LIABILITY OF WASHINGTON STATE COLLEGE TO PRIVATE PROPERTY OWNERS FOR DAMAGES FROM DIVERTED SURFACE WATERS CAUSED BY CONSTRUCTION WORK

LIABILITY OF WASHINGTON STATE COLLEGE TO PRIVATE PROPERTY OWNERS FOR DAMAGES FROM DIVERTED SURFACE WATERS CAUSED BY CONSTRUCTION WORK

1. The State College of Washington is liable to private property owners for damage from surface waters where such surface waters have been diverted from their natural water course to a different water course.

2. The State College of Washington may expend public monies in the enlargement, alteration or improvement of the natural water course.

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                                                                October 24, 1950

Board of Regents
Washington State College
Pullman, Washington                                                                                                              Cite as:  AGO 49-51 No. 374

Attention:  Marshall A. Neill

Gentlemen:

            You have requested an opinion from this office on the following questions:

            1.         "Does the State College of Washington have any liability to private property owners for damage from surface waters if it is established as a fact that by grading, filling, and construction of buildings, the State College of Washington has increased the natural flow of surface waters through a natural water course and has diverted surface waters from other natural water courses to this water course?

            2.         "May the State College of Washington expend public monies in the enlargement, alteration or improvement of such a natural water course  [[Orig. Op. Page 2]] if it is established that the State College of Washington has increased the natural flow of surface waters through a natural water course?"

            Our conclusions may be summarized as follows:

            1. The State College of Washington is liable to private property owners for damage from surface waters where such surface waters have been diverted from their natural water course to a different water course.

            2. The State College of Washington may expend public monies in the enlargement, alteration or improvement of the natural water course.

                                                                     ANALYSIS

            As we understand the facts in this case, the State College of Washington has entered upon a large scale program of expansion which includes the construction of new buildings on the campus as well as surfacing large areas around some of the buildings.  In so doing, the natural flow of surface waters through a natural water course has been increased.  Prior to this time, all of the surface waters which have been drained off of the new buildings and paved surfaces have been drained into the natural water course.  However, another building has been constructed and surface waters have been diverted from the natural water course into the water course into which all of the other drainage now flows:

            InPeters v. Lewis, 28 Wash. 366, the Supreme Court held that where surface waters are 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.  In the case ofNoyes v. Cosselman, 29 Wash. 635, 640, the court quoted from the case ofJackman v. Arlingten Mills, 137 Mass. 283, as follows:

            "'We take the law to be, that the owner of land has no right to collect the surface water into an artificial stream, and discharge it upon the adjoining land of another in such quantities and in such a  [[Orig. Op. Page 3]] manner as materially to injure the land; but that such an owner has the right to collect the surface water and the natural drainage of his land into an artificial stream, and discharge it into a natural water course on his own land, if the water course is the natural outlet of the waters thus collected, even although, by this artificial arrangement, the flow of the waters is accelerated, and the volume at times is increased, provided that this is done in the reasonable use of his own land, and that the discharge is not beyond the natural capacity of the water course, and the land of a riparian owner is not thereby overflowed, and materially injured.  But he has no right to subject the land of another to a servitude of running water to which it is not naturally subject.'"

            InUlery v. Kitsap County, 188 Wash. 519, 63 P. (2d) 352, 523, the court reaffirmed the rule that one may not by artificial means, convey surface waters from his land and deposit them upon the land of others, or so near thereto that they will find their way thereon to the damage of others.  In addition, the court held that under Article I, section 16 of the Washington Constitution, it is a condition precedent to the exercise of the power of eminent domain that compensation shall first be made.  Any use of land for a public purpose which inflicts an injury upon adjacent lands is a taking and damaging within the Constitution.  See alsoTope v. King County, 189 Wash. 463, 65 P. (2d) 1283.  Although there appears to be no case in this jurisdiction on the specific question of diversion of surface waters from a natural water course, it is our opinion that in view of the statements of the court in the cases cited above our Supreme Court would follow the general rule that an owner of property may not drain into a water course surface waters which would not otherwise flow in that direction.  See 28 A.L.R. 1265, 56 Am.Jur. "Waters" § 74.

            For example, inTrigg v. Timmerman, 90 Wash. 678, 156 Pac. 846, the court cites with approval the note in 19 L.R.A. (N.S.) 167 to the effect that "'* * * the flow of surface water along such depressions or drain ways may be hastened and incidentally increased by artificial meansso long as the water is not diverted from its natural flow.'"  (Emphasis supplied).

             [[Orig. Op. Page 4]]

            In view of the ruling in the Ulery case, supra, Washington also follows the general rule that what is illegal in the drainage of surface waters in the case of a private individual is likewise illegal when attempted by the public authorities.

            Accordingly, you are advised that it is the opinion of this office that the State College of Washington is probably liable to private property owners for damage from surface waters which have been diverted from the natural water course.

            As we understand the situation, the Board of Regents of the State College propose to pay a portion of the cost of the project of enlarging and improving the natural water course which is being undertaken by the City of Pullman.  The share which the State College will pay is to be determined by the Regents of the College.  In view of the fact that the State College is probably liable for damages occasioned by the increased flow in the natural water course arising from its diversion of surface waters, it is our opinion that the College is authorized to expend public monies in remedying the situation.  Inasmuch as the Board of Regents does not propose to guarantee the payment of the cost of the project there can be no violation of Article VIII, section 5 of the State Constitution which prohibits the loaning of the credit of the state.

            Accordingly, it is the opinion of this office that the State College of Washington may expend public monies in enlarging or otherwise improving the natural water course.

Very truly yours,

SMITH TROY
Attorney General

JANE DOWDLE
Assistant Attorney General