Wendel v. Spokane County

• Decision Date: 03 January 1902
• Citation: 27 Wash. 121,67 P. 576
• Court: Washington Supreme Court
• Parties: WENDEL et al. v. SPOKANE COUNTY.

67 P. 576

27 Wash. 121

WENDEL et al. v. SPOKANE COUNTY.

Supreme Court of Washington

January 3, 1902

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Action by Frank Wendel and others against Spokane county. From a judgment for defendant, plaintiffs appeal. Reversed.

Shine &amp Winfree, for appellants.

Horace Kimball and James Z. Moore, for respondent.

DUNBAR J.

This is an action for damages caused by draining the waters of a lake in Spokane county onto the lands of the plaintiffs, done by order of the board of county commissioners in constructing a road across said lake. The complaint alleges, in substance that plaintiff Frank Wendel had entered the lands as a homestead under the homestead laws of the United States, and that he and his wife have ever since lived on said lands and cultivated them under the said homestead laws, but have not yet made final proof; that the board of county commissioners of Spokane county ordered a county road to be surveyed, laid out, established, and built, a portion of the road running through Turnbull Lake; that they took a portion of the bed of said lake for the purpose of building the road, disregarded the surveyor's recommendation that a bridge be built over said lake, and ordered a canal or ditch to be cut out of said lake between the said roadbed and the plaintiffs' land; that the ditch was for the purpose of draining a portion of the said lake so that the road might be built thereon; that the said canal or ditch was constructed and finished by defendant, and was cut through a natural ridge of land which had theretofore protected plaintiffs' land from the overflow of said lake; that it was cut in order to give an outlet for the water on said roadbed for the purpose of avoiding the necessity of maintaining a bridge; that the road was laid out, established, built, and constructed by Spokane county, and is now being used by said county as a county road, and that the said waters of said roadbed have been since said date, and are now being, drained through said ditch; alleging the damages arising from the emptying of the waters upon plaintiffs' land. A demurrer was interposed to this complaint on the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was sustained, and, the plaintiffs electing to stand upon their complaint, judgment was entered dismissing the action, from which judgment this appeal is taken.

It is claimed by the respondent that there was not sufficient allegation of ownership in the land to maintain this action. We think, however, that the allegations set forth in the complaint above noted were sufficient. Yakima Co. v. Tullar, 3 Wash. T. 393, 17 P. 885; Pierce v. Frace, 2 Wash. 81, 26 P. 192, 807; 2 Am. & Eng. Enc. Law, p. 42, and cases cited.

The main contention, however, is that the act complained of was beyond the legal power of the county, and therefore ultra vires; or, reduced to logical statement, that the county had no right to commit the act which caused the damage, and is therefore not responsible. A great many of the cases cited by respondent are to the effect that the county cannot do an unlawful act, and that, if such act is done by an officer of a municipal corporation, the corporation is not liable in any event. These cases are not in point in this state, where the opposite doctrine has been uniformly held. Kirtley v Spokane Co., 20 Wash. 111, 54 P. 936; Einseidler v. Whitman Co., 22 Wash. 388, 60 P. 1122; Commercial Electric Light & Power Co. v. City of Tacoma, 20 Wash. 288, 55 P. 219, 72 Am. St. Rep. 103. In discussing the liability of municipal corporations for acts committed by their officers which are defended on the ground of the same being ultra vires, we must not lose sight of the distinction which exists between acts which are absolutely ultra vires by reason of the corporation having no authority to act on the subject-matter--it being wholly beyond the scope of its powers--and those acts which in a sense are termed ultra vires, where the body has jurisdiction of the subject-matter, but, in the execution of its authority, trespasses upon the rights of others. In the first instance it is conceded by all authority that the corporation is not liable, and in the second, by almost universal modern authority, that it is; that the wrongful act may be the foundation of an action for damages against the corporation, and that such action will lie against the corporation either when the act is done by its officers under its...