Trigg v. Timmerman

• Decision Date: 21 April 1916
• Docket Number: 13048.
• Citation: 156 P. 846,90 Wash. 678
• Court: Washington Supreme Court
• Parties: TRIGG v. TIMMERMAN et ux.

156 P. 846

90 Wash. 678

TRIGG v. TIMMERMAN et ux.

No. 13048.

Supreme Court of Washington

April 21, 1916

Department 2. Appeal from Superior Court, Whatcom County; Augustus Brawley, Judge.

Action by George S. Trigg against Charles F. Timmerman and wife. From a judgment for defendants, plaintiff appeals. Affirmed.

F. W Bixby, Nightingale & Son and Bixby & Nightingale, all of Bellingham, for appellant.

Hurlbut & Neal, of Bellingham, for respondents.

PARKER J.

Plaintiff George S. Trigg, seeks to have the defendants, Timmerman and wife, restrained from maintaining upon their land certain drainage ditches from which water flows upon his land. Trial of the case in the superior court for Whatcom county resulted in judgment for the defendants, from which plaintiff has appealed.

For a period of some 20 years or more appellant has owned a farm in Whatcom county consisting of a square 40-acre tract, and also in connection therewith a right of way for road purposes over a strip of land 25 feet wide adjoining his farm on the north. During the same period respondents have owned a farm consisting of two square 40-acre tracts, the easterly one of which lies immediately to the north and across this road from appellant's land. Extending northerly from a short distance north of the south boundary of appellant's land through appellant's and respondents' land and across this road to a short distance beyond the northerly boundary of respondents' land is a swale about 500 feet wide, the ground rising on each side thereof from 6 or 8 feet. This swale in its natural condition consists of wet marshy ground. It slopes slightly to the south and drains naturally into a gully near the south boundary of appellant's land. There is no barrier to the flow of the water to the south in this swale other than as the flow is impeded somewhat by the slight fall of the ground to the south and the somewhat boggy condition of the soil. About 14 years before the commencement of this action in the fall of 1914, appellant, with a view of improving his roadway to the north of his land, cleared and graded it across this swale leaving a ditch on each side thereof. He at the same time constructed a culvert across and under the improved roadway a little east of the center of the line of the swale for the purpose of allowing the water to flow through into an open ditch running from that point south to the head of the gully into which the swale naturally drains, which ditch had theretofore been constructed by appellant. The improvement of this roadway, had the culvert not been constructed therein would have the effect of impeding the flow of the water to the south through the swale somewhat as a dam, though it is possible the water might have found its way through the roadway by seepage without raising to a sufficient height to flow over it. The improvement of the roadway and the construction of the ditch running to the head of the gully enabled appellant to clear and bring into a state of good cultivation about 5 acres of his land lying immediately to the south of the road and for the most part to the west of his ditch. Since the making of these improvements by appellant up until October, 1914, appellant's ditch was of sufficient capacity to carry all of the water flowing through the culvert from the northerly portion of the swale so that the water did not interfere with the farming of his cultivated land. During a period of several years prior to 6 years before October, 1914, respondents at different times constructed and extended four or five drainage ditches upon their land which tended to hasten the flow of the water from the northerly part of the swale to the south and through the culvert into appellant's ditch leading to the gully to the south. In October, 1914, appellant changed his ditch leading from the culvert to the south from an open to a blind or underground ditch by putting in wooden boxing and covering it with earth. This boxing at its north end near the culvert was placed somewhat higher than the bottom of the former open ditch. The entrance to the boxing was also sought to be protected by appellant by the use of wire screens, as he claimed, to prevent the passing into it of leaves and other material which might tend to choke it. The evidence seems to warrant the conclusion that this boxing was of sufficient size to carry all of the water coming from the north of the road, even though the flow may have been somewhat hastened by respondents' ditches beyond what it naturally would be, had that end of the boxing been as low as the appellant's former open ditch and left unobstructed by screens. Soon after this change made by appellant in his ditch to an underground ditch, water overflowed his cultivated land, evidently because of the...