(dissenting) — As a result of the defendant’s maintenance and operation of an irrigation and drainage system; both public uses, the plaintiff’s land was damaged in the amount of $6,000. The cause of the break in the irrigation channel is not known, and thus the plaintiff cannot prove that the defendant was negligent. These facts are not disputed. Is the court then to turn the plaintiff away without a remedy, merely because the admitted facts do not precisely fit into some legal pigeonhole? Because the court does not conceive that the damages were “permanent”? Or because an indemnity agreement which would appear to be rather comprehensive in its terms did not expressly mention flooding? Or because the plaintiff has not used the magic words “nuisance”2 or “trespass”? In attaching so much importance to niceties of theory, I fear the court has not paid sufficient attention to the question of justice between the parties. Observing the fastidious mood of the majority, I suspect some flaw would have been found in the plaintiff’s case regardless of the doctrine upon which it relied.
In Kuhr v. Seattle, 15 Wn.2d 501, 131 P.2d 168 (1942), the plaintiff’s property was damaged when earth from an unimproved city street slid upon it. The encroachment resulted from a fill being made on the street by persons other than the defendant city. The city claimed that it was not liable for the damage because it had not improved the street. This court found this defense to be without merit, and said that when a property owner’s right to be free of encroachment is invaded, it is of little moment what the *926theory of his cause of action may be. Whether it be brought on the theory of trespass, nuisance, negligence, or violation of rights guaranteed by article 1, section 16, of the constitution is not important; but if, under the facts and circumstances of the particular case, the theory of the cause of action is adapted to the relief sought, it is sufficient.
The majority today has abandoned this principle.
Const, art. 1, § 16 (amendment 9), provides:
No private property shall be taken or damaged for public . . . use without just compensation having been first made, ...
The constitution contains no requirement that the damage be permanent. If that limitation upon the constitutional right to damage exists, it has been judicially imposed. I cannot perceive a rational basis for it. Certainly the majority opinion offers none. The plain meaning of the words used in the constitution is that, if a person’s property is damaged for a public use, he shall be compensated, whether the damage is permanent or is temporary in nature.
Here the plaintiff’s property took the overflow from a public drainage system and was thereby damaged. It was in effect used as a part of the system, albeit temporarily. To my mind that damage was compensable under article 1, section 16.
I do not find that the element of permanence has been consistently required in our cases. Following are some of the types of damage which have been said to be compensable under the constitutional provision:
Water released by the lowering of a lake collected upon plaintiff’s land (Wendel v. Spokane County, 27 Wash. 121, 67 P. 576 (1902)); defendant constructed a culvert which directed water upon the plaintiff’s land, causing érosion (Rohsnagel v. Northern Pac. Ry., 69 Wash. 243, 124 P. 900 (1912)); construction of a highway caused slides which damaged a railroad embankment and tracks (Great N. Ry. v. State, 102 Wash. 348, 173 P. 40 (1918)); elimination of a *927bend in a river caused flooding and erosion which, damaged plaintiff’s building (Conger v. Pierce County, 116 Wash. 27, 198 P. 377, 18 A.L.R. 393 (1921)); debris was cast upon adjacent property as a result of blasting for roadbuilding (Spokane, P. & S. Ry. v. State, 159 Wash. 529, 294 P. 231 (1930)); an inadequate culvert in a county road caused flooding of plaintiff’s land (Ulery v. Kitsap County, 188 Wash. 519, 63 P.2d 352 (1936)); water diverted through a channel from a spring flooded plaintiff’s land (Boitano v. Snohomish County, 11 Wn.2d 664, 120 P.2d 490 (1941)); roadside ditches overflowed onto plaintiff’s land, causing damage to buildings and crops (Harkoff v. Whatcom County, 40 Wn.2d 147, 241 P.2d 932 (1952)); water was released onto plaintiff’s land (Colella v. King County, 72 Wn.2d 386, 433 P.2d 154 (1967)).
It will be seen that the damage in a number of these cases was repairable and not of a continuing nature and therefore not permanent. In the last cited case it was expressly recognized that a constitutional damaging may be involved, even though the damage is not permanent.
It seems to me that, while this and other courts have used the word “permanent” in characterizing the type of damage which falls within the constitutional provision, they have nevertheless applied the provision where the damage was correctable. A more significant emphasis has been upon the distinction between damage which is caused solely by negligence on the part of the government body and damage which results from the construction, maintenance and operation of a public facility or installation.
Here, the flooding occurred without anyone’s fault, insofar as the evidence shows. The water, flowing in the direction in which it was designed to flow in the drainage system, caused the damage to the plaintiff’s property. The culverts were inadequate to contain the extraordinary flow of water. Whether that was the result of negligence is a matter which the plaintiff should not have to prove. He *928need only show that the operation of the system for the public benefit caused damage to his land.3
In Ulery v. Kitsap County, supra, this court aptly said that any use of land for a public purpose which inflicts injury upon adjacent land, such as would have been actionable if done by a private owner, is a taking and damaging within the constitution. The damage here was of that nature.
A most relevant and coherent basis for determining whether a particular damage is one which is compensable under article 1, section 16, is that which is set forth in Great N. Ry. v. State, 102 Wash. 348, 173 P. 40 (1918), where this court said that if the state could have condemned the right to invade the plaintiff’s property or to inflict the damage, the damage is compensable. Under the authority of RCW 87.03.140, the irrigation and drainage district could have condemned the right to use the plaintiff’s land for overflow. The pertinent and rational test is met.
The indemnity agreement entered into by the defendant’s predecessor was but an acknowledgment of a duty which would have existed independent of the agreement. It was the duty of the owner of the drainage system, a public corporation, to compensate the owner of adjacent property if, as a result of its maintenance and operation, that property suffered damage.
I would reverse the court below and order the entry of judgment in favor of the plaintiff.
Hunter and Utter, JJ., concur with Rosellini, J.As for the theory of nuisance, the statute provides:
Nothing which is done or maintained under the express authority of a statute, can be deemed a nuisance.
RCW 7.48.160.
An activity which if not authorized by law would be a nuisance may constitute a compensable damaging under article 1, section 16 of the Washington Constitution. Jacobs v. Seattle, 93 Wash. 171, 160 P. 299 (1916).
See Comment, Distinguishing Eminent Domain from Police Power and Tort, 38 Wash. L. Rev. 607, 610 (1963).