Peters v. Lewis , 28 Wash. 366 ( 1902 )

Tlie opinion of tlie court was delivered by

Hadley, J.

— This action was brought by appellant .against respondents to procure an injunction against an alleged. discharge of drainage upon appellant’s premises, and to recover damages alleged to have already accrued from such drainage. The complaint shows that appellant is the owner of a certain lot in the city of Seattle, upon which stands a building which is let to merchants and others for business purposes; that- the property is valuable, .and a source of great profit to appellant; that respondents are the owners of a certain lot adjoining that belonging to appellant, and on the south thereof; that on the north .side of respondents’ lot two buildings have been erected by respondents, which are used and occupied as dwelling houses; that the said two buildings are so situated upon respondents’ premises that the drainage therefrom is discharged upon appellant’s premises; that, for the purpose of preventing dirt and other accumulations from falling from respondents’ premises upon appellant’s premises, appellant constructed a wall or box head between the two, the same being necessary for the protection of appellant’s premises; that respondents wrongfully and wilfully continued to permit the drainage from their said buildings to bo discharged upon appellant’s premises, and that by rc ason thereof said wall or box head has been broken down, the. floors of appellant’s building have been greatly damaged, and a large amount of dirt has been deposited upon and against said building; that said drainage accumulations are greatly injuring his said building and annoying his tenants, and, unless respondents are restrained, the buildings will be still further greatly damaged, and his injury will be irreparable. The -.damages are alleged to be $1,000, for which sum judgment is asked; and a perpetual injunction enjoining the further continuance of the acts complained of is also asked. To the complaint a demurrer was interposed by •respondents on the ground that sufficient facts are not stated to constitute a cause of action. The demurrer was-sustained, and judgment entered against appellant for costs. From such judgment this appeal was taken.

Respondents move to dismiss the appeal on the alleged ground that this is an appeal from an order denying a temporary injunction, and that, under the authority of Colby v. Spokane, 12 Wash. 690 (42 Pac. 112), it is not an appealable order, since no finding was made that respondents are insolvent. We think, however, that the-appeal should be treated as one from a judgment on an order sustaining a demurrer to the complaint, plaintiff having declined to plead further. It appears from- the-record that the court determined the whole matter upon what was deemed to be the insufficiency of the complaint, and, since appellant saw fit not to plead further, there was-no further hearing open to- him in the case-, and the judgment became final and appealable. The motion to dismiss-the appeal is denied.

It is assigned as error that the court sustained the de^murrer to the complaint. It is insisted by the respondents-that the complaint does not show that the drainage is more than a natural surface flow from respondents’ lot toward and upon appellant’s lot, and that no cause of action can be founded thereon. If the complaint showed only what is asserted by respondents, their position might be-stronger; but we think the complaint contains allegations which are sufficient as against demurrer, to the effect that the drainage complained of is more than the natural surface drainage. It is alleged that “the defendants have said two buildings so erected and situate on their said premises that the drainage from said two- buildings . is discharged upon plaintiff’s said above-described premises.” While the allegation might have been made more-specific, yet there is no motion in the record calling for a more specific statement; and we think the allegation is-comprehensive enough, to admit of proof that water is not only collected by the roofs of the buildings, and discharged in a body upon appellant’s lot, but also that drainage from the buildings of a sewage character is likewise-discharged. Such an attempt on the part of a lot owner to make an adjoining lot subservient to the convenience of his own cannot be without remedy. It has been held that the casting of masses of water upon the premises of an abutting owner, caused by the construction of a sewer by a city, is a taking of lands, within the constitutional prohibition. Thurston v. St. Joseph, 51 Mo. 510 (11 Am. Rep. 463). It has been further held that where, by means of a ditch, the quantity of water flowing from one farm to-another is increased over the amount of the natural flow, or where it is caused to be discharged in a different manner from that of the natural flow, to the injury -of an adjoining landowner, the party causing such discharge is liable for the damage thus occasioned. Livingston v. McDonald, 21 Iowa, 160 (89 Am. Dec. 563).

“An owner of land has no right to rid his land of surface water, or superficially percolating water, by collecting it in artificial channels and discharging it through or upon the land of an adjoining proprietor.” Gould, Waters (3d ed.), § 271.

iVumerous cases are cited by the author. It seems, therefore, 1o be the rule that when surface water is collected, and discharged upon adjoining lands in quantities greater than, or in a manner different from, the natural flow, a liability accrues for the injury occasioned thereby. Injunction is also held to be a proper remedy where the injury is a continually recurring one, and cannot be compensated in damages. Gould, Waters (3d ed.), §§ 536? 553; 1 High, Injunctions (3d ed.), § 751.

In addition to tlie allegation in this complaint that the drainage from the two buildings is discharged upon appellant’s lot, it is also alleged that the surface drainage from the north side of respondents’ lot is likewise discharged. The allegation is made in such connection, however, that we think a reasonable interpretation of the pleading must be that such surface drainage is due to the erection and maintenance of respondents’ buildings, and that it is not, therefore, the natural surface drainage. The question is .argued by respondents’ counsel that a lower estate must he subservient to the natural surface drainage of an upper ■one, while appellant’s counsel urges that a distinction is made between urban and rural property in this particular, and cites some strong authority in support of the position. 'That question is an important one, however, and, as. we 'have said, it is not directly raised by the complaint in this ■case. We therefore decline to pass upon it here.

Since we believe the complaint states a cause of action, the judgment is reversed, and the cause remanded, with instructions to the lower court to overrule the demurrer.

Eeavis, C. J., and Fullerton, Anders, Dunbar, Mount and White, JJ., concur.