Olson v. King County

• Decision Date: 25 May 1967
• Docket Number: No. 38811,38811
• Citation: 71 Wn.2d 279,428 P.2d 562,24 A.L.R.3d 950
• Court: Washington Supreme Court
• Parties: , 24 A.L.R.3d 950 Gerald OLSON and Amy S. Olson, his wife, George E. Handley and Jessie Handley, his wife, and David A. Norton and Margery Norton, his wife, Respondents, v. KING COUNTY, Appellant.

Page 279

71 Wn.2d 279

428 P.2d 562, 24 A.L.R.3d 950

Gerald OLSON and Amy S. Olson, his wife, George E. Handley and Jessie Handley, his wife, and David A. Norton and Margery Norton, his wife, Respondents, v. KING COUNTY, Appellant.

No. 38811.

Supreme Court of Washington, Department 1.

May 25, 1967.

Charles O. Carroll, Pros. Atty., James E. Kennedy, John M. Watson, Deputy Pros. Attys., Seattle, for appellant.

Abbott & Curtis, James V. Abbott, Seattle, for respondents.

HILL, Judge.

This is an appeal by King County from judgments against it recovered by three contiguous property owners, referred to herein as Olson, Norton, and Handley. They each brought an action against King County on three theories: (1) negligence; (2) a taking and damaging of their property in violation of Art. 1, § 16 (amendment 9) of the Washington State Constitution; and (3) nuisance. The three cases were consolidated for trial; likewise for the appeal.

The plaintiffs own lakefront homes on the west side of Lake Sammamish. West of them is West Side Lake Sammamish Road with an access lane between their homes and the road. Still further west and at a considerably higher elevation is Northrup Road.

On the west side of Northrup Road and extending in a general northerly and southerly direction, lies a real estate development known as Lake Hills No. 26. The development is bordered on the east by Northrup Road, on the north by Northeast 8th Street, and on the west by 172nd Place Northeast. The property to the west and north of Lake Hills No. 26 had been developed for a number of years. Clearing, cutting, and grading work had been carried on in Lake Hills No. 26 during the summer and early fall of 1962.

The cause of the damage to the plaintiffs' properties is well expressed in the trial court's finding of fact No. 10:

That West Lake Sammamish Highway and Northrup Road intersect at a location approximately near Lot 35 of Lake Hills #26. Northrup Road extends from this point in a northerly direction, and West Lake Sammamish Highway extends from this point in a generally northeasterly direction.

At a point some two to three hundred feet north of the intersection of Northrup Road and West Lake Sammamish State Highway, on Northrup Road, is a King County culvert under said road, referred to generally as the 'No. 1' or 'Olson' culvert. This culvert drained water from the storm drainage ditch on the west side of Northrup Road. The outfall of the 'Olson' culvert was located just a little bit below the surface grade of Northrup Road, on the east side of said road, with the outfall virtually at the top of the shoulder of the road. That the shoulder of the road was made up of earthen fill, and the shoulder fell off to an embankment some thirty to thirty-five feet deep. The outfall of water was allowed to cascade down this earthen fill into a small ravine, thence travel in a general easterly direction down to the West Lake Sammamish State Highway where a catch basin is located. The water was then carried under the State Highway to a collection box on the east side thereof, thence through private culverts, belonging to plaintiff Olson, through his property and on to Lake Sammamish.

On November 24, 1962, an unusually heavy rainfall was experienced throughout the whole Lake Hills and Lake Sammamish area, which caused a considerable run-off. The origin of a substantial amount of water which reached the 'Olson' culvert, came from areas to the north and to the west of Lake Hills #26, and approximately two blocks west and uphill of the intersection of Northeast Eighth and Northrup Road, and from the north of Northeast Eighth in an area outside of Lake Hills #26. The water flowed east on Northeast Eighth, by-passing the culvert on Northeast Eighth, because of its being clogged, and continued on south on the west side of Northrup Road. A number of King County culverts along the west side of Northrup Road which are intended to collect water from the west storm drainage ditch of Northrup Road, and discharge the water on the east side of said road, were clogged and that the water continued on its course down the west side of Northrup Road, eventually reaching the 'Olson' culvert. The water then proceeded through the 'Olson' culvert, falling to the east side of Northrup Road at the outfall of said culvert.

