Whiteside v. Benton County

• Decision Date: 07 February 1921
• Docket Number: 15917.
• Parties: WHITESIDE v. BENTON COUNTY.
• Court: Washington Supreme Court

195 P. 519

114 Wash. 463

WHITESIDE v. BENTON COUNTY.

No. 15917.

Supreme Court of Washington

February 7, 1921

Department 1.

Appeal from Superior Court, Benton County; John Truax, Judge.

Action by E. M. Whiteside against Benton County. Judgment for plaintiff, and defendant appeals. Affirmed.

G. W Hamilton, of Prosser, for appellant.

McGregor & Fristoe, of Prosser, for respondent.

BRIDGES J.

The plaintiff was the owner of some lands located in section 5 township 9 north, range 24, east, W. M., in Benton county Wash. A part of these lands were high and of comparatively little farming value; other portions were low and were good for farming purposes. Plaintiff's chief crop was alfalfa. Immediately to the north of the lands owned by him was a county road. At a place a little to the west of plaintiff's lands the road ran through some very low land, or what is designated a 'pothole.' At this point the road had been built up with a view of placing it above such waters as might gather there. In the early fall of 1918 there was an unusual amount of surface water in this locality, and the road where it was built through the law lands was flooded to such an extent that it could not be traveled. In order to relieve the road of this water, the county caused a ditch to be dug from the southerly edge of the 'pothole,' or low lands, through which the road was built, and extended it southerly for a short distance through a natural barrier of rock and soil, so that the water flooding the road was carried off through this ditch and emptied onto some low lands adjoining the plaintiff's lands on the west causing them to be unusually flooded, and, as a result, the plaintiff's lands were also flooded, damaging some hay which had been cut and left on the ground and drowning out and destroying a considerable amount of the alfalfa in the ground. The plaintiff began this suit to recover damages of the county because of what it had done. There was a verdict for the plaintiff in the sum of $425. A demurrer to the complaint on the ground that it did not state a cause of action was overruled, and at the close of plaintiff's testimony defendant moved for a nonsuit, and at the close of all the testimony, moved for a directed verdict, and after the verdict had been received, moved for judgment notwithstanding the verdict, all of which motions the court denied. The defendant had appealed from the judgment entered on the verdict.

The appellant here first contends that it was its duty under the law to maintain this road in a passable condition, and that in draining the water therefrom it was in the performance of a governmental duty, and for that reason it is not liable in damages. In the first place, it may be seriously doubted whether, in doing what it did, the county was engaged in the performance of a strictly governmental duty. Ordinarily, a municipality is engaged in the performance of governmental functions when it is looking after the peace health, and well-being of the citizens of the state, and it is not in the performance of such governmental functions when it is building or repairing roads or streets. In the case of Sutton v. City of Snohomish, 11 Wash. 24, 39 P. 273, 'In the first place, we are of the opinion that the laying out, repairing, and controlling of streets by a chartered municipal corporation does not call forth the exercise of strictly governmental functions. In the performance of such duties, however imposed, the municipality acts primarily for the benefit of the inhabitants of the particular locality. In preserving the peace, caring for the poor, preventing the destruction of property by fire, and preserving the public health, it assumes duties which are said to be in their nature solely governmental (Jones on Negligence of Municipal Corporations, ch. 4), and for the nonexercise, or negligent exercise, of which the corporation is not generally liable to individual citizens. But the duty to keep the streets in repair is a municipal or ministerial duty, for a breach of which an action will lie in favor of a party injured thereby.'

However in this case it is probably immaterial whether in doing what it did the appellant was or was not engaged in the performance of strictly governmental functions. Under the decisions of this court, it would be liable in a proper case in any event. We have consistently held that a strictly municipal corporation, such as a city, is not liable in damages brought about while it is engaged in the performance of strictly governmental functions. But we have refused to apply this rule to counties and school districts. The result is that it is the settled law in...