I am compelled to dissent from the reversal by the majority on the first cause of action of respondent.
The facts presented on behalf of respondent seem to me inadequately stated in the prevailing opinion. Among other things, it is not stated that appellant had never at any time contributed or paid for any of the original cost of construction, nor maintenance of the drainage system, nor acquired the right to use the drainage system to turn loose or divert the abandoned water into its system. As originally constructed, the drainage district was adequate to handle all water from 1911 to July, 1931. It is entirely inadequate to dispose of the added burden of the additional flow thrown back into the original water course, and it will be necessary to enlarge the drainage system at great expense to the district.
It also appears in evidence that the original flow of Woods creek was insufficient to supply the necessary water required by appellant, and in 1911 it acquired and diverted into the Woods creek reservoir from other sources about one and one-half to two million gallons of water a day from other springs and streams whose natural outlet was other than through Woods creek; and that the water thus acquired and diverted has been added to the Woods creek supply and is part of the water which now flows into this drainage district through the former Woods creek channel, thereby placing an added burden on the drainage district.
The first cause of action was based upon an original trespass of appellant by the casting of waters back into the old water courses to the damage of the drainage *Page 483 system of respondent. No negligence in the construction of the reservoir nor in its opening and abandonment was alleged or relied upon. It was not necessary or proper to charge negligence on behalf of appellant if its acts constituted trespass upon the property of respondents. Such a trespass consists in an entry on another man's ground without lawful authority and doing some damage, however inconsiderable, to his real property. Welch v.Seattle Montana R. Co., 56 Wash. 97, 105 P. 166, 26 L.R.A. (N.S.) 1047.
In Great Northern R. Co. v. State, 102 Wash. 348,173 P. 40, L.R.A. 1918E, 987, this court quoted with approval fromNevins v. City of Peoria, 41 Ill. 502, 89 Am. Dec. 392, among other things, as follows:
"The same law that protects my right of property against invasion by private individuals, must protect it from similar aggression on the part of municipal corporations. A city may elevate or depress its streets, as it thinks proper, but if, in so doing, it turns a stream of mud and water upon the grounds and into the cellars of one of its citizens, or creates in his neighborhood a stagnant pond that brings disease upon his household, upon what ground of reason can it be insisted, that the city should be excused from paying for the injuries it has directly wrought? . . . To the extent to which the owner is deprived of its legitimate use and as its value is impaired, to that extent he should be paid."
In our case, supra, we held the state liable for damages to the injured property owner, irrespective of negligence on its part.
It must also be remembered that the drainage district exercises quasi-public functions for a public purpose. The drainage of submerged or swamp lands is as necessary as any other kind of reclamation. It is not like a mere lower private owner of a servient estate.
Although respondent cited Matheson v. Ward, *Page 484 24 Wash. 407, 64 P. 520, 85 Am. St. 955, only in support of its second cause of action for injunctive relief against appellant, to my mind it has an important influence in sustaining the first cause of action.
In my opinion, the judgment should in all things be affirmed.