Northern Pacific Railway Co. v. Sunnyside Valley Irrigation District , 85 Wash. 2d 920 ( 1975 )

Hamilton, J.

Defendant’s irrigation canal broke, sending large quantities of water rushing through a drainage culvert under plaintiff’s railroad tracks. The culvert was inadequate to handle the water, and plaintiff’s railroad tracks were washed away. Plaintiff does not seek to recover on a tort theory, but rather on one or both of two other theories, i.e., constitutional taking and/or indemnification.

The facts were stipulated. In 1913, plaintiff railroad gave a written permit to Yakima County for construction of a culvert under plaintiff’s railroad tracks. The permit contained an indemnification agreement which read as follows:

The second party [Yakima County] agrees that the improvements [water pipelines, or culverts] shall not at any time damage the railroad or structures of the Company, or be a menace to the safety of its operations; and to indemnify and save harmless the Company from all loss and damage to its tracks, roadbed, structures, rolling stock and other property, and from injuries to persons, occasioned by the improvements.

In 1961, defendant, by contract with Yakima County and the United States Department of the Interior, took over operation and maintenance of the drainage system of which the culvert was a part. Such operation and maintenance was to be performed without cost to Yakima County, the drainage district, or the United States.

In 1969, as a result of unknown causes, defendant’s irrigation canal broke, resulting in the damages complained of. This action followed.

The trial court found for defendant on both issues. The Court of Appeals reversed, holding defendant bound by the indemnification agreement. The Court of Appeals did not reach the condemnation question. One judge dissented on grounds that defendant was not liable for any damage to the railroad tracks which was not proximately caused by its operation and maintenance of the culvert. Defendant exercised its right of appeal pursuant to RCW 2.06.030(e).

We first consider whether the indemnification agreement of the 1913 permit is effective to create liability on the part of defendant for the damage sustained. Such liability depends on a determination that the 1913 permit between plaintiff and Yakima County became binding on defendant by virtue of the 1961 agreement whereby defendant took over operation and maintenance of the drainage system, and also on a determination that the damage sustained was within the intended scope of the permit’s hold-harmless provision.

The Court of Appeals was of the view that “[i]nherent in this undertaking [defendant’s assumption of operation and maintenance of the drainage system] is an implied assignment to the defendant of Yakima County’s permit to use the culvert.” Northern Pac. Ry. v. Sunnyside Valley Irrigation Dist., 11 Wn. App. 948, 950, 527 P.2d 693 (1974). The agreement signed by defendant in 1961 contains no language expressly assigning the obligations and authorizations of the 1913 permit to it. The Court of Appeals reasoned, however, that an implied assignment was inescapable, since without the permit defendant was without authorization to include the culvert as a part of the drainage system operation.

However, even if there did exist an implicit assignment, we disagree with the Court of Appeals’ conclusion that the indemnity provision of the 1913 agreement encompasses the damage sustained here. Indemnity clauses are subject to fundamental rules of contractual construction, and are to be construed reasonably so as to carry out, rather than defeat, their purpose. Any ambiguity is to be resolved against the drafter — here, the plaintiff. Jones v. Strom Constr. Co., 84 Wn.2d 518, 520, 527 P.2d 1115 (1974) , The indemnity language of the 1913 permit refers to damage “occasioned by the improvements.” It is apparent from the permit .document that “improvements” refers to the water pipelines (culverts) authorized by the permit to be built under, plaintiff’s tracks. The culvert was adequate for normal' drain flows, i.e., for carrying seepage, waste, and runoff waters from irrigation and rainfall. .It was not designed, expected, nor intended to function adequately in flood conditions or other unusual situations involving large quantities of water such as caused the damage here. The washout of plaintiff’s roadbed occurred independent of the culvert. The deluge resulted from a source only indirectly related to the culvert, and the washout of the roadbed was clearly not “occasioned” by the culvert. To extend this hold-harmless provision, so far would be unreasonable. The culvert itself did not fail to operate effectively as a culvert; it only failed to transform itself' into a tunnel at the crucial moment.

Insofar as there is ambiguity in the 1913 permit, therefore, we must limit its scope to damage actually “occasioned by the improvements,” that' is, resulting from a cause directly related to the culvert.

We next consider the second argument advanced by plaintiff: whether the washout of the roadbed constitutes an uncompensated taking or damaging under article 1, section 16 of our state constitution.¹

Plaintiff cites many cases holding that an invasion of private lands constitutes an unconstitutional taking. These cases, however, almost uniformly involve permanent or recurring damage inherent in some plan of work. The major decisions of this court considering the difficult distinction between a constitutional taking under article 1, section 16, and a mere tortious interference, are in agreement that a constitutional taking is a permanent (or recurring) invasion of private property. Wong Kee Jun v. Seattle, 143 Wash. 479, 255 P. 645, 52 A.L.R. 625 (1927); Boitano v. Snohomish County, 11 Wn.2d 664, 120 P.2d 490 (1941); Olson v. King County, 71 Wn.2d 279, 428 P.2d 562, 24 A.L.R.3d 950 (1967). As was pointed out by the dissenting judge below:

Temporary interference with a private property right, which is not continuous nor likely to be reoccurring, does not constitute condemnation without compensation.

(Citations omitted.) Northern Pac. Ry. v. Sunnyside Irrigation Dist., supra at 956-57.

Damage is permanent if the property may not be restored to its original condition. See Colella v. King County, 72 Wn.2d 386, 433 P.2d 154 (1967). The damage to plaintiff’s roadbed does not meet this requirement. According to the stipulated facts, the embankment was replaced and the tracks repaired. Accordingly, we find no constitutional taking here.

Plaintiff asserts that failure to proceed in tort does not necessarily result in denial of liability for a substantial invasion of private property. While this assertion is valid as an abstract proposition (see Kuhr v. Seattle, 15 Wn.2d 501, 131 P.2d 168 (1942)), plaintiff must still establish the ele-, ments of another theory, e.g., nuisance or trespass. This plaintiff does not purport to do in this action.

The decision of the Court of Appeals is reversed, and the case is remanded to the trial court with instructions to reinstate its original judgment.

Stafford, C.J., and Finley, Wright, Brachtenbach, and Horowitz, JJ., concur.

1 “Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, and no right-of-way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases in courts of record, in the manner prescribed by law. Whenever an attempt is made to . take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public: Provided, that the taking of private property by the state for land reclamation and settlement purposes is hereby decláred to be for public use.” Const. art. 1, § 16 (amendment 9).