Wood v. City of Tacoma

• Decision Date: 16 December 1911
• Citation: 66 Wash. 266,119 P. 859
• Court: Washington Supreme Court
• Parties: WOOD v. CITY OF TACOMA.

119 P. 859

66 Wash. 266

WOOD v. CITY OF TACOMA.

Supreme Court of Washington

December 16, 1911

Department 2. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Action by Victoria A. Wood against the City of Tacoma. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Govnor Teats, Hugo Metzler, Leo Teats, and Ralph Teats, for appellant.

T. L Stiles, F. R. Baker, and F. M. Carnahan, for respondent.

ELLIS, J.

This is an appeal from a judgment of nonsuit and dismissal of an action to recover damages consequent upon the grading of and construction of storm sewers in certain streets in the city of Tacoma.

About three years before any of the streets in the vicinity of her property had been graded, the appellant bought lots 5 to 10 inclusive, in block 4 of Elsmere addition to Tacoma. Block 4 fronts to the south on Sixtieth street and is bounded on the east by J street, on the west by K street, and on the north by the alley between blocks 3 and 4. We reproduce a plat from respondent's brief, the correctness of which seems not to be questioned, merely for the purpose of illustration and to show the location of streets in relation to the appellant's lots:

(Image Omitted)

Elsmere addition is in an outlying part of the city. Some houses had been built there and in that neighborhood apparently before any of the street were graded or any drainage provided. The general slope of the land in that vicinity is from the south and east to the north and west. Appellant's lots occupy low ground across which originally the natural drainage of the country to the south and east for a considerable distance flowed. Originally this surface water ran off of appellant's lots and across block 3 to the northwest. At the time when the city began the grading here in question improvements and filling by the owners of block 3 had obstructed the natural course of the water so that it ran in a small ditch, it does not appear by whom dug, along the alley to K street and thence north. There was also a ditch on the southerly side of Sixtieth street which carried a part of the surface water to K street. This was apparently dug after the appellant had purchased and built on her lots, and also after that time the city dug a ditch northward along K street to carry all this surface water to a large drain on Fifty-Eighth street. It appears that these ditches and also other ditches and drains on this sloping territory, the location and character of which are not made clear by the evidence, had been made some of them by the city and others by the owners of different properties. It seems to be admitted that no permanent system of drainage had been constructed or adopted by the city in this territory when appellant purchased her lots and built her house, nor up to the time of the grading complained of in this action. Up to that time the drainage, such as it was, was merely temporary in character and constructed and adapted to the natural surface of the ground.

In the fall of 1909 the city by contract began the grading of the streets and alleys in the vicinity of appellant's property. The work apparently included all of these streets excepting South Sixtieth street. This grading was the initial improvement of these streets, the first change from the natural contour of the ground. Just before the heavy rains of November, the grading of K street had been completed, and between Sixtieth and Fifty-Ninth streets it had been necessary to raise the level of the street and sidewalks a little above the natural surface. At the same time and as a part of the same work the alley between blocks 3 and 4 was correspondingly raised. There was therefore a fill variously estimated at from a foot to two feet in the alley in the rear of appellant's lots. This grading of the street and alley filed the ditch in the alley and stopped up the K street end of the ditch on Sixtieth street. At the same time the city was constructing a storm sewer from Sixty-Fourth street north along J street to Sixtieth street and along Sixtieth to K street. The heavy rains stopped the work before it reached K street. It does not appear that this sewer was fully completed from Sixty-Fourth street down to Sixtieth street; but it does appear that the pipes were laid at Sixtieth and J streets, and that there was a manhole at Sixty-First street and another at Sixtieth street.

In the grading of Sixty-First street there was a slight cut between K and J streets, and the surplus dirt was used in filling the lots in the vacant block 6 abutting on the north side of Sixty-First street. This whole block was filled to about 18 inches above the street. When the heavy rains of November came, the water, following its usual course, from the higher ground from the south and east, being arrested by this filling of block 6, collected in Sixty-First street and vicinity forming a pond. A part of the filling on the lots near J street washed away, and some of the water which had collected in Sixty-First street flowed into the unfinished storm sewer and out again through the manhole at Sixtieth and J streets, thence down Sixtieth street onto appellant's lots, and was there retained by the filled grade of K street and of the alley in the rear of her lots causing the injury complained of. It is fairly deducible from the whole of the evidence that little, if any, more water was thus collected upon appellant's lots than would have been the case had no water been allowed to collect in Sixty-First street and had no storm sewer been constructed in J street. The water which came from Sixty-First street would simply have collected in the first instance in Sixtieth street and upon the appellant's lots. It was merely delayed in its progress by the filling in block 6 and reached appellant's lots possibly a little later than otherwise by going around the block instead of crossing it diagonally. But even if there was an increase in the amount of water, it has been held not to create a liability unless the water be cast in a concentrated and destructive body upon the land. Davis v. City of Crawfordsville, 119 Ind. 1, 21 N.E. 449, 12 Am. St. Rep. 361; Jordan v. City of Benwood, 42 W.Va. 312, 26 S.E. 266, 36 L. R. A. 519, 57 Am. St. Rep. 859; Hume v. Des Moines, 146 Iowa, 624, 125 N.W. 846, 29 L. R. A. (N. S.) 126-132; Miller v. Morristown, 47 N. J. Eq. 62, 20 A. 61.

The real cause of the water collecting upon appellant's lots was the raising of the grade of K street and the alley back of these lots, which stopped the drains in Sixtieth street and the alley, thus impounding the water. The evidence fairly indicates that but for this grading the water would have passed off as formerly. The appellant herself makes this plain. With reference to the old drains in the alley in Sixtieth street and K street, she testified: 'Q. This is Sixtieth street, as I understand you. What do you call this (referring to identification A)? There was a drain which you say the city made some time down there, and opened it down there in Sixtieth street? A. Yes. Q. Was the ditch in K street at that time the same kind of a drain? A. No, it was a box. Q. Was it open on K, on this side? A. No, they covered it up. Q. How far does it run? A. Run down, as I understood, down to Fifty-Eighth. They had a big ditch down Fifty-Eighth. Q. If it was not for putting that drain in there by somebody by Mr. Wright or somebody, all of this water would have come across your place? A. Yes. Q. So far as that is concerned, that relieved you some? A. Yes, after they graded the street last winter, they put the dirt in here (indicating on exhibit). Q. That is what you complain of? A. Yes, I complain of them stopping the ditches and the natural drain. Q. Is it not a fact that the natural drain went down across the lots further? A. No, it went through the alley, not through Hadland's lots at all.'

It is now established law in this state that damages cannot be recovered for consequential injuries to private property occasioned by the original grading of streets and alleys. The dedication of streets and alleys to the public use implies an agreement of the dedicator and his successors in interest that the city may establish grades and improve the streets and alleys thereto in aid of such use. Ettor v. Tacoma, 57 Wash. 50, 106 P. 478, 107 P. 1061; Fletcher v. Seattle, 43 Wash. 627, 86 P. 1046, 88 P. 843; Laws 1909, p. 151, § 1 (2 Rem. & Bal. Code, § 7815); 4 Dillon's Municipal Corporations (5th Ed.) § 1684.

It is also the settled doctrine in this state that surface water, caused by the falling of rain or the melting of snow, is to be regarded as an outlaw or common enemy against which every proprietor of land may defend himself, even if in consequence of such defense injury result to others. As to surface waters this court has definitely adopted the rule of the common law as distinguished from the contrary rule of the civil law. Cass v. Dicks, 14 Wash. 75, 44 P. 113, 53 Am. St. Rep. 859; Harvey v. Northern Pacific Ry. Co., 116 P. 464; Gould on Waters (3d Ed.) § 265; 30 Am. & Eng. Encyc. of Law (2d Ed.) p. 330.

From the adoption by this court without qualification or restriction of these two doctrines, namely, that a municipal...