Papac v. City of Montesano

• Decision Date: 15 November 1956
• Docket Number: No. 33531,33531
• Citation: 303 P.2d 654,49 Wn.2d 484
• Parties: Katherine PAPAC, Respondent, v. CITY OF MONTESANO, a municipal corporation, Appellant.
• Court: Washington Supreme Court

Page 484

49 Wn.2d 484

303 P.2d 654

Katherine PAPAC, Respondent, v. CITY OF MONTESANO, a municipal corporation, Appellant.

No. 33531.

Supreme Court of Washington, Department 2.

Nov. 15, 1956.

Rehearing Denied Jan. 18, 1957.

O. M. Nelson, Montesano, for appellant.

John E. Close, Aberdeen, Paul B. Fournier, Montesano, for respondent.

ROSELLINI, Justice.

The plaintiff recovered judgment in the trial court in the amount of $3,000, the court having found that the defendant city had taken her property for public use and was maintaining a nuisance thereon, causing damage to her house. The city has appealed, assigning error to all of the material findings and conclusions.

The testimony showed that the home now owned by the plaintiff was built in the year 1911 over a gully or ravine which is the east branch of Sylvia creek and is a natural drainage for certain portions of the city of Montesano. In the year 1913 the city of Montesano embarked upon a street building program whereby the grade of certain streets was brought up to level and new streets were constructed. Included in this project was Seventh street, which crossed this branch of Sylvia creek fifty feet east of the plaintiff's property, which was then owned by one Mitchell Zvono. One lot intervened between this property and Seventh street. We will refer to this lot hereafter as the Bogdanovich property and to the plaintiff's property as the Papac property.

In grading seventh street, the city placed a tile drain pipe in the creek bed and filled the ravine to bring the street up to level. The fill was extended over the Bogdanovich property; and apparently some fill was also placed on the Papac property, although there was no direct evidence that this was done by the city. The then owner of the Bogdanovich property placed a tile drain, or culvert, under the fill, connecting with the city's culvert at Seventh street.

In its street improvement program, the city graded Fourth street three blocks east of Seventh. Mitchell Zvono testified that this increased the flow of water into the natural drainage of the east branch of Sylvia creek. This testimony was contradicted by an engineer who testified for the defendant. The trial court found that the grading of Fourth street almost doubled the flow of water in the east branch of Sylvia creek.

When the plaintiff's house was built in 1911, a cedar plank culvert, which was sufficient to take care of the natural flow of water under the house, was built across the Papac property.

In 1916, Zvono and Papac, who later became the plaintiff's husband and is now deceased, left Montesano for Montana and Alaska. When Zvono returned in 1919, he found a large hole in the fill. He complained to the mayor, who referred him to what he described as the 'ditch committee.' The old culvert was replaced by the city with a culvert made of fir planking, and the hole was filled. In 1933, the city, through a public works project, replaced the fir culvert with two twelve-inch used city water pipes, which were made of wood and wrapped with wire.

The Papacs were deeded a one half interest in the property in 1920, and the remaining interest in 1930.

Sometime between 1946 and 1948, a break occurred in one of the drain pipes. The pipes have since rotted out, and the house has deteriorated rapidly. The planks in the basement (constructed sometime between 1930 and 1940) have rotted, molded, and become termite-ridden, and the house has shifted on its foundation. The evidence regarding the causative factors was conflicting; but the trial court found that the damage was caused by the water overflowing from the rotted drain pipes. There was testimony that during the rainy season the ground is wet under the house, due to the fact that the water flows outside the pipes.

The city has no easement across the Papac property. There was no evidence that the work done there was authorized by the city council or that similar work had been done on other private property. Neither was there any evidence that the placing of a drain across the Papac property would benefit the public.

The trial court found that the damage in 1919 to the original culvert was due to the fill work and the increased flow of water, and that from that date the city assumed the burden of maintaining the culvert. The court concluded that the city, by allowing diverted drainage waters to flow uncontrolled over the plaintiff's land, is maintaining a public nuisance, which should be abated. It ordered the abatement of the nuisance either by the construction of adequate drainage across the plaintiff's property or by diverting the flow of water away from the property.

There is no question but that the gully over which the plaintiff's predecessor built has house is a natural drainage system, and there is nothing in the record to support the trial court's finding that the flow of water in this gully was almost doubled by the grading of Fourth street. An engineer called by the defendant testified that the land east of Fourth street is lower than the grade of the street and that water would tend to drain east of the street as well as west. Zvono testified that there had always been drainage from east of Fourth street, but that it had increased after the street was graded. He did not attempt to say how much the flow had increased. There was no evidence that the increased flow would tend to cause a wooden culvert to rot. On the other hand, there was testimony by several witnesses for both parties that rotting is caused by the alternate moistening and drying out of wood, a condition which occurs as a result of the wet and dry seasons. We will assume, however, that the evidence was sufficient to support a finding that the flow of water was substantially increased and that it caused the wooden pipes to deteriorate more rapidly than they otherwise would have. The defendant maintains that the plaintiff's cause of action for such damage is barred by the statute of limitations.

Where property is taken or damaged in the exercise of the power of eminent domain, the three-year statute of limitations applies. Gillam v. City of Centralia, 14 Wash.2d 523, 128 P.2d 661. The damaging of land by the construction of a street or highway, causing it to be flooded by surface waters, is a taking and damaging, within the meaning of Art. I, § 16 (amendment 9) of the constitution. Harkoff v. Whatcom County, 40 Wash.2d 147, 241 P.2d 932; Ulery v. Kitsap County, 188 Wash. 519, 63 P.2d 352. The period of limitation begins to run when the project causing the damage is completed if substantial damage has already occurred, Gillam v. City of Centralia, supra, or when the first substantial injury is sustained. See Jacobs v. City of Seattle, 100 Wash. 524, 171 P. 662, L.R.A.1918E, 131. If the injury is permanent, the measure of damages is generally the difference between the market value of the property immediately before, and immediately after, the damage; if it is temporary, the measure of damages is generally the cost of reconstruction, with compensation for loss of use in a proper case. Harkoff v. Whatcom County, supra.

It is apparent that the first substantial damage occasioned by the regrading of Fourth street and the placing of the fill on the Papac property, occurred sometime prior to 1919. Whether the placing of the fill be regarded as a tortious invasion, in which case the three-year statute would apply, under the provisions of Rem.Rev.Stat.Sup. § 159, cf. RCW...