Strickland v. City of Seattle, 36433

• Decision Date: 12 September 1963
• Docket Number: No. 36433,36433
• Citation: 385 P.2d 33,62 Wn.2d 912
• Parties: AI C. STRICKLAND and Clementine Strickland, his wife, Respondents, Corss-Appellants, v. The CITY OF SEATTLE, a municipal corporation, Appellant. Harold M. WHITAKER and Elizabeth Whitaker, his wife, Respondents, Corss-Appellants, v. The CITY OF SEATTLE, a municipal corporation, Appellant. James F. ROGERS and Paradene Rogers, his wife, Respondents, Corss-Appellants, v. The CITY OF SEATTLE, a municipal corporation, Appellant. J. M. JORGENSEN and Lila Jorgensen, his wife, Respondents, Cross-Appellants, v. The CITY OF SEATTLE, a municipal corporation, Appellant. R. A. ALLEN and Betty Allen, his wife, Respondents, Cross-Appellants, v. The CITY OF SEATTLE, a municipal corporation, Appellant. George W. THOMAS and Florence Thomas, his wife, Respondents, Cross-Appellants, v. The CITY OF SEATTLE, a municipal corporation, Appellant.
• Court: Washington Supreme Court

Page 912

62 Wn.2d 912

385 P.2d 33

AI C. STRICKLAND and Clementine Strickland, his wife, Respondents, Corss-Appellants, v. The CITY OF SEATTLE, a municipal corporation, Appellant.

Harold M. WHITAKER and Elizabeth Whitaker, his wife, Respondents, Corss-Appellants, v. The CITY OF SEATTLE, a municipal corporation, Appellant.

James F. ROGERS and Paradene Rogers, his wife, Respondents, Corss-Appellants, v. The CITY OF SEATTLE, a municipal corporation, Appellant.

J. M. JORGENSEN and Lila Jorgensen, his wife, Respondents, Cross-Appellants, v. The CITY OF SEATTLE, a municipal corporation, Appellant.

R. A. ALLEN and Betty Allen, his wife, Respondents, Cross-Appellants, v. The CITY OF SEATTLE, a municipal corporation, Appellant.

George W. THOMAS and Florence Thomas, his wife, Respondents, Cross-Appellants, v. The CITY OF SEATTLE, a municipal corporation, Appellant.

No. 36433.

Supreme Court of Washington, Department 1.

Sept. 12, 1963.

A. C. Van Soelen, Corp. Counsel, John P. Harris, Asst. Corp. Counsel, Seattle, for appellant.

Corbett, Siderius & Lonergan, Seattle, for respondents.

ROSELLINI, Judge.

These actions were brought by owners of waterfront properties on the west shore of Lake Washington, near the point where Thornton Creek flows into the lake. Thornton Creek is a natural watercourse draining a large area in Seattle and King County. Silt carried by the stream is deposited at its mouth, forming a delta. It was the theory of the plaintiffs that activities of the city had increased the amount of siltation, causing the delta to build up rapidly and interfere with the use and enjoyment of their property. The causes were consolidated and tried before a jury, which returned a verdict in favor of the city.

Prior to submission of the issue of constitutional damaging to the jury, the parties had stipulated that the question of damages only should be submitted, while the determination of whether injunctive relief should be afforded would be reserved for the court. Consequently, after the verdict was returned, the trial court took under consideration the question whether the delta constituted a nuisance, made findings that it did, and enjoined the city in each case from

'* * * maintaining a drainage system which collects and discharges into Thornton Creek any amount or any rate of silt or sediment in excess of the amount or rate which Thornton Creek transported in its natural condition. For the purposes of this injunction the natural capacity and the amount and rate of silting and sedimentation of Thornton Creek, in its natural condition, shall be as Thornton Creek existed prior to the year 1921.'

The injunction continued:

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED that unless the City of Seattle takes corrective measures to prevent the deposit of silt and sediment in excess of the amount or rate which Thornton Creek transported in its natural condition, then the City of Seattle shall be liable in damages to the plaintiffs.'

This injunction was founded upon the following conclusion of law entered by the court:

'The defendant City of Seattle in the erection, operation, and maintenance, use and repair of a connected system of storm sewage throughout the Thornton Creek watershed, within the corporate limits of the City of Seattle created a nuisance specially injurious to the plaintiffs by reason of the silt deposits upon the property of the plaintiffs, proximately caused by the acts of the defendant City of Seattle in the maintenance of its storm drainage system and its control of surface water within the area of the Thornton Creek watershed within its municipal boundaries.'

It is the position of the city that this conclusion and the injunctive decrees were not justified by the facts. The evidence was that the city had annexed about two thirds of the watershed in recent years, and that there has been a rapid urbanization of the area. The stream in question flows over private property for the most part, except where it crosses city streets. The city paved streets and constructed ditches and culverts to direct the flow of surface waters. It did not increase the area of the watershed or the amount of surface waters. It did construct sanitary sewers to serve a large part of the area, and these sewers diverted some of the water that had previously drained into the creek. It also took over a diversion weir which had been previously constructed and which was designed to take care of overflow.

There had twice been a flooding of properties of some of the plaintiffs during heavy rainfalls. Damages were awarded for these two invasions of the properties, and the city does not question the propriety of these awards. These was no evidence that the banks of the stream had overflowed on other occasions.

There was evidence that the channeling of surface water into ditches and the paving of streets and making of other improvements on land in the watershed resulted in an increased turbulence in the stream, which caused a greater amount of silt to be carried down the stream than was the case when the watershed was in its natural state.

We need not consider the city's contention that the jury verdicts foreclosed any determination by the trial court that it had created a nuisance. We think the applicable rule of law is clear. It is set forth in the case of Laurelon Terrace, Inc., v. Seattle, 40 Wash.2d 883, 246 P.2d 1113, and was recently restated in ...