Tope v. King County

• Decision Date: 23 March 1937
• Docket Number: 26260.
• Citation: 65 P.2d 1283,189 Wash. 463
• Parties: TOPE et al. v. KING COUNTY.
• Court: Washington Supreme Court

65 P.2d 1283

189 Wash. 463

TOPE et al. v. KING COUNTY.

No. 26260.

Supreme Court of Washington, En Banc.

March 23, 1937

Appeal from Superior Court, King County; James T. Lamler, Judge.

Action by A. Tope and another against King County, a municipal corporation. From a judgment dismissing the action, the plaintiffs appeal.

Reversed with direction.

Hare Turner & Maurier, of Seattle, for appellants.

Warren G. Magnuson and Charles C. Ralls, both of Seattle, for respondent.

STEINERT Chief Justice.

Appellants as plaintiffs, brought this action to recover damages to real property caused by the invasion of surface waters, and to obtain an injunction against the future diversion of such waters to the injury of their property. Trial Before the court without a jury resulted in a judgment dismissing the action, following which this appeal was taken.

Appellants, husband and wife, are contract purchasers of a tract of land in King County, described as the south 300 feet of the north 602.64 feet of government lot 1, Sec. 32, Tp. 22 N., R. 4 E., W. M., located about 20 miles south of Seattle and 1 mile from Redondo beach. The land has a frontage of 300 feet on Puget Sound and extends back eastwardly about 1200 feet to a county road, described and known as the W. A. Hall road, which runs in a northeasterly and southwesterly direction.

For a short distance west of the Hall road, appellants' land has a gentle slope toward Puget Sound, then breaks somewhat steeply forming a hillside which ends about midway in the length of appellants' land; at the foot of the hill, the ground levels off onto a bench which extends westwardly to a low bluff overlooking the beach.

Along the northerly portion of appellants' land, and running parallel with, and about 30 feet from, their north line, there was, prior to the circumstances hereinafter related, the vestige of an old abandoned skidway, or logging road, which formed a depression of 2 or 3 feet in the ground, and in the bed of which ran a small stream fed by springs in the rear of the property and emptying through a small trough onto the beach bordering the Sound.

Upon appellants' property are three ditches. One comes from the adjacent land on the north and formerly connected with the little stream flowing along the bed of the old skidway. The second runs south of the stream, but does not connect with it; its waters, which are small in amount, are diffused upon the ground in the immediate vicinity. The third ditch diverts the surface waters from the hill in the rear and conducts them southwestwardly, away from the direction of the little stream, to the Sound.

Appellants' land is improved with a two-story frame house and a garage, located on the level area and near the bluff; it also has upon it a natural grove of alder, maple, and fir trees. Appellants occupy the premises during the summer and on week ends, and, during their occupancy since 1924, have cleared out some of the stumps, done some landscaping, and put in plants and shrubs.

On the land lying to the north of, and opposite, the middle portion of appellants' property is a large swamp or basin, about 150 feet wide from east to west and approximately 700 feet long from north to south, the southerly end of which is approximately 100 or 150 feet from appellants' north line, and the northerly end of which lies in section 29, which is immediately north of section 32. This basin, which is bounded on the east and west by ranges of hills, has no natural inlet or outlet. At its southern extremity, there is an artificial ditch or channel which extends to, and connects with, the depression made by the skidway on appellants' land.

East of the Hall road and comprising from 40 to 100 acres lying in the northeast quarter of section 32 is an area of unimproved land, referred to in the record as the Betts area. Along the east line of section 32, which is also the eastern boundary of the Betts area, runs the Seattle-Tacoma Highline road. Along the north line of section 32, which is also the northern boundary of the Betts area, runs another county road, known as the W. J. Betts road, which extends from the Seattle-Tacoma Highline road on the east to the Hall road on the west.

