North Bend Lumber Co. v. City of Seattle

• Decision Date: 04 April 1928
• Docket Number: 20951.
• Citation: 147 Wash. 330,266 P. 156
• Parties: NORTH BEND LUMBER CO. v. CITY OF SEATTLE.
• Court: Washington Supreme Court

266 P. 156

147 Wash. 330

NORTH BEND LUMBER CO. v. CITY OF SEATTLE.

No. 20951.

Supreme Court of Washington

April 4, 1928

Department 1.

Appeal from Superior Court, Pierce County; Ernest M. Card, Judge.

Action by the North Bend Lumber Company against the City of Seattle. Judgment for plaintiff, and defendant appeals. Affirmed.

Thomas J. L. Kennedy, Ray Dumett, and Arthur Schramm, Jr., all of Seattle, for appellant.

Peters & Powell and Reames & Moore, all of Seattle, for respondent.

PARKER J.

In May 1919, the plaintiff lumber company commenced this action in the superior court for King county seeking recovery of damages alleged to have been suffered by it as the result of the negligent action of the defendant city in impounding the waters of Cedar river for generating electric power. More particularly, the claimed damages are alleged to have resulted, in December, 1918, from the city raising the level of the impounded waters to such height that they were thereby caused to escape through the northerly porous moraine barrier of the city's impounding reservoir in such sudden flood quantities as to completely overwhelm and destroy the lumber company's mill plant situated some three miles northerly from the city's reservoir on ground some 800 feet lower. The lumber company also, in two additional causes of action sought recovery upon two assigned damage claims resulting from the same catastrophe. In December, 1919, the case proceeded to trial in the superior court for King county resulting in a verdict in favor of the city. Thereafter the superior court granted to the lumber company a new trial. In August, 1921, upon the city's appeal, this court affirmed the superior court's order granting the new trial. 116 Wash. 500, 199 P. 988, 19 A. L. R. 415. In September, 1925, the lumber company moved the superior court for King county for an order changing the place of the trial of the action to some other county, on the ground 'that an impartial trial cannot be had in King county.' In April, 1926, that motion, having been heard upon numerous affidavits, was by the court granted and an order entered accordingly transferring the case to Pierce county for trial in the superior court for that county. On January 4, 1927, the case proceeded to trial in the superior court for Pierce county and continued without interruption until March 14, 1927, when the jury returned a verdict awarding recovery to the lumber company on its first cause of action in the sum of $313,308.67; on its second cause of action, in the sum of $2,475; on its third cause of action, in the sum of $21,162.13--the second and third causes of action being the assigned claims. On April 27, 1927, the city's motion for new trial having been overruled, final judgment was rendered awarding to the lumber company against the city recovery in accordance with the verdict of the jury. From this judgment of the superior court, the city has appealed to this court. The seemingly long delay in finally bringing the case to trial the second time was because of protracted negotiations and efforts looking to a compromise and settlement of the controversy.

The Cedar river runs generally in a northwesterly direction to a point some two miles below the city's dam, which was constructed to impound the waters of the river. At that point, the river having fallen some 500 feet through the canyon below the dam, it turns abruptly to the southwest, there entering and following southwesterly a narrow valley which extends from that point to the northeast into the Snoqualmie river watershed, as well as to the southwest into the Cedar river watershed. The Snoqualmie river, some three miles northeast from the Cedar river, along the portion of the Cedar river's course in question, also runs generally in a northwesterly direction, roughly paralleling that portion of the Cedar river. The apparent surface line dividing the watersheds of these rivers crosses the narrow valley loss than one-half mile northerly from where the Cedar river turns to the southwest in the valley; and runs thence easterly irregularly up the hills to a point a short distance northerly from the city's dam, and thence easterly along the glacial moraine approximately one mile to the base of Mr. Washington, which rises between the rivers to an altitude of some 4,200 feet above sea level. This moraine divide is of considerable width and has an extreme elevation of approximately 1,600 feet above sea level. Water finding its way into the moraine drains out therefrom fully as much or more northerly into the watershed of the Snoqualmie river as southerly into the watershed of the Cedar river. Indeed, the evidence warrants the conclusion that a considerable quantity of the water within the apparent Cedar river watershed, that is, south of the crest of the moraine, drains through the moraine into the Snoqualmie watershed. Rattlesnake Lake, a body of water about a mile long and one-quarter of a mile wide, lies in the narrow valley about one-half mile north of where the Cedar river turns to the southwest, the lake being in the watershed of the Snoqualmie river. A branch of Boxley creek flows out of the northerly end of the lake, and, about one mile northeasterly therefrom, uniting with another branch of that creek which rises on the northerly slope of the moraine about one mile east of the lake, flows on northerly into the Snoqualmie river some two and one-half miles distant from these respective sources.

