Morton v. Hines

Decision Date04 October 1920
Docket Number15776.
Citation112 Wash. 612,192 P. 1016
CourtWashington Supreme Court
PartiesMORTON et ux. v. HINES, Director General of Railroads. SCHANK et ux. v. SAME.

Department 2.

Appeal from Superior Court, Lewis County; W. A. Reynolds, Judge.

Consolidated actions by Frank Morton and wife and by E. J. Schank and wife against Walker D. Hines, Director General of Railroads. Judgment of dismissal in each action, and plaintiffs appeal. Affirmed.

C. D Cunningham, of Centralia, and Forney & Ponder, of Chehalis for appellants.

Bogle Merritt & Bogle, of Seattle, for respondent.

FULLERTON J.

The appellants Morton and wife and the appellants Schank and wife brought separate actions against the respondent, Walker D Hines, as Director General of Railroads, to recover in damages for injuries to their real property alleged to have been caused by the wrongful acts of the respondent while in the maintenance and operation of the railroad of the Oregon-Washington Railroad & Navigation Company, of which he was then director. After issue had been joined on the complaints, the causes were consolidated for trial, and a trial entered upon before the court sitting with a jury. At the conclusion of the evidence on behalf of the appellants a challenge to the sufficiency of the evidence was interposed by the respondent, which the court sustained, entering a judgment of dismissal in each of the actions. Appeals were separately taken, but were consolidated in this court for hearing, and we will notice them as a single proceeding.

The appellants' properties are situated in the town of Galvin, in Lewis county. The line of railroad of the railroad company named, as it approaches the town from the east, runs in a northwesterly direction, and and crosses the Chehalis river about one-fourth of a mile before it reaches the town. The Chehalis river is a considerable stream. The railroad crosses it on a bridge some 286 feet long, which rests on three piers, one on the west bank of the river, one near its center, and one near the eastern bank. It crosses diagonally, deflecting from a right angle between 20 and 30 degrees; the western end of the bridge being lower down the stream than the eastern end. The pier in the center is at right angles to the course of the bridge, and consequently sets diagonally with the course of the stream. The railroad and bridge were constructed in the year 1910. As originally constructed, the railroad track between the river and the town of Galvin ran over a trestle built upon piling driven in the ground and was between 8 and 10 feet high. On the left side of this trestle were private homes, a dismantled sawmill, and cultivated lands. Opposite were other cultivated lands. No water course extended over this land, although there were in two places depressions in the surface which might have heen eroded by running water at some former period. The slope of the land is downward from the river until it reaches the limits of the town of Galvin, at which point there is a ridge on which the major part of the town is built. The place at which the railroad intersects the boundaries of the town is some 10 feet lower than the elevation at the bridge. The respondent's properties were practically at this lower level, although protected from the river by a ridge some 2 feet higher than the surrounding levels. In 1918 the respondent caused the trestle to be filled with earth, gravel, and rock between the river and the town of Galvin, making a solid roadbed of it for the entire distance, save for two openings left at the depressions mentioned, 16 feet in width.

The Chehalis river for some distance above and for a short distance below the railroad bridge makes a somewhat gradual curve to the right or east. From the latter point it curves sharply still further towards the east, continuing its course for a distance of perhaps a quarter of a mile, where it turns in a half circle to the west, flowing in the opposite direction from and almost parallel with the last course mentioned. It continues on this course for some distance, then curves to the south, where it is met by a creek called Lincoln creek, when it turns and flows in a course slightly west of north. The distance from the bridge to the mouth of Lincoln creek following the course of the river is 2 1/8 miles. In a direct line the distance is three-fourths of a mile.

In January, 1919, a freshet occurred in the Chehalis river. It overflowed its banks on both sides for a considerable distance both above and below the railroad bridge, flooding the adjoining and adjacent territory. It was these flood waters that injured the appellants' property, and it is to recover for this injury that the present actions are prosecuted. The grievances and contentions of the appellants are clearly stated by their counsel in the following language:

'In order to make our position plain at the outset, we will say in an epitomized form that our grievance against the defendant, based upon the evidence, is that he did, by means of a bridge pier, turn the waters of the river out of the channel, which he had no lawful right to do; that these same waters, after he had turned them from the stream, he continued to control, and collected into a mass by means of his railroad embankment, and cast them into a torrential body upon the lands of plaintiffs, to their damage. As to this latter act we shall contend that defendant had no right in law to direct against plaintiffs, artificially and en masse, the water which he had himself, by his own unlawful acts, forced out of a natural water course, because it is not what the law regards as surface whater, at least the law will not permit him to treat it as surface water, but it continues to be and remains the water of a stream, diverted from its natural and accustomed course, and compelled to seek a new channel across plaintiffs' land. And we shall go even further and meet counsel on his own chosen ground, and show that, even if counsel can construe
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13 cases
  • Gaines v. Pierce County
    • United States
    • Washington Court of Appeals
    • July 31, 1992
    ...and a common enemy against which anyone may defend himself." Cass v. Dicks, 14 Wash. 75, 78, 44 P. 113 (1896), Morton v. Hines, 112 Wash. 612, 617, 192 P. 1016 (1920); Wood v. Tacoma, 66 Wash. 266, 271-72, 119 P. 859 (1911); Island Cy. v. Mackie, 36 Wash.App. 385, 388, 675 P.2d 607 (1984). ......
  • Hedlund v. White
    • United States
    • Washington Court of Appeals
    • September 9, 1992
    ..."common enemy" or "outlaw" rule for dealing with surface water. 8 Cass v. Dicks, 14 Wash. 75, 78, 44 P. 113 (1896); Morton v. Hines, 112 Wash. 612, 617, 192 P. 1016 (1920); Wood v. Tacoma, 66 Wash. 266, 271-72, 119 P. 859 (1911). That rule regards surface water "as an outlaw and a common en......
  • Fitzpatrick v. Ikanogan County
    • United States
    • Washington Court of Appeals
    • January 22, 2008
    ...41-42, 259 P.2d 1113 (citing Cass, 14 Wash. 75, 44 P. 113; Harvey v. N. Pac. Ry. Co., 63 Wash. 669, 116 P. 464 (1911); Morton v. Hines, 112 Wash. 612, 192 P. 1016 (1920); DeRuwe v. Morrison, 28 Wash.2d 797, 184 P.2d. 273 ¶ 16 However, the Sund court declared: "The weight of authority inclin......
  • Wife v. Okanogan County
    • United States
    • Washington Supreme Court
    • September 2, 2010
    ...of another to the damage of his lands. Halverson v. Skagit County, 139 Wash.2d 1, 15, 983 P.2d 643 (1999) (quoting Morton v. Hines, 112 Wash. 612, 617, 192 P. 1016 (1920)). The governing principle is that surface water is “an outlaw and a common enemy against which anyone may defend himself......
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