Thorpe v. City of Spokane

• Decision Date: 13 March 1914
• Citation: 78 Wash. 488,139 P. 221
• Court: Washington Supreme Court
• Parties: THORPE et ux. v. CITY OF SPOKANE.

139 P. 221

78 Wash. 488

THORPE et ux. v. CITY OF SPOKANE.

Supreme Court of Washington

March 13, 1914

Department 1. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by A. L. Thorpe and wife against the City of Spokane. Judgment for defendant, and plaintiffs appeal. Affirmed.

Robertson & Miller, H. J. Hibschman, E. W. Robertson, and Thos. J Corkery, all of Spokane, for appellants.

H. M Stephens and Wm. E. Richardson, both of Spokane, for respondent.

MOUNT J.

The plaintiffs brought this action against the city of Spokane to recover damages alleged to have been caused by the city so negligently grading its streets as to cause the plaintiffs' premises to be flooded. The city denied that it had negligently caused the water to be cast upon the plaintiffs' premises. Upon this issue the cause was tried to the court and a jury. At the close of all the evidence, the court directed a judgment to be entered in favor of the defendant. The plaintiffs have appealed.

It appears that in the year 1910 the city of Spokane graded certain streets in Union Park addition to that city. There extended across this addition an old dry channel, in which, at some time, water had flowed. These streets were graded upon the initial grade. When the work was done, this old channel, at the point where it intersected the streets, was filled up. Afterwards, and before the injury to the plaintiffs' property, the city had constructed culverts across and along the streets where the old channel had been. Private property owners along the streets had filled in their lots so that the old channel was completely filled up upon some of the lots; and the culverts placed in the streets by the city, therefore, were of no use, so far as carrying off the water was concerned.

It is contended by the appellants that this old channel is a water course, and that the city was liable upon an initial grade for obstructing this water course. Much evidence is quoted in the appellants' brief to show that the old channel was a natural water course. We think it is conclusively shown by the evidence that water never flowed in this old channel, except when the ground was frozen and snows melted in the late winter or early spring. Upon such occasions water would flow down this old channel; but at other times there was no water therein. We are satisfied that this does not make a natural water course, because it is apparent that the water that flowed down this old channel was mere surface drainage over the entire face of the tract of land mentioned, occasioned by unusual freshets and nothing more.

We said in Wood v. Tacoma, 66 Wash. 266, 119 P. 859: 'It is now established law in this state that damages cannot be recovered for consequential injuries to private property occasioned by the original grading of streets and alleys. The dedication of streets and alleys to the public use implies an agreement of the dedicator and his successors in interest that the city may establish grades and improve the streets and alleys thereto in aid of such use. [Citing authorities.] It is also the settled doctrine in this state that surface...