Ronkosky v. City of Tacoma

• Citation: 71 Wash. 148,128 P. 2
• Court: Washington Supreme Court
• Decision Date: 22 November 1912
• Parties: RONKOSKY v. CITY OF TACOMA. HANNAM v. SAME.

128 P. 2

71 Wash. 148

RONKOSKY v. CITY OF TACOMA.

HANNAM v. SAME.

Supreme Court of Washington

November 22, 1912

Department 2. Appeal from Superior Court, Pierce County; Wilson R. Gay Judge.

Two actions, one by F. W. Ronkosky, the other by John Hannam both against the City of Tacoma. Actions dismissed, and plaintiffs appeal. Reversed and remanded.

Frank S. Carroll, of Tacoma, for appellants.

T. L Stiles, F. R. Baker, and Frank M. Carnahan, all of Seattle for respondent.

ELLIS J.

These two actions were, by stipulation of the parties, tried together. A motion for nonsuit was sustained as to each case, and from that order and judgments of dismissal thereon the plaintiffs in both cases have appealed. By further stipulation both cases are here for consideration upon the same statement of facts.

Where Steele street and North Twenty-Ninth street, in the city of Tacoma, intersect, there is a deep gulch, in the bottom of which flows a perennial stream, carrying a small amount of water in the summer time, but a much larger volume in the rainy season. Years ago the city graded Twenty-Ninth street across the gulch by cribbing and filling it to a height of 45 feet above the bottom of the gulch. A culvert was constructed beneath the fill, sufficient to permit the passage of the waters of the creek, so far as the evidence shows, at all seasons. The appellant Hannam was the owner of a small dwelling house, barn, and woodshed, situated in the gulch a short distance above or up the stream from the fill. These buildings were constructed subsequently to the filling of the street. The appellant Ronkosky, as Hannam's tenant, occupied the premises at the time here in question. The evidence shows that during recent years the culvert, either by reason of decay, or by its becoming partially obstructed, had ceased to carry the water as effectively as at first, so that at times of heavy rains the water would back up in the gulch to some extent, but not sufficiently to flood the buildings or cause damage. There was evidence from which it might reasonably be inferred that the culvert was in a state of decay, since witnesses testified that several times during the three or four years immediately preceding the catastrophe the fill above the culvert had sunken, so as to necessitate filling with brush and sand in order to restore the grade of the street. It further appears that the city had been notified that the culvert was becoming clogged, and that some time before the catastrophe there had been some talk of constructing a tunnel beneath the fill. About November 20, 1910, there occurred a very copious rainfall, and the water began to accumulate in the gulch above the fill. The appellant Ronkosky set a stake and observed it for a time, but seems to have concluded that it would not rise to a sufficient height to flood the house. He and his family went to bed and, near midnight, were awakened by the noise of water about the house. He had barely time to escape with his wife and children before it was completely flooded. None of his household goods were rescued, save the stove. By morning the buildings were all washed from their foundations and floating about in a lake of water 45 feet deep. This condition continued for a week, when the city, in an effort to drain the pond, cut the cribbing at the lower side of the fill. The structure gave way, and the water went through with a rush, carrying the buildings with it and wrecking them. Ronkosky lost his tools, chickens, winter firewood, family clothing, and household goods; Hannam, his buildings. Ronkosky had paid his rent for some four months in advance. He sued for this loss and the value of his property; Hannam, for the loss of his buildings. The negligence charged in each case was that the respondent city permitted the culvert to become clogged, thus causing the accumulation of water, and afterwards cut away the cribbing, causing the fill to give way, thus completely destroying the buildings and washing away the household goods, tools, and wood.

The respondent contends that these actions were properly dismissed under the 'common enemy' doctrine of the common law as applied to surface water. It is urged that the decisions of this court, in Cass v. Dix, 14 Wash. 75, 44 P. 113, 53 Am. St. Rep. 859, Harvey v. Northern Pacific R. Co., 63 Wash. 669, 116 P. 464, and Wood v. Tacoma, 66 Wash. 266, 119 P. 859, are determinative of the issue, and that, as a matter of law, the city was under no obligation to furnish drainage for surface water. For two good reasons, the doctrine announced in those decisions has no application to the facts here presented.

1. In the first place, when water, from whatever source, is collected into a natural stream or water course, where the drainage of the surrounding country has been accustomed immemorially to flow, it is no longer an outlaw or common enemy. Such a stream must be recognized as a permanent physical condition, with which no one may with impunity interfere to the detriment of another.

'And here it is important to distinguish between natural streams flowing in channels between defined and actual banks and surface water, caused by rain or melting snow; for the law relating to them is essentially different, and the powers of the municipality much greater with respect to the latter than the former. Assuming the stream to be of the former character, and that the municipality is without any valid legislative powers changing what would otherwise be the legal rights of the parties, its authorities under the general power to grade and improve streets, or construct public inprovements beneficial to it, cannot deprive others of their legal rights in respect of the water course, or injure the property of others by badly constructed and insufficient culverts or passageways obstructing the free flow of the water, without being liable therefor.' 4 Dillon, Mun. Corp. (5th Ed.) § 1731.

'In considering the liability of municipal corporations for injuries to private property in consequence of being overflowed with water, caused by improvements made or work done upon streets...