BEAVER CREEK LUMBER CO. v. RISSE. 525
Feb. 1923 Opinion Per PEMBERTON, J.
[No. 17573. Department Two. February 10, 1923.]
BEAVER CREEK LUMBER COