Ulery v. Kitsap County
| Decision Date | 14 December 1936 |
| Docket Number | 26253. |
| Citation | 63 P.2d 352,188 Wash. 519 |
| Court | Washington Supreme Court |
| Parties | ULERY et ux. v. KITSAP COUNTY. |
Department 2.
Appeal from Superior Court, Kitsap County; Hugh C. Todd, Judge.
Action by L. D. Ulery and Lester Ulery, his wife, against Kitsap County, a municipal corporation. From the judgment, the defendant appeals.
Affirmed.
Maurice D. Bresnan, of Bremerton, for appellant.
Hoof & Winston, of Seattle, for respondents.
Motions made by respondents in their brief to strike certain parts of the brief of appellant are without merit and are denied.
Respondents are the owners of a farm of 62 acres on what is known as lateral highway No. 2 in Kitsap county and have been in continuous possession since 1928. Twenty acres are on the easterly side and approximately 40 acres are on the westerly side of the highway, the farm being the lowest land in a narrow valley.
The original graveled road was constructed in 1914 with a 30-foot right of way and a width of about 14 feet across respondents' land, which ran on a fill about 2 1/2 feet above the surface of the ground. The only ditches along this old road were on respondents' property and they extended to the south, only, about 50 feet beyond their property. At a point about the center, a wooden culvert ran across the road draining the water from the easterly portion of respondents' property to the westerly part, which is the only drainage for the easterly portion, and thence in an open ditch for about 100 feet, where it entered a 10-inch tile drainage system, running in a general southwesterly direction across this and other land for a distance of 2,800 feet, at the end of which the water came to the surface and followed a natural gulley. Prior to the construction of lateral highway No. 2, during the rainy season, water from the surrounding country arrived there only by natural seepage and tended to remain in hummocks along the roadside. Very little, if any water reached this land other than that which actually fell or came from two springs flowing only during wet weather, which did not remain any length of time and was carried off through the drainage system in time to raise good crops and keep the soil sweet. At no time, while respondents owned the property, did water cover the old road which had only a 2 1/2 foot fill. During the early history the tile drainage system was closed once or twice for a short time, but for years it had functioned at all times.
In 1930, Kitsap county, through its right of way agent, acquired an additional right of way of 30 feet over respondents' land, by deed, thus extending the old right of way to 60 feet. Other land, adjoining respondents' property, was purchased or condemned, through which cuts were made in higher portions of ground, the fill over their property was raised to 7 1/2 feet above the level of the ground, and graveled almost the full width of the highway and constitutes what is now known as lateral highway No. 2, which was finished in October 1932. A concrete culvert 18 inches in diameter replaced the old wooden culvert, the lower easterly lip of which is 1.4 feet above the level of the land causing water below this level to remain on the easterly portion of respondents' land until evaporated. As a part of this new highway, ditches, 36 inches deep, 16 inches on bottom and 36 inches across the top, were constructed on the right of way at the side of the highway. Water from surrounding country which theretofore did not come onto respondents' land, runs into these ditches until they overflow to the north, and thence across other land on to respondents' land to such an extent that in spite of the additional fill, during extremely rainy seasons, it remains on the land until May and to such height that during the years 1933 and 1934, the water was within two or three inches of the top of the new highway and in the year 1935 overflowed that highway about a foot. Also, since the construction of this new highway, fences have floated out during the rainy seasons for the first time and 25 acres of respondents' land have been untillable because of sour soil and the water not receding in time to plant crops. The ditch running from the culvert to the drainage...
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