for three purposes: To moisten the clay used in the manufacture of its products; to cool an air compressor located in the tile plant; and to create steam with which to heat the oil used in its factory burners. Water is also required for the usual domestic purposes in and about the six dwellings.

During all the years since 1912, respondent has obtained its necessary supply of water by means of a pipe line connected with a spring which is located on a hillside near the westerly edge of the Big Lake Road. The spring was not upon respondent's original tract of land, but its waters had been appropriated and continuously used by respondent. In 1920, however, respondent obtained from the owner of the property a deed to the spring, and a right of way for a pipe line across intervening land to its premises. Title to the spring and its waters is therefore claimed by respondent both by prescription and by deed.

About the time that respondent built its factory, it constructed a shallow, planklined cistern around the spring, and attached thereto a one-inch pipe which conducted the water, by gravity flow, to its buildings. A few years later, the cistern was enlarged, and was encased with a brick wall, and a larger pipe was then installed. Still later, an auxiliary cistern 18 feet long, 4 feet deep, and 4 feet wide, and walled with hollow tile, was constructed near, and connected with, the main cistern, to serve as an auxiliary catch basin and reservoir. In 1929, the main cistern was again enlarged so as to have a depth of 8 feet and a diameter of 10 feet. It likewise was walled with hollow tile. The pipe line has, from time to time as occasion required, been repaired or replaced.

The water in the main cistern as finally constructed would rise to a level of about 6 feet overnight, and in the auxiliary cistern it would attain a height of 2 1/2 feet. This supply of water has at all times, except upon very rare occasions, been sufficient for all of respondent's needs. Prior to the events here in question, the main cistern was approximately 30 feet from the county road above mentioned.

On June 13, 1935, the county commissioners of Skagit county adopted a resolution for the improvement of Big Lake Road. Before any work was done, however, the county entered into an arrangement with the state whereby, in consideration of the initiation of certain other projects by Skagit county, the state took over the Big Lake Road project, which involved the widening, straightening, and improving of the county road. Under that arrangment, the county agreed to secure the necessary right of way, and to pay all costs of construction in excess of $23,000. The state thereupon prepared its own plans for the road project, and subsequently let a contract in its own name for the improvement.

The roadbed was widened to within 7 or 8 feet of respondent's main cistern. The plans of the state also called for a drainage ditch along the west side of the road, the side nearest the cistern. The contract, however, between the state and the contractor for the road improvement work made no provision for minimizing the damage which might result to respondent's cisterns and water supply.

Accordingly, when the work of digging the ditch had progressed to points respectively about 75 feet north and 35 feet south of the main cistern, respondent, fearing that the ditch would jeopardize its water supply, instituted suit against the state, the county, and the contractor to enjoin further continuance of that work.

On the day that the preliminary application for injunction was to be heard, the parties, through their respective officers and counsel, entered into an oral stipulation under the terms of which the road work was to proceed in such a manner as not to endanger the spring or the cisterns. It is conceded, however, that it was definitely understood that by such stipulation respondent did not lose nor waive any of its legal rights with respect to damage, and that appellant did not thereby acquire any advantage with respect to any legal claim that respondent might otherwise have. By the terms of the stipulation, it was further agreed that the county, in an effort to protect the spring and cisterns, and to minimize any damage thereto, would construct a semicircular concrete retaining wall, or jacket, around that side of the main cistern which faced the road. There is a conflict in the evidence as to who was responsible for the suggestion that such wall should be built. Appellant contends that it was wholly at the suggestion and insistence of Mr. Knapp, respondent's president, and that the county complied therewith merely in order to appease Mr. Knapp, and to prevent further delay in the road work. Respondent, on the contrary, contends that it opposed the suggestion but finally acquiesced because the county engineer insisted that the wall would give effective protection to the water supply. In our opinion, it is immaterial who made the suggestion with reference to that plan of procedure. The facts are that the county agreed to do the work in that way in order to obviate or minimize the damage to the water system, and that it was specifically understood by the parties that respondent was not waiving any claim for any resulting damage.

In any event, the county engineer succeeded in having the road plans changed by the state to the extent of eliminating the drainage ditch in the locality of the cisterns. Then, as a further precaution against any possible damage to the water supply resulting from the road work, and at the instance of the county, the contractor proceeded to excavate the earth around the east side of the main cistern for the purpose of making a foundation for the semicircular jacket which was to be erected at a distance of about 6 inches from the tiled wall surrounding the spring. While appellant denies that any damage resulted from that operation, the record appears to us to justify the finding by the trial court that the workmen, in excavating the earth loosened the hardpan forming the base of the cistern, and that, as a consequence, water in the spring and cistern escaped through the stratum underneath the base of the wall. Respondent complained to...