Nielson v. King County, 39072

• Decision Date: 14 December 1967
• Docket Number: No. 39072,39072
• Court: Washington Supreme Court
• Parties: Eugene R. NIELSON and Janice I. Nielson, husband and wife, Appellants, v. COUNTY OF KING, State of Washington, and County Engineer Walter F. Winters, its Agent, Respondents.

Page 720

72 Wn.2d 720

435 P.2d 664

Eugene R. NIELSON and Janice I. Nielson, husband and wife, Appellants, v. COUNTY OF KING, State of Washington, and County Engineer

Walter F. Winters, its Agent, Respondents.

No. 39072.

Supreme Court of Washington, Department 2.

Dec. 14, 1967.

Eugene R. Nielson, for appellants.

Charles O. Carroll, Pros. Atty., James E. Kennedy, Deputy Pros. Atty., J. Hartly Newsum, Seattle, for respondents.

DONWORTH, Judge.

This action was instituted by Eugene R. Nielson and his wife against King County and its county engineer to recover $150 damages ¹ to their real property (owned by them and on which they reside), allegedly caused by an obstruction to the natural flow of Clough Creek. Plaintiffs Nielson further seek a court order enjoining defendants to remove the unlawful obstruction they maintain in the watercourse as described in the complaint, on the theory that it constitutes a nuisance.

It is alleged in the complaint in paragraphs 2 and 6 as follows:

2. Defendant County unlawfully maintains an obstruction to the natural flow of Clough Creek where said watercourse intersects that certain road denominated 415 Avenue South East (a/k/a South Fork Road) in the Southwest quarter of the Southeast quarter of Section 16, Township 23, North, Range 8 East, W.M., approximately 1.8 miles southeast of North Bend. This obstruction is in the form of three concrete culverts placed in said road which are inadequate to handle the natural flow of said stream which flows through and under said road. On November 30, 1964, and again on January 29, 1965 and January 30, 1965, this obstruction caused the diversion of water from said stream upon plaintiffs' land described in paragraph 1 above, which abuts said creek at said intersection causing erosion of land, erosion of driveway gravel, and deposit of silt upon claimants' lawn.

6. Plaintiffs, as riparian owners, are entitled in addition to the money damages set out in paragraph 3 above, an order of the Court enjoining defendants to remove the unlawful obstruction of the watercourse described in paragraph 2 above for the reason that said obstruction constitutes a nuisance which plaintiffs may have abated and on the further ground that plaintiffs' remedy at law is inadequate, and equitable relief by way of enjoined removal is proper in order to relieve plaintiffs from filing a multitude of damage actions in the future.

The answer of defendants (herein referred to as the county) admitted that it was maintaining three concrete culverts to convey the natural flow of the creek under the county road in proximity to plaintiffs' property, and that the latter are riparian landowners. The county denied the remaining allegations of the complaint and affirmatively alleged that the damage to the plaintiff's property 'is the direct consequence of an act of God.'

At the trial, each party presented evidence including the testimony of 9 witnesses and 26 exhibits (mostly pictures and maps of the area).

After the trial was concluded, the court entered 14 findings of fact and 5 conclusions of law. In accordance therewith, the court entered its judgment, which recited that the defendants having been found not liable, the plaintiffs' complaint be dismissed with prejudice.

Plaintiffs have appealed from that judgment to this court.

The trial court found that, since 1949, the county had maintained 3 culverts under the county road near the southwest corner of appellants' property where the road crosses Clough Creek. As the result of heavy rains occurring in the watershed area of the creek for 8 days preceding and including November 30, 1964, a substantial amount of debris ² (including gravel, large pieces of wood, logs, and branches) came down from the watershed area, filling up the reservoir of the city of North Bend, which is located approximately one quarter mile upstream from appellants' property. Some of this debris flowed over the retaining wall of the reservoir down the creek toward appellants' property, forming dams or jams which sometimes created overflowing of the creek's floodwater which resulted from the heavy rains.

Findings Nos. 6 and 7 stated:

6. That the debris coming down from the watershed area was of an unprecedented nature and quantity, the result of the forces of nature, and for which King County was not responsible.

7. That the cause of the flooding of the creek on November 30, 1964 was the result of the unprecedented quantity and nature of debris in the creek.

With respect to the flooding which occurred on January 29 and 30, 1965, the trial court found that, for 8 days preceding that time, heavy rains occurred in the area, and that heavier rains had occurred in prior years. ³

In findings Nos. 9, 10, and 11, the court found:

9. That beginning the 29th of January 1965 to about noon the 30th of January 1965 there occurred flooding of the creek near the same junction of the creek and the county road which abated when the flood waters receded by the clearing of the culverts.

10. That the cause of the flooding of January 29 and 30, 1965 was a picket fence and large rock with similar debris which clogged one of the culverts thereby reducing the flow of water through the culverts by one third.

11. That agents of the county were employed and engaged to abate the flooding at the point of the culverts at both times of flooding, in November 1964 and again in January 1965.

The last two findings stated:

13. That the existing culverts are adequate to carry the flood waters of the creek.

14. That King County has not diverted the waters from Clough Creek.

Appellants have assigned error to portions of the findings of fact, to all of findings Nos. 6 and 7, quoted above, and to the court's conclusions of law Nos. 2 through 5.

We have held innumerable times that we will not substitute our evaluation of the evidence for that contained in the trial court's findings. Thorndike v. Hesperian Orchards, 54 Wash.2d 570, 343 P.2d 183 (1959), Sigman v. Stevens-Norton, Inc., 70 W.D.2d 886, 425 P.2d 891 (1967), Sander v. Wells, 71 W.D.2d 24, 426 P.2d 481 (1967).

In the present case, there was substantial evidence to support the findings to which error has been assigned, and hence we accept them as verities.

Appellants, in their brief, after citing several of our former decisions relating to flooding, state:

Appellants respectfully submit that defendants by placing and maintaining the culverts are responsible, not only should the culverts themselves, in an unplugged state, cause diversion of water over the flood banks of the stream and upon appellants' land, but also if said culverts collect debris which further obstructs the natural channel and causes such an overflow. In support of this position appellants have been unable to find any holding or dicta on the specific point by this Court. It is submitted, however, that the holdings of this Court above cited by logical deduction support this contention. The Courts of other states have dealt with this precise point and have ruled that the placing of an obstruction of such a nature which causes debris to accumulate, which would not otherwise...