Thomsen v. State
| Decision Date | 29 December 1966 |
| Docket Number | No. 38575,38575 |
| Citation | 70 Wn.2d 92,422 P.2d 824 |
| Court | Washington Supreme Court |
| Parties | Charles M. THOMSEN and EL Vera Thomsen, his wife, Respondents, v. The STATE of Washington, Osberg Construction Company, a corporation, J. A. Jones Construction Company, a corporation, Defendants, King County, Appellant. |
Charles O. Carroll, Pros. Atty., James E. Kennedy, William L. Paul, Jr., Deputy Pros. Attys., Seattle, for appellant.
Broz, Long, Mikkelborg, Wells & Fryer, Jeremiah M. Long, Douglas M. Fryer, Lucas A. Power, Seattle, for respondents.
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This is a case where the owners of a blueberry farm and cannery gave a public agency an easement to use a 20-foot strip of land adjacent to a river bank for river improvement and flood control purposes and later found themselves virtually out of business. Understandably they want to be reimbursed for their loss.
For clarity, a sketch of the property involved is shown.
The respondents purchased areas one, two, three, and four in 1922 from Cowley Investment Company, have been in possession at all times since, and from 1934 on have used the land for growing blueberries in commercial quantities. Area one includes the Sammamish River. Area four south and west of the curved dotted line is upland. The remainder of area four and all of areas two and three are second class shorelands created when the level of Lake Washington was lowered some 50 years ago. Area three was surveyed out at one time as the Sammamish Waterway, but the waterway has never been dug.
Prior to conveying the above-described lands to the respondents, Cowley Investment Company had purchased from the state of Washington all the shorelands in front of and adjacent to government lots three and four. The extent of the grant in the deed from the state to Cowley has been in dispute, and in the past both the respondents and the state of Washington have claimed title to areas one, two, and three. Respondents' ownership of the upland in area four is not denied.
Prior to July 1962, King County and the United States Corps of Engineers entered into a joint project for the improvement of the Sammamish River from its confluence with Lake Washington to its source in Lake Sammamish. The county was to provide title to the right of way and the crops of engineers was to contract for the actual work of widening, deepening, and diking the river.
The right of way for the project was surveyed to a width of 182 feet, being a strip 91 feet on either side of the center line of the river. King County then solicited from the numerous abutting owners river protection easements to the land included within the survey, and where these were granted the county also solicited releases and waivers of damages which permitted the cutting, filling, and flooding of the areas described in the easements. Where easements were not granted, the county condemned rights of way. In addition, the county acquired from the state of Washington a disclaimer of interest in damages 'to the bed and shores' of the river.
On July 20, 1962, the respondents granted to King County a river protection easement which specifically covered an area 182 feet in width, 91 feet on each side of the center line of the Sammamish River. Measured on the ground, this easement permitted an encroachment upon respondents' lands to a distance 20 feet back from the south bank of the river. The respondents knew that they would have to move their blueberry bushes from this 20-foot strip if they wanted to save them. On the same day the respondents signed the release and waiver of damages document in the form solicited by the county for a recited consideration of $1 although no money was actually paid.
Some time later those in charge of the river improvement project designated areas two and three as disposal areas, and the land in areas one, two, and three was then flooded with river mud and debris to a depth of several feet, completely destroying blueberry production on 6.36 acres in areas two and three. This fill in areas two and three had a diking effect on the low part of area four, so there is some doubt whether the blueberry bushes in area four will survive. In addition, the respondents find themselves with a cannery located in area four which is now vastly 'overbuilt' for what blueberry production they have left. The record is not entirely clear, but apparently someone had concluded that the ownership of areas one, two, and three was in the state of Washington, not in the respondents, and apparently further, that the state's disclaimer of interest in damages 'to the bed and shores' of the Sammamish River, mentioned earlier, would be sufficient to protect the county against any liability for damaging areas two and three.
Respondents sued in count 1 to quiet title in themselves to areas one, two, and three against any claim of interest by the state of Washington and by King County, and in count 2 for damages against King County.
During the progress of the trial the state confessed judgment and consented to the entry of a decree quieting title to the disputed areas in the respondents. This decree was entered June 28, 1965. The effect of this decree was to establish ownership in the respondents, as against any claims of the state, back to 1922. The decree did not, and could not, foreclose any interest of King County, which was a party defendant and had not consented to its entry.
The trial court granted judgment in favor of the respondents and against King County for money damages for unlawful and unconstitutional damaging of private property. The county's appeal is limited solely to the issue of liability.
While the county does not attack the amount of the judgment, it may be helpful to an understanding of this opinion to analyze the trial court's award: No damages in area one and none were claimed; destruction of blueberry production in areas two and three, $9,570 at $1,500 per acre; no damages to blueberry bushes in area four; diminution in cannery value on area four, $14,500; loss of crop in 1963, $2,300; loss of crop in 1964, $8,200. It may be noted that the trial court was of the opinion that the damage to the blueberry farm was actually greater but was offset in part by the fact that the highest and best use of the land had, by reason of the fill, changed from blueberry farming to a higher and better use, residential development.
It is clear from the record that King County relied on the state of Washington to establish superior title to the areas in dispute. When the state stipulated to entry of a decree quieting title...
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