The lumber company had constructed, maintained and operated, for many years prior to the catastrophe in question, its large well-equipped sawmill plant on Boxley creek near where it empties into the Snoqualmie river. The mill plant of one of the lumber company's assignees and the property of the other of the lumber company's assignees were similarly situated, and each was damaged by the catastrophe which damaged the lumber company's mill plant. In the year 1914, the city commenced the construction of its concrete dam in the Cedar river, with a view of impounding the waters of that river to generate electric power. There was left a large opening in the foot of the dam, some 12 feet in diameter, to let the river freely flow through while construction work was progressing. The dam was ultimately built so that its crest was about 1,600 feet above sea level, with a notch in its crest some 30 feet deep with a view of ultimately regulating, if necessary, the level of the water when arising above the bottom of the notch. In October, 1918, the city 'plugged' the opening in the bottom of the dam and thereby commenced to raise the waters behind the dam in its reservoir. As the water rose behind the dam, the flow of water from the northerly slope of the moraine into the lake and the branches of Boxley creek increased. On December 23, 1918, the surface of the water in the reservoir behind the dam had reached approximately 1,550 feet above sea level, and then occurred a large slide and washout on the northerly slope of the moraine above the source of the easterly branch of Boxley creek, reaching up to approximately 1,500 feet above sea level, causing the release of a vast quantity of water, the sudden flooding of Boxley creek, and the practically complete destruction of the mill plant of the lumber company and the property of its assignees situated upon and near the creek some two miles down stream and some 700 feet lower. The case was prosecuted in behalf of the lumber company resulting in the verdict and judgment awarding it recovery upon the theory, in substance, that the city negligently impounded the waters of the Cedar river to the height they were so impounded without using proper precaution to ascertain that such impounding could be safely done, in view of the porous condition of the moraine constituting the northerly boundary of the reservoir, and that the flood waters so suddenly turned loose in Boxley creek were largely the impounded waters in the city's reservoir; and hence the city became liable for the damage so resulting to the lumber company and its assignees. This very general summary of facts is not made with any view of showing that the evidence supports the verdict and judgment, no contention here being made as to the sufficiency of the evidence to support the verdict and judgment; but is made to give a general view of the outstanding features of the controversy, to the end that the claims of error be more readily understood.

It is contended by counsel for the city that the superior court for King county erred in granting the change of venue to Pierce county; it being first argued in that behalf, in substance that the action is purely local to King county, and that therefore the superior court for Pierce county could not legally acquire jurisdiction to try the action. We may concede that the action is local, and not transitory, in the sense that it should have been commenced in King county, since the city, the only defendant, is in King county, the injuries to the properties of the lumber company and its assignees all occurred in King county, and all acts of the city complained of occurred in King county. This seems to have been recognized as the law in the following of our decisions, though we have no statute in express terms so providing with reference to actions against counties: State ex rel. King County v. Superior Court, 104 Wash. 268, 176 P. 352; Howe v. Whitman County, 120 Wash. 247, 206 P. 968, 212 P. 164. But surely this action is, in no event, more purely local than is an action to foreclose a mortgage on real property local to the county in which the real property is situated; for, as to such action, it is expressly provided by section 204, Rem. Comp. Stat., that it 'shall be commenced in the county in which the subject...