The water which flowed through the 'Olson' culvert eroded the east shoulder and earthen fill embankment of the road, causing a complete washout of said embankment and one half of King County's Northrup Road in this area. That the many hundreds of yards of material from this washout flowed through the ravine and under the West Lake Sammamish Highway culvert and erupted at the west end of 'Olson's' private culvert causing debris to be cast upon all of the plaintiffs' properties.

The negligence of King County, which was the proximate cause of the damage sustained by the plaintiffs, is set forth in finding of fact No. 11:

That many years prior to 1962 King County constructed culverts under Northrup Road, including the 'Olson' culvert. That the 'Olson' culvert was constructed of sections of concrete pipe, without cement or grouting between said sections and that said sections of pipe were approximately 3 feet in length and 18 inches in diameter. That on the east side of Northrup Road at the outfall of the 'Olson' culvert there was no splash apron or hard surface material provided to carry the water from the outfall down to the base of the slope some thirty-five feet.

That good construction practice and standard of care requires that on the outfall side of a culvert such as this that the water be in some manner carried above the fill so as not to allow the washing of rock, sand, dirt and gravel. That standard construction practice is that the water either be allowed to flow down a splash apron, or that it be carried in an enclosed pipe from the outfall of the culvert to a point below the toe of the earthen fill embankment so as to prevent the washing of any materials from said embankment. That King County failed to properly construct said culvert outfall.

That defendant * * * King County, failed to exercise the proper degree of care in the construction of the outfall area of the 'Olson' culvert.

This is not a case of a culvert being unable to carry the runoff with resulting flooding. Indeed, the maximum amount of water carried by the culvert was only about two-thirds of its capacity. Had the county done what good engineering practice required--provided a splash apron or hardsurface material to carry the water from the outfall to the base of the slope--the plaintiffs would have sustained no damage. As indicated, it was the material eroded from the embankment which caused the damage.

The plaintiffs had joined as additional defendants certain property owners, developers and contractors, who were participating in the development of Lake Hills No. 26, on the theory that they had been negligent in certain of their activities and such negligence had increased the flow of water through the No. 1 culvert; and King County had cross-complained against the same defendants.

One of the contentions of the county was that the plaintiffs had failed to segregate or apportion their damages between the county and these additional defendants.

With relation to the contribution of the defendants, other than King County, to the damages sustained by the plaintiffs, the court made the following finding of fact:

The development of Lake Hills #26 by clearing and grading did not increase the natural flow of water beyond the natural capacity and capabilities of the storm drainage system and culverts. The storm drainage culverts and ditches did not overflow or overtop their confines and that all of the waters which came down said drainage facilities in November and December of 1962, would have continued on out to Lake Sammamish had there not been any erosion and washing away of the earthen-fill embankment on Northrup Road at the outfall side of the 'Olson' culvert.

The flow of the surface water along the natural drains may have been hastened or incidentally increased by the clearing and grading of Lake Hills #26; however, the water was not ultimately diverted from its natural flow, nor was the drainage increased beyond the capacity of the complete water course and system in its natural condition. (Finding of fact No. 16)

The facts, as found by the trial court, are supported by substantial evidence and justified dismissing from the case the defendants who owned or were developing property in Lake Hills No. 26. These facts support the trial court's conclusion that the county alone was responsible for the damages sustained by the plaintiffs. This disposes of the county's contention that the damages should have been segregated or apportioned.

The county's further contention that the damages were excessive is predicated upon two propositions: first, that there was no taking or damaging in violation of the constitution; and, second, that any recovery for damages occasioned by the county's negligence was limited to the amount of damages set forth in the claims which were filed against the county.

The trial court felt that under either theory, I.e., a constitutional taking and damaging or the negligence of the county, the damages would be the same.

We see no constitutional taking or damaging in this case. Every trespass upon, or tortious damaging of real property does not become a constitutional taking or damaging simply because the trespasser or tort feasor is the state or one of its subdivisions, such as a county or a city.

There have been two factors which have furnished some excuse for warping and torturing the results of tortious conduct into a constitutional taking or damaging of property. One, the immunity from tort liability long enjoyed by the state and its subdivisions; and, two, the failure on the part of the owners of obviously damaged property to file the claims which were...