Litka v. City of Anacortes

• Decision Date: 18 March 1932
• Docket Number: 23502.
• Parties: LITKA et ux. v. CITY OF ANACORTES.
• Court: Washington Supreme Court

9 P.2d 88

167 Wash. 259

LITKA et ux. v. CITY OF ANACORTES.

No. 23502.

Supreme Court of Washington

March 18, 1932

Department 1.

Appeal from Superior Court, Skagit County; George A. Joiner, Judge.

Action by Felix L. Litka and wife against the City of Anacortes. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Ben Driftmier, of Anacortes, for appellant.

Thomas Smith and James G. Smith, both of Mt. Vernon, for respondents.

BEELER J.

The respondents own real property bordering on Lake Campbell together with the riparian rights. Lake Campbell is a comparatively small body of water embracing an area of approximately 320 acres, and is nonnavigable. Its average depth is estimated to be from eight to ten feet. The respondents acquired the property some fifteen years ago, and soon thereafter they constructed a dwelling house, a bath house, several cabins, and a dock. They operated a small store, served meals, rented boats for hire, conducted a bathing beach, camp ground, had houses and cabins for rent throughout the year to hunters, fishermen, and bathers. They used their property almost exclusively as a pleasure resort. It has no value for agricultural purposes.

In 1924, the city of Anacortes established a pumping station at the lake for the purpose of taking or pumping water therefrom to be used in connection with its water system. In 1926, the city constructed a dam at the lake's outlet, thereby raising the level of the lake, and in the following year the height of the dam was increased, thereby further raising the lake level. In 1928, the city began pumping a considerable quantity of water from the lake which continued throughout 1929 and 1930, with the result that by January 1, 1931, the lake was practically drained, or, as some of the witnesses stated, 'it was practically a mud flat.' During 1931 the city dismantled its pumping station and discontinued appropriating water from the lake.

The respondents in their complaint alleged that the appellant in 1926 and 1927 went upon Lake Campbell and established a water pumping station 'without exercising its power of eminent domain.' It was further alleged that within two and a half years prior to January 1, 1931, the appellant proceeded to pump the water from Lake Campbell 'so that the lake is now without water and has been reduced to merely a mud pit and it is impossible for these plaintiffs to reach water or to have the same from the said lake for domestic use or for any other or further purposes for which they were using the same, to-wit: for domestic use, irrigating, mooring boats fishing, bathing, water sports, boating, and by said defendant's acts and conduct in appropriating property belonging to these plaintiffs, for its own use, without compensation or condemnation, these plaintiffs have suffered great and irreparable loss and damage; * * * that plaintiffs were making an annual profit prior to the destruction of plaintiff's property by the defendant in excess of $6,000.'

The complaint further alleged that their property had a reasonable market value of the sum of $25,000, and that after the lake was drained the market value of their property was not to exceed $1,500. They prayed for judgment in the sum of $23,500.

The appellant in its answer admitted that it had established a water pumping station on the lake and had appropriated water therefrom for its use. In its answer it denied that it 'caused any permanent damage,' and alleged that 'if any damage was caused thereby the same was only temporary.' It denied that the reasonable market value of respondents' property 'was the sum of $25,000 or any other sum in excess of $10,000.'

The reply placed in issue the affirmative matters contained in the answer. Upon these issues the cause was tried to the court and a jury, and resulted in a verdict in favor of the respondents in the sum of $7,000. Appellant's motions for judgment notwithstanding the verdict, or, in the alternative, for a new trial, being overruled, judgment was entered on the verdict, and this appeal followed.

Section 16, art. 1, of the State Constitution, provides: 'No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner. * * *'

It is admitted that Campbell Lake is nonnavigable. Being nonnavigable, the respondents as riparian owners own the property to the center of the lake. Riparian rights are recognized in law to be valuable property rights. Undoubtedly in this instance the riparian rights were the principal reason which induced the respondents to purchase this land tract. Since riparian rights are property rights, they cannot be taken by a municipality for public purposes without just compensation to the owner.

'A municipality has the right to take of the waters of a stream for the purpose of supplying its inhabitants with water for domestic and other uses. But, like any other public agency, it cannot do so without condemning and making compensation for the loss of the use of the appropriated waters or the extinguishment of the riparian rights, in toto or pro tanto, of the affected owners.' Domrese v. Roslyn, 101 Wash. 372, 172 P. 243.

When the city appropriated the water from the lake, it took from the respondents the very thing that was necessary and essential to the use of their property, and a valuable property right; in other words, the city damaged the respondents' land. The case of Martha Lake Water Co. v. Nelson, 152 Wash 53, 277 P. 382, is directly in point. There a nonriparian land owner was granted a permit by the state supervisor of hydraulics to take a quantity of water from Lake Martha. The lower court enjoined the water company from lowering the lake on the ground that it had failed to acquire the right to do so by eminent domain. Passing on the question we said: 'In the present case the lowering of the waters of Martha Lake would materially and substantially damage the riparian owners. The water's edge would recede and land which was covered with water at the time of their purchase would become dry land. Under the constitutional provision...