Suter v. Wenatchee Water Power Co.

• Citation: 76 P. 298,35 Wash. 1
• Court: Washington Supreme Court
• Decision Date: 18 April 1904
• Parties: SUTER et ux. v. WENATCHEE WATER POWER CO.

76 P. 298

35 Wash. 1

SUTER et ux. v. WENATCHEE WATER POWER CO.

Supreme Court of Washington

April 18, 1904

Appeal from Superior Court, Chelan County; C. Victor Martin, Judge.

Action by P. D. Suter and wife against the Wenatchee Water Power Company. From a judgment for plaintiffs, defendant appeals. Reversed.

Will H. Thompson, Danson & Huneke, and Burt J Williams, for appellant.

Dill &amp Crass, for respondents.

HADLEY J.

Respondents are husband and wife, and the appellant, a corporation, is the owner and operator of an irrigation canal, with lateral connections, in Chelan county, Wash. The canal was constructed prior to 1899. It commences about five miles above the mouth of the Wenatchee river, follows along the bank of said river a distance of about four miles, and thence one branch extends in a northeasterly direction to a point near the Columbia river. This suit was brought by respondents against appellant, and the complaint alleges that the said lateral canal was constructed, about five feet wide and three feet deep, to the point last mentioned; that from said point appellant plowed a furrow across and around the lands of respondents, leading to the Columbia river, which furrow was about twelve inches in width and six inches in depth; that the furrow was not of sufficient capacity to carry away and around the lands of respondents the volume of water conveyed to said point as the terminus of the original canal. It is further alleged that the appellant carelessly and negligently constructed said canal, by failing to supply the necessary waste gates and means for the escape of the surplus accumulation of water before it arrived at respondents' land, and also failed to properly attend to the escape of such surplus accumulation; that on or about June 10, 1900 the appellant permitted the waste and surplus water which naturally drained from the country lying above said canal to accumulate therein to such an extent as to fill it to its full capacity; that appellant permitted the water to flow along said original canal, to its full capacity, to the point of its terminus aforesaid; that the aforesaid furrow leading from said terminus was wholly insufficient in capacity to receive and convey the water which had thus accumulated in the original canal; that, by reason of the insufficiency of said furrow for said purpose, the waters overflowed, washed, and cut through the bank of the furrow and the end of the canal, and thence ran over and across the lands of respondents and down into the Columbia river; that thereby such deep and wide ditches were washed and cut in said land as damaged it to the extent of $1,000; and recovery thereof is demanded. Appellant demurred to the complaint, on the ground that it appears upon the face thereof that the action was not commenced within the time prescribed by law. The demurrer was overruled, to which ruling appellant excepted. Appellant then answered, denying material allegations of the complaint, and, among other things, pleaded affirmatively that the acts complained of occurred more than two years prior to the commencement of the action, and that, if respondents ever had any cause of action whatsoever on account of said acts, the same had been barred by the statute of limitations. A demurrer to said affirmative defense was sustained, and appellant excepted thereto. The cause was thereafter tried before the court and a jury, and a verdict was returned in favor of respondents in the sum of $300. Appellant moved for a new trial, which was denied. Judgment was entered for the amount of the verdict, and the defendant has appealed.

Respondents have moved to strike from the record appellant's exceptions to the court's instructions, on the ground that they were neither included in the statement of facts, nor in any way certified by the trial court. A motion is also made to strike the statement of facts and certain affidavits sent up with the record. We think it unnecessary to discuss these motions, since we believe the case must be determined upon the demurrers heretofore mentioned.

It is assigned that the court erred in over ruling the demurrer to the complaint and in sustaining the demurrer to the affirmative answer, each of which rulings involved the statute of limitations. It will be remembered that the damages sought are alleged to have accrued on the 10th of June, 1900. This action was commenced more than two years thereafter. Unless the acts complained of come within some specific provision of the statute of limitations, the action must be governed by section 289a, Pierce's Code (section 4805, 2 Ballinger's Ann. Codes & St.), which limits the time for commencing the action to a period of two years after the cause of action shall have accrued. Since the cause of action is not based upon a contract in writing, or liability, express or implied, arising out of a written contract, we must therefore refer to section 285, Pierce's Code (section 4800, 2 Ballinger's Ann. Codes & St.), to ascertain if any specific provision of the three-year statute of limitations applies here. The action, not being founded upon contract, or liability arising therefrom, is not governed by subdivision 3 of said section, which provides as follows: 'An action upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument.' The term 'liability,' used in said subdivision, was evidently intended to refer to a contractual liability. Such, in effect, was the decision in Sargent v. Tacoma, 10 Wash. 212, 215, 38 P. 1048. The same statute was so construed by the United States Circuit Court, District of Washington, in Aldrich v. Skinner, 98 F. 375, and also in Aldrich v. McClaine, 98 F. 378. The last-named case was, on appeal to the United States Circuit Court of Appeals, reversed. Aldrich v. McClaine, 106 F. 791, 45 C. C. A. 631. The reversal was, however, upon the ground that the liability involved was a contractual one, the lower court having held otherwise. The appellate court construed the statute itself as did the lower court. For similar construction, see McGaffin v. City of Cohoes, 74 N.Y. 387, 30 Am. Rep. 307, and Thomas v. Union Pacific R. R. Co., 1 Utah, 235.

If any part of the said three-year statute applies here, it must be subdivision 1, which is as follows: 'An action for waste or trespass upon real property.' Respondents urge that the action is for trespass, and is therefore governed by the above-quoted subdivision. It is therefore necessary to determine whether the acts complained of constituted a trespass. The construction of the canal by appellant was for a lawful purpose, and it was, therefore, not an unlawful or wrongful act to permit water to flow through it. The complaint, however, charges negligence in the manner of construction, and in permitting an excessive amount of water to flow through the canal. The manner of construction was not in itself wrongful. Appellant had the lawful right to construct as it chose, and to permit the water to flow through the canal to its full capacity. These things were of no concern to respondents, unless they resulted in some injury to them. Such injury so resulting must necessarily have been...