State ex rel. Matson v. Superior Court of Skagit County

• Decision Date: 04 April 1906
• Citation: 85 P. 264,42 Wash. 491
• Parties: STATE ex rel. MATSON et al. v. SUPERIOR COURT OF SKAGIT COUNTY et al.
• Court: Washington Supreme Court

85 P. 264

42 Wash. 491

STATE ex rel. MATSON et al. v. SUPERIOR COURT OF SKAGIT COUNTY et al.

Supreme Court of Washington

April 4, 1906

Certiorari by the state, on the relation of Charles Matson and another against the Superior Court of Skagit county and others to review the proceedings for the establishment of a drainage district. Reversed.

Benton Embree, for plaintiffs.

Million & Houser, for defendants.

CROW J.

This is a certiorari proceeding, instituted for the purpose of having the court review the orders and proceedings of the superior court of Skagit county in approving and establishing a drainage system, and calling a jury to assess damages to the lands of the relators and other property owners for rights of way for the ditches necessary for said system, and to assess against lands to be benefited within said district the costs and expenses of establishment and construction. On October 4 1905, a petition was filed in the superior court of Skagit county by Daniel Sullivan, Erasmus S. Johnson and William A. Walters, commissioners of drainage district No. 16, as plaintiffs, against Charles Matson and Bertha Matson, his wife, the relators herein, and also against all other property owners and persons interested, as defendants. Said petition contained a full description of all lands within said district, and alleged that the commissioners proposed to construct for the benefit of all such lands a system of drainage consisting of eight ditches; that a survey and plat of said district had been made, showing the owners of property, the drainage system proposed, and lands necessary to be condemned for rights of way, which plat was attached by said petition and made a part thereof; that the lands within said district were marshy and covered with water; that the proposed improvement would be conducive to the public health, convenience, and welfare, and would increase the value of all lands within said district as estimated for the purpose of public revenue; that said lands were valuable for agriculture; that said system of drainage was necessary so that said lands could be cultivated at a profit; that the names of owners whose lands were to be benefited, the number of acres owned by each, the maximum amount of benefits per acre, were as set forth in said petition in detail; that for the purpose of carrying on said proposed improvements it would become necessary to appropriate certain strips of land belonging to the various owners therein named, and that the estimated values of said lands, and the estimated damages, irrespective of benefits to be derived by each tract, were as set forth in said petition. Said commissioners prayed an adjudication that said proposed system would constitute a public improvement, that the lands sought to be appropriated were necessary therefor, and asked that a jury be called to assess all benefits and damages to lands not taken, and also the compensation to be paid for lands taken for right of way. The original petition alleged no plans, details, or specifications for the construction of said improvement disclosing the exact character of the work further than the same might be shown on the plat attached as an exhibit. No draughts of any artificial appliances or equipment necessary in aid of said improvement, together with its estimated cost, were filed with said original petition. The attached exhibit was a large plat of the entire district, showing the Samish river as the western boundary, the North Samish river, also called the 'Edison slough,' as a portion of the northern boundary; also showing on the western margin of the district a large slough known as 'McTaggart slough,' tributary to the Samish river, and further within the district a second slough, known as the 'Sullivan slough,' tributary to the McTaggart slough; and also showing, near the central portion of the western boundary of the district, another slough, known as the 'Johnson slough.' All of these sloughs were available for use as reservoirs in said system, but the exact method of their proposed use was not stated, defined, or detailed. The plat further shows two main ditches, one, known as the 'Johnson slough ditch,' beginning on the eastern boundary of the district and running directly west into the Johnson slough, connecting with the Samish river, the other, known as the 'North Samish river ditch,' commencing near the lower line of the district, running in a northerly course through its central portion, for a distance of a mile, and thence in a northerly and northwesterly direction into the Edison slough. Another ditch, known as the 'Sullivan slough ditch,' was to commence about one-half mile south of the Johnson slough ditch, which it crossed, and run in a northerly direction into the Sullivan slough, McTaggart slough, and Samish river. All other proposed ditches, five in number, were spurs or tributary to these main ditches. The two main ditches, the Johnson and the North Samish river, as originally proposed, were to cross each other at the southwest corner of section 4, on the south line of the land of the relators The plat does not show the width or depth of the proposed ditches, or the character of the work, nor does it provide for any boxes or flumes with flood tide gates where the ditches connect with said sloughs. The district is composed of lands below the level of high tide, protected by dikes. These dikes would obstruct the flow of drainage water from ditches and sloughs into the Samish river at low tide, were it not that boxes or flumes may be placed in the ditches and sloughs where they cross the dikes; the gates of said boxes and flumes closing during high tide and opening during low tide, so that the drainage from the district may be carried away.

