Tierney v. Yakima County

• Decision Date: 16 November 1925
• Docket Number: 19108.
• Citation: 136 Wash. 481,239 P. 248
• Court: Washington Supreme Court
• Parties: TIERNEY et ux. v. YAKIMA County.

239 P. 248

136 Wash. 481

TIERNEY et ux. v. YAKIMA County.

No. 19108.

Supreme Court of Washington, En Banc.

November 16, 1925

Appeal from Superior Court, Yakima County; Nicheson, Judge.

Action by T.J. Tierney and wife against Yakima County. From a judgment for defendant, plaintiffs appeal. Reversed, with directions to set aside judgment and grant new trial.

Fullerton and Holcomb, JJ., dissenting.

Geo. F McAulay, of Yakima, for appellants.

Sydney Livesey and G.E. Clark, both of Yakima, and W.B. Birdgman, of Sunnyside, for respondent.

MITCHELL J.

This action was brought by T.J. Tierney and wife against Yakima county to recover damages alleged to have been caused by the obstruction of the flow of water in one of the channels of Yakima river, together with other changes in and about the channels of the stream, which, acting together, caused an undue amount of water to flow through one of the channels on which plaintiffs' property is situated, overflow its banks, and greatly damage their lands. Upon the trial of the case to a jury a nonsuit was granted at the close of the evidence on the part of the plaintiffs. They have appealed from a judgment dismissing the action.

At the place in question the Yakima river runs in a southeasterly direction, and is divided generally into what is called the north and south channels. North of these two channels is what is called Beaver slough. The slough runs southeasterly, and is fed by a small stream and seepage from the lands north of the river, and by a course from the so-called north channel of the river. It was the obstruction of the mouth or intake of this course by the county in 1922, together with other changes and so-called improvements made in connection therewith, which, it is alleged, caused the damages complained of. The county maintains a highway running northerly with a bridge across each the south and north channels of the river and one over Beaver slough. Up the river, near the highway and bridges, the river is divided into numerous channels which cause a number of small islands. In 1922 the county built and since has maintained a dam at the intake of the water course leading from the north channel to Beaver slough, at a point several hundred feet above the bridge, which prevented any river water flowing through the slough. It was the answer and contention of the county that the course obstructed was of recent origin, occurring in 1921, and that it was obstructed to prevent the waters of the river from going that way, creating a new channel, and threatening the destruction of the bridge over Beaver slough: that is, that the course obstructed was a high or flood water channel only, that carried nothing other than outlaw water; the danger of which to the county's property the county had the right to provide against. On the other hand, the claim of the appellants, supported by testimony, was that the course obstructed was one of the channels of the river, and that the county could not obstruct it in such way as to damage their lands below by the increased overflow of the river. From the testimony introduced a jury could readily find that the overflow which occurred upon the lands of the appellants was so much greater than that theretofore occurring at such usual seasonal freshest that it damaged the property of the appellants more than $3,000; that the course obstructed was of long standing, had a bed and banks, a current running through it; that it was one of the channels of the river, and was the only way by which water could reach Bever slough from the north channel of the river.

One of the witnesses, familiar with the land, and who had lived nearby for 20 years, testified as follows:

"Q. In normal times how much of the water did Beaver slough carry? A. Not over 25 per cent. till it began flooding the surrounding land.

"Q. At

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