Conger v. Pierce County , 116 Wash. 27 ( 1921 )

Holcomb, J.

(dissenting)—The foregoing opinion is an exceedingly able and admirable one, but I am unable to bring myself to concur in it.

I agree with the conclusions of the trial judge quoted in the majority opinion. I am firmly of the opinion that the act under which the work was done by the counties was an act under the police power. The improvements were certainly for the public welfare. It is assuredly in the interests of public welfare to improve the stream so as to prevent flooding and destruction of county roads and bridges. If the safety of travel by the public is not the public welfare, it is difficult to conceive what would be.

It is determined that the Puyallup river is a navigable river. As such its sovereignty is in the state, the state having asserted absolute title and control of the beds, shores and banks of navigable rivers. It is determined that the work by the counties was lawfully performed, and the counties had previously obtained the necessary rights-of-way and made compensation for any damage by reason of such taking and change of the channel of the stream.

Therefore, the damage to appellant, if attributable to respondents, is consequent upon a lawful act of respondents, and is damnum absque injuria. Wiel (3d ed.), Water Rights, §248; Dillon, Municipal Corporations (4th ed.), § 995; Cooley, Constitutional Limitations, p. 300; Hill v. Newell, 86 Wash. 227, 149 Pac. 951; Morton v. Hines, 112 Wash. 612, 192 Pac. 1016. Other authorities could be cited from our own and other courts, but the above citations are sufficient to sustain my view. I therefore dissent..