The relators, Matson and wife, moved the court to require the commissioners to make their petition more definite and certain by setting forth or annexing thereto draughts specifications, and plans of the boxes or flood tide gates to be maintained in the North Samish river and various sloughs. This motion being sustained, the commissioners filed as an exhibit a single draught or general plan for a box or flume. No specifications were attached thereto, but the draught was drawn upon a scale disclosed thereon. By stipulation this draught was accepted as an amendment to the petition. The commissioners further amended their petition by inserting an additional paragraph, stating the sizes of the proposed ditches, by giving their respective proposed widths and depths. By said amendment they further alleged that a box with a flood tide gate would be maintained in the North Samish river where a dam is now constructed; that, if necessary, a box with a flood tide gate would be placed at the mouth of the North Samish river ditch; that a box with a flood tide gate would be maintained at the mouth of the Johnson slough; that one or more boxes as may be necessary would be maintained in a dam across the mouth of McTaggart slough; that the estimated amount of earth to be removed in constructing the North Samish river ditch from the point where it crosses the Johnson ditch to its month will be 25,000 yards, at an approximate cost of $3,500; that the approximate cost and estimate for the construction of all the other ditches, and the remaining portion of the North Samish river ditch, will be $1,500; that the costs of the proceedings were estimated at $500; that the costs of procuring right of way were estimated at $500; and that that part of the proposed Sullivan slough ditch, from the Sullivan slough to the Johnson ditch, was to be abandoned and not constructed. The relators thereupon demurred to this amended petition, which demurrer being overruled the issues were completed by answer and reply, and a hearing was had on December 4, 1905. The court on December 11, 1905, made findings of fact in favor of the commissioners, and ordered a jury to be impaneled to estimate the values of the lands to be taken, and separately determine the damages and benefits to lands not taken. Prior to the entry of this order the commissioners asked leave to further amend their petition by alleging their intention of constructing a dam across the Johnson slough ditch, immediately west of its junction with the North Samish river ditch. The trial court did not immediately grant this request, but directed the commissioners to notify all defendants of their proposed amendment. Afterwards, on December 20, 1905, the matter came on further for hearing upon the question of the allowance of the amendment, and, all parties having been notified and the relators appearing by their attorneys, the amendment was allowed. Thereupon a new hearing was had, at which it was stipulated that the evidence theretofore introduced should be considered by the court and additional evidence might be offered. On both hearings the main contest was over that portion of the proposed North Samish river ditch lying north of its junction with the Johnson slough ditch. No estimate of the cost of this ditch, or, in fact, any of the ditches, was made by the engineer who had prepared the plat. At the hearing the attorney for the commissioners, without further amending their petition, stated that it was not their present intention to construct or complete any of the proposed system, except that portion of the North Samish river ditch north of its junction with the Johnson ditch. Nevertheless an order was made for the condemnation of the right of way for all the proposed ditches and spurs, except that portion of the Sullivan slough ditch which had been taken out by the first amendment of the petition. No showing was made at to the cost or size of the boxes or flumes at the various sloughs. At the close of all the evidence the relators moved for a...