The greater part of the Betts area is flat and swampy and contains many earth pockets. This area drains to the north in the direction of the Betts road. Within the Betts area and approximately 150 feet east of the Hall road is a natural ridge of ground running north and south the full width of appellants' land and extending north of, and beyond, the Betts road. This ridge, acting as a barrier, has the effect of turning the drainage of the Betts area away from appellants' land. Beyond, or north of, the Betts road, the land slopes to the north and west, so that the natural drainage of the area on both sides of the Betts road is ultimately in those directions toward Puget Sound and beyond the north end of the basin or swamp, previously mentioned, and considerably north of appellants' property. The outlet of the waters from this area into Puget Sound is through Woodmont Beach Canyon, which, also, lies considerably north of appellants' land.

The Betts road was built in 1930, and, at the time of its construction, the county put a ditch along its south side up to about the point where the natural ridge crosses the road, and also installed an 8-inch culvert about half way between the Hall road and the Seattle-Tacoma Highline road for the purpose of allowing the surface waters from the Betts area to drain to the north in their natural way. To connect with the Hall road, the Betts road cuts through the natural ridge which runs parallel to appellants' property.

Some time after the Betts road had been constructed, and prior to 1933, the county extended the ditch running along its south side to the western terminus of the road and placed an 8-inch culvert underneath the Hall road at its juncture with the Betts road, which point is about 290 feet north of the north line of appellants' property. Through this culvert, a small amount of water was able to flow westwardly from the Betts area underneath and across the Hall road and, after diffusing itself over the ground, become absorbed within a short distance from the outlet of the culvert. Prior to January, 1935, however, practically all of the surface waters which drained from the Betts area flowed northwardly through the 8-inch culvert underneath the Betts road, without any damage whatever to appellants.

On Sunday, January 20, 1935, appellants, who resided in Seattle during the winter months, visited their country place, which is the property involved here. There were then 6 or 8 inches of snow on the ground, but no damage to their property had occurred. Their next visit to the property was on the following Sunday, January 27, 1935. In the meantime, on January 21, there had been a sudden thaw, accompanied by a heavy rain.

When appellants visited their property on January 27, they found that water from some source had washed a large gully along the course of the old skid road situated on their land. The washout thus made was approximately 235 feet long, 35 feet wide, and from 10 to 20 feet deep. A number of trees had been uprooted and had fallen into the gully. Three or four thousand yards of earch had been washed out onto the beach, forming a kind of peninsula covering an area of about 250 by 100 feet. A computation of the earth deposited on the beach disclosed that it exceeded the amount that came from the gully itself, indicating that a part of the earth had been carried from a point further up. The little stream which formerly ran along the depression formed by the old skid road had been enlarged many times, and water was then freely flowing therein.

The appellant husband, accompanied by a witness, traced the source of the water and found that, at the junction of the Hall and Betts roads, an 18-inch culvert had been recently installed, permitting the water to flow in large volume from the ditch paralleling the Betts road toward and underneath the Hall road. It appears that the new culvert had been installed by the county on or about January 20, 1935, for the express purpose of carrying underneath and across the Hall road the surface waters which normally and naturally drained from the Betts area northwardly into the ditch running alongside the Betts road. The waters emptying through the 18-inch culvert formed a distinct channel for a short distance and then faded out as they spread and became diffused upon a terrain covered by underbrush and honeycombed with mountain-beaver holes. On account of the slope of the ground in that vicinity, the water naturally drained into the basin or swamp above mentioned, the deepest part of which was at its southern extremity lying near appellants' land. Any increase of water in the basin naturally found its outlet through the artificial ditch leading therefrom toward the old skid road running through the land of appellants. At the time that the appellant husband and the accompanying witness made their inspection, the water was pouring through the 18-inch culvert, while none was flowing through the 8-inch culvert midway in the Betts road.

It appears that, in December, 1933, which was after the Betts road had been built, but Before the 18-inch culvert had been installed, a slide had occurred on the property north of appellants' land and, in consequence thereof, the owner of that land had moved his house further back to the east. At the time that this slide occurred, there had been an unusually heavy rainfall, and, as a result, there had been a small slide of earth on appellants' land, near the mouth of the little stream coursing along the old skid road. A few trees had toppled over, but...