Peters v. Lewis

• Decision Date: 19 April 1902
• Citation: 68 P. 869,28 Wash. 366
• Parties: PETERS v. LEWIS et al.
• Court: Washington Supreme Court

68 P. 869

28 Wash. 366

PETERS v. LEWIS et al.

Supreme Court of Washington

April 19, 1902

Appeal from superior court, King county; Boyd J. Tallman, Judge.

Action by Henry M. Peters against Swan Lewis and another. Judgment for defendants. Plaintiff appeals. Reversed.

H. E Foster, for appellant.

Ira Bronson, for respondents.

HADLEY J.

This action was brought by appellant against respondents to procure an injunction against an alleged discharge of drainage upon appellant's premises, and to recover damages alleged to have already accrued from such drainage. The complaint shows that appellant is the owner of a certain lot in the city of Seattle, upon which stands a building which is let to merchants and others for business purposes; that the property is valuable, and a source of great profit to appellant; that respondents are the owners of a certain lot adjoining that belonging to appellant, and on the south thereof; that on the north side of respondents' lot two buildings have been erected by respondents, which are used and occupied as dwelling houses; that the said two buildings are so situated upon respondents' premises that the drainage therefrom is discharged upon appellant's premises; that, for the purpose of preventing dirt and other accumulations from falling from respondents' premises upon appellant's premises, appellant constructed a wall or box head between the two, the same being necessary for the protection of appellant's premises; that respondents wrongfully and willfully continued to permit the drainage from their said buildings to be discharged upon appellant's premises, and that by reason thereof said wall or box head has been broken down, the floors of appellant's building have been greatly damaged, and a large amount of dirt has been deposited upon and against said building; that said drainage accumulations are greatly injuring his said building and annoying his tenants, and unless respondents are restrained, the building will be still further greatly damaged, and his injury will be irreparable. The damages are alleged to be $1,000, for which sum judgment is asked; and a perpetual injunction enjoining the further continuance of the acts complained of is also asked. To the complaint a demurrer was interposed by respondents on the ground that sufficient facts are not stated to constitute a cause of action. The demurrer was sustained, and judgment entered against appellant for costs. From such judgment this appeal was taken.

Respondents move to dismiss the appeal on the alleged ground that this is an appeal from an order denying a temporary injunction, and that under the authority of Colby v. City of Spokane, 12 Wash. 690, 42 P. 112, it is not an appealable order, since no finding was made that respondents are insolvent. We think, however, that the appeal should be treated as one from a judgment on an order sustaining a demurrer to the complaint; plaintiff having declined to plead further. It appears from the record that the court determined the whole matter upon what was deemed to be the insufficiency of the complaint, and, since appellant saw fit not to plead further, there was no further hearing open to him in the case, and the judgment became final and appealable. The motion to dismiss the appeal is denied.

It is assigned as error that the court sustained the demurrer to the complaint. It is insisted by the respondents that the complaint does not show that the drainage is more than a natural surface flow from respondents' lot toward and upon appellant's lot, and that no cause of action can be founded thereon. If the complaint showed only what is...