Wilbour v. Gallagher, 39444

• Court: United States State Supreme Court of Washington
• Writing for the Court: HILL; NEILL; HUNTER, C.J., and DONWORTH
• Citation: 77 Wn.2d 306,462 P.2d 232
• Parties: , 40 A.L.R.3d 760 Charles S. WILBOUR and Harriet G. Wilbour, his wife, and Chester L. Green and Ruby Green, his wife, on behalf of themselves and all other residents and property owners in the Town of Chelan, State of Washington, and all other members of the general public similarly situated, Respondents and Cross-Appellants, v. Norman G. GALLAGHER and Ruth I. Gallagher, husband and wife, Appellants.
• Docket Number: No. 39444,39444
• Decision Date: 04 December 1969

Page 306

77 Wn.2d 306 462 P.2d 232, 40 A.L.R.3d 760 Charles S. WILBOUR and Harriet G. Wilbour, his wife, and
Chester L. Green and Ruby Green, his wife, on behalf of
themselves and all other residents and property owners in
the Town of Chelan, State of Washington, and all other
members of the general public similarly situated,
Respondents and Cross-Appellants,
v.
Norman G. GALLAGHER and Ruth I. Gallagher, husband and wife,
Appellants. No. 39444. Supreme Court of Washington, En Banc. Dec. 4, 1969.

[462 P.2d 233] Ned W. Kimball, Waterville, for appellants.

Charles W. Cone, Engst, Phelps & Young, Wenatchee, for respondents.

HILL, Judge.

We are here concerned with the uses to which privately owned land can be put, which for 'thirty-five years' ¹ has been submerged each year by waters of a navigable

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lake. The submergence at its maximum depth (3 to 15 feet) ² was for approximately 3 months, June 15 to September 15 each year.

The circumstances and history which furnished the background for the presentation of this unusual problem must be explained in some detail.

Lake Chelan is a glacial gorge in Chelan County, approximately 55 miles in length, and with a width, generally speaking, of from 1 to 2 miles. Its navigability is conceded. ³ Prior to 1927, it lay in its natural state with the level of its waters at 1,079 feet above sea level. By 1891 the land involved in this action had passed into private ownership being included in the 'Plat of the Town of Lake Park.' ⁴ The platter dedicated and quitclaimed all streets and alleys therein to the use of the public forever. All of the platted property subsequently became a part of the town of Lakeside, and is now a part of the town of Chelan. The date of incorporation of Lakeside does not appeal from the record, but on May 2, 1927, by ordinance No. 24, the town vacated certain specifically described streets and alleys. ⁵

[462 P.2d 234] On the same day, the Chelan Electric Company and the Lake Chelan Box Factory, both Washington corporations, as parties of the first part (and apparently the owners of all of the property contiguous to the vacated streets and alleys and who acquired title thereto by virtue of the vacation) executed an instrument (duly recorded) which contained the following recitals and grant:

THAT WHEREAS, the Town of Lakeside did by Ordinance

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passed May 2nd, 1927, and numbered 24, vacate those portions of the streets and alleys hereinafter named, in the Town of Lakeside; and,

WHEREAS, the Chelan Electric Company, as a part of its power project, intends to impound the waters of Lake Chelan, and to raise the same to the elevation of 1100 feet, still water measurement, above mean sea level, and to inundate and overflow to said elevation, those portions of the streets and alleys described in said ordinance; and

WHEREAS, the Town of Lakeside, party of the second part, desires, for itself and the public, to have the right of access over the lands and premises included within the boundaries of the portions of said streets and alleys described in said Ordinance, to Lake Chelan, at all stages of water, but not, however, to interfere with the impounding or storage of said waters as stated above, or the flow thereof.

NOW, THEREFORE, the parties of the first part, in consideration of One Dollar ($1.00) and other valuable consideration to them in hand paid by the party of the second part, receipt of which is hereby acknowledged, do Convey and quit claim unto the part of the second part, in perpetuity, the right of access, for itself and the public, over the lands included within the boundaries of those portions of the vacated streets and alleys hereinafter described, to Lake Chelan, at all stages of water, not however, interfering with the right of the first party, Chelan Electric Company, its successors and assigns, to impound the waters of Lake Chelan and To raise the same to the elevation of 1100 feet, still water measurement above mean sea level, and to inundate and overflow to the said elevation, those portions of the vacated streets and alleys hereinafter described, or the impounding or storage of the waters of Lake Chelan as stated above, or the flow thereof; those portions of the said vacated streets and alleys, being more particularly described as follows, to-wit:

(Emphasis ours.) Then followed a listing of exactly the same streets and alleys which had been included in the vacation ordinance.

It should be noted that the public is the beneficiary of the grant in perpetuity of '* * * the right of access * * * over the lands included within the boundaries of

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those portions of the vacated streets and alleys hereinafter described, to Lake Chelan, at all stages of water * * *'

The Chelan Electric Company ⁶ constructed a dam, pursuant to a permit by the Federal Power Commission, which permitted the annual raising of the level of the lake to 1,100 feet above sea level, with the requirement that it reach that level by June 15 each year. Thereafter in May of each year the dam was closed and the waters gradually rose to the 1,100 foot level, presumably by June 15th. They are maintained at that level until September when the dam was opened and the waters gradually subsided to the natural 1,079 foot level. ⁷

We come now to a consideration of the right claimed by the defendants, Norman [462 P.2d 235] G. Gallagher and Ruth I. Gallagher, his wife, to fill their land below the 1,100 foot level to a height 5 feet above that level, and thus prevent its being submerged and making it available for use at all times. (Certain fills have now been completed.)

The claimed right is challenged by the plaintiffs (Charles S. Wilbour and Harriet G. Wilbour, his wife; and Chester L. Green and Ruby Green, his wife) who brought a class action on behalf of themselves and the public asking that the fills be removed, and asking for damages to their own properties caused by the fills.

To assist in an understanding of the situation, we have prepared this drawing. It [462 P.2d 236] is not drawn to scale, neither is it an exhibit in the case and it has been prepared for illustrative purposes only. It is based primarily on exhibit 5, a large drawing by Mr. Gallagher showing the fills he has made. It shows also the approximate water line of Lake Chelan at both the 1,079

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and 1,100 foot levels. The lots, blocks, streets and alleys are as shown in the plat of Lake Park, and State Highway 97 has been superimposed. Unfortunately, the block numbers, other than 2 and 3, were omitted, and they will be supplied in our narrative explanation of the drawing.

462 P.2d 235

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

[462 P.2d 236]

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The shaded area has been divided into 4 lettered segments. G and W are the properties owned by the plaintiffs (the Greens and the Wilbours), improved with their respective homes, and lying partially above and below the 1,100 foot level ⁸ (all of block 4, plat of Lake Park). A and B represent the two fills made by the defendants (the Gallaghers), both fills have access to Highway 97, and are now being used as trailer courts. ⁹ A includes block 3, plat of Lake Park (except lots 1 and 2), including the alley in that block extending from vacated Wharf Street to vacated Main Street; a portion of block 6, plat of Lake Park, between the highway and vacated Main Street; also portions of vacated Main and Cross ¹⁰ Streets. B includes a part of block 4, plat of Lake Park between the highway and vacated Cross Street; lots 18 to 22 inclusive, block 2, plat of Lake Park; and the portion of vacated Cross Street lying between the indicated portions of blocks 4 and 2. A portion of the intersection of vacated Cross and Wharf Streets also has been blockaded by a construction of the defendants, not shown on the drawing.

The trial court found that for 35 years prior to the trial (July and September 1965) and except for the filling by the defendants, commenced in 1961, the waters of Lake Chelan

covered the lands of Defendants in Blocks 2 and 3, Lake Park, including the streets and alleys in and adjacent to said Blocks 2 and 3 for a period each year from late spring through September, to a depth of three feet to fifteen feet.

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And that for the same period

the general public, including Plaintiffs and their respective predecessors in interest, have used the waters covering the portions of Blocks 2 and 3, Plat of Lake Park, now owned by the Defendants, as well as the water covering portions of the streets and alleys adjacent thereto, for fishing, boating, swimming and for general recreational use and that said use was open adverse, notorious and uninterrupted for said period, during the period of each year when water covers the said portions of Block 2 and 3 and the adjacent streets and alleys.

The trial court ultimately concluded (based upon estoppel) that the defendants should not be compelled to remove their fills, but awarded the plaintiffs damages, finding that the value of the Wilbour property had been lessened $8,500, and the value of the Green property had been lessened $11,000 by reason of the fills established by the defendants.

The trial court provided in its judgment:

That in the event the remedy of abatement should be determined to apply upon any appeal in this cause, then each Plaintiff should have and recover judgment[462 P.2d 237] against Defendants in the sum of $1,800.00 per year from July 1, 1964, to the date of completion of abatement of said fill in its entirety.

This lessening of value was predicated principally on the loss of view, but also on inability to use the water over the filled land for navigation, fishing, swimming, boating and general recreational uses; and because, in consequence of the defendants' fill, 'algae has become an increasing problem, which has created an unsightly situation on Plaintiffs' beaches.'

From this judgment the defendants appealed, urging that they were...