State v. Ponten

Neill, J.

(dissenting in part) — The majority rationale creates an exception to the reasonable use of land doctrine as enunciated in Evans v. Seattle, 182 Wash. 450 , 47 P.2d 984 (1935). That doctrine is paraphrased by the majority, stating that

If the state were just another property owner making proper and reasonable use of its own property, and if that use occasioned a diversion of percolating water on nearby property, it would be damnum absque injuria, and the trial court should be affirmed.

However, it concludes, that this rule does not apply in the present case. This conclusion seems based upon two premises; first, that the state is not in the same position as a private landowner when it has acquired the land either by or under threat of eminent domain; and, alternatively, that construction of a freeway is not a reasonable use of state’s land. I have difficulty with each of these premises.

The majority distinguishes Evans on the basis that there the public agency acquired title to its land by purchase rather than by eminent domain or the threat of it. Such a distinction has no basis in reality. Where a purchase of land by a public agency is being negotiated, the threat of condemnation constantly hangs over the bargaining table.

Once the state has attained the position of landowner, I *474 fail to see any rational basis for assigning different incidents of ownership depending on the manner of acquisition. Either the state is a landowner or it is not. Having paid a judicially determined fair price for the land, the state should occupy the same status as owner that a private citizen would enjoy or that the majority would grant in those instances where the state has obtained the land through private negotiation. To hold otherwise is to treat public agencies as continuing condemnors, even when they are making such use of their land as would not subject a private owner to liability. This result is contrary to our rule that the state will not be treated as a condemnor when doing things that would not be regarded as an actionable taking or damaging if done by a private citizen. See Wilkening v. State, 54 Wn.2d 692 , 344 P.2d 204 (1959); Taylor v. Chicago, Milwaukee & St. Paul Ry., 85 Wash. 592 , 148 P. 887 (1915); Smith v. St. Paul, Minneapolis & Manitoba Ry., 39 Wash. 355 , 81 P. 840 (1905).

It may be that I am misunderstanding the majority as placing emphasis on the manner of acquisition. Perhaps the second premise underlies the first — that a given use is unreasonable and thus renders the public body a condemnor rather than a landowner as to that use. Assuming the asserted unreasonableness, I do not believe that this justifies a judicially imposed mutation from landowner to condemnor. There is no need for it. If the use is unreasonable, the reasonable use doctrine does not apply and the landowner, public body or private citizen, is liable to neighbors for deprivation of their water. To say that such use causes the state to revert from the status of owner to that of condemnor is to impose a distinction without a difference between public and private landowners. This is to further confuse an already difficult area of the law, with no corresponding benefit that I can see.

Nor do I concur in the majority’s second premise — that construction of a freeway is per se an unreasonable use of the land. It is true, as the majority notes, that a private landowner would not ordinarily construct a freeway on his land. Neither would he construct a transit system, a sub *475 way, a sewage disposal plant, or any of the myriad other public works that we associate with government. But I do not agree that, since this use (freeway construction) would be unusual for a private landowner, it is, therefore, unreasonable for a public body.

Furthermore, I fail to see any logical distinction between the excavation made by the state in the highway construction and excavations that a private owner might make. If a private owner excavates to 15 feet for a sub-basement and a public body excavates a like depth for a highway, why is the former reasonable but the latter unreasonable? If a farmer drains his swamp in order to obtain tillable land and the state drains land in order to build a college, why is the former reasonable but the latter not? The distinction eludes me. Its application to other cases will be difficult for the courts, vexing for the litigants and costly to public bodies and private citizens alike.

I recognize that there may be good reason to establish a rule whereby the state, with its ability to spread the costs among all citizens, is required to recompense a private citizen who has lost his water supply by action of a public agency, which loss would be nonactionable if caused by a private landowner. But such rule is not required by the constitution. This court has neither the ability nor the means to test the desirability or the consequences of creating such a rule. In such areas as this, the consideration is best left to the committee rooms and halls of the legislature. However, I believe that the legislature has considered this matter and has created rules which may be applicable to these parties. I have reference to our ground water code which precludes the reasonable use doctrine as to non-percolating ground water.

Our ground water code (RCW 90.44) was enacted in 1945. Its scope is shown by the definition of ground waters in RCW 90.44.035:

All bodies of water that exist beneath the land surface and that there saturate the interstices of rocks or other materials — that is, the waters of underground streams or channels, artesian basins, underground reservoirs, lakes *476 or basins, whose existence or whose boundaries may be reasonably established or ascertained — are defined for the purposes of this chapter as “ground waters.”

RCW 90.44.040 declares that ground waters are subject to appropriation for beneficial use under the terms of the statute and not otherwise. Other sections of the chapter provide that one who appropriates ground water in accordance with the terms of the statute has a vested right in the amount of his appropriation, and that subsequent appropriators are limited to an amount that will maintain and provide a safe sustaining yield in the amount of the prior appropriation. Procedures are established for claiming rights to the use of water for settling disputes among water users, and for assuring that beneficial use of water is currently maintained. 10

The trial court concluded that the ground water code does not apply in this case. The basis of that conclusion is expressed in the memorandum opinion. The court said:

This statute [RCW 90.44] applies to cases involving the competitive or conflicting use of water. That is not the situation in this case. To hold otherwise would be to overrule the Evans case and do away with the reasonable use of land doctrine. This does not appear to be the intent of the Act. . . Language found in Wilkening v. State, supra, which was decided subsequent to the enactment of the ground water statutes, seems to indicate that that statute is not applicable in situations such as we are concerned with here. In that case one of the questions involved was the interference with the water table and the use of the water, but the court held that any resulting damage from such interference was damnum absque injuria.

*477 I read the statute otherwise. The ground water code is comprehensive in scope. Its purpose is to encourage and protect the beneficial use of our state’s ground water resources. The increasing scarcity of water resources renders them far more important today than they have been in the past. The statute contains no language limiting its application to conflicting use cases. To the contrary, an intent to protect beneficial use of water from all subsequent deprivation is indicated by the fact that the statute safeguards against willful or negligent waste of ground water (RCW 90.44.120). Evans v. Seattle, supra, involved percolating waters which are not controlled by the ground water code. As to nonpercolating ground waters, the rule of reasonable use of land enunciated in Evans no longer applies.

Subsurface waters are either “ground waters” within the definition of RCW 90.44.035, or they are percolating waters. As we noted in the case of Wilkening v. State, supra, all underground waters are presumed to be percolating. To overcome this presumption, it must clearly appear that the waters in question are statutory “ground waters.” In Wilkening , this threshold presumption was not overcome and the ground water code did not become relevant. In the present case, however, the record shows that the waters in question are “ground waters” within the meaning of the statute. To demonstrate this, we refer to the trial court’s unchallenged findings of fact. In relevant part, they state:

Natural basalt rock formations and other materials form a solid, impervious layer a small distance beneath the surface of the ground throughout the Garden Springs area. This impervious layer is shaped much like a large saucer or basin; the raised rim of which, consisting of basalt formations, protrudes above the surface of the ground and marks the boundaries of the Garden Springs area. Prior to the fall of 1962 the impervious layer caused the natural waters flowing through the area to be held back and collect in the basin and saturate the porous materials above the impervious layer forming an underground reservoir underlying the Garden Springs area. The outlet flow from the basin was impeded by the eastern rim of the impervious material which acted as a natural dam holding back the water and maintaining the *478 reservoir. This reservoir established a water table in the Garden Springs area which was very close to the surface of the ground and in many places the water broke through the surface in the natural springs from which the area derived its name. Recharge of the waters in said basin occurs by percolation from surrounding lands fed in part from precipitation and partially from seepage loss from a small stream, traversing the basin. The basin is also drained by the same creek and springs, however, the outlet flow from the basin was impeded on the east by a rim of impervious material which acted as a natural dam holding back the water and maintaining the reservoir. The general location and the extent of the Garden Springs water table was well known and the basalt outcroppings that marked its general boundaries were clearly visible.

Finding of fact No. 2.

The ground water which fed defendants’ wells did not flow in a confined channel through an underground cavern, opening or stream but filtered and flowed intersticially through the porous ground of the basin.

Finding of fact No. 9.

On the basis of these findings, the trial court concluded that the waters are percolating waters. I believe that he erred in so concluding. The trial court’s findings of fact place the underground waters in this case squarely within the statutory definition of ground waters. Apparently the trial court concluded that the ground water code does not apply except in competing water use situations; but, as discussed above, the code is comprehensive in scope and protects beneficial use against subsequent waste as well as against subsequent competing appropriation. Defendants are thus within the protection of the statute, both as a matter of general interpretation and specifically as regards the nature of the water involved.

The defendants’ water was removed, whether by total depletion or a lowering of the water table 11 is not shown by the record. While the ground water statute may be considered inapplicable to situations where the water supply is *479 not depleted (see, e.g., Wilkening v. State, 54 Wn.2d 692 , 344 P.2d 204 (1959), it can hardly be argued that the statute does not protect prior appropriations of ground water from loss by removal of the water. That is the case here.

The record is devoid of findings of fact or conclusions of law as to defendants’ status as prior appropriators under the ground water code. Accordingly, I would remand, with instructions that the trial court determine the rights of the parties to these ground waters under RCW 90.44.

This act reflects legislative recognition of the importance of water rights, water use, and the difficulty in administration of the state’s water resources caused by inadequate records. This recognition is made more obvious by RCW 90.14 (1967), as amended by Laws of 1969, Ex. Ses., ch. 284. That statute provides that all persons claiming the right to use ground or surface waters must file statements of claim by June 30, 1974. Failure to do so is conclusively treated as a waiver of the claim.

The thrust of these statutes is toward a treatment of water rights that comports with the increased relative importance of those rights.

See Wayman v. Murray City Corp., 458 P.2d 861 (Utah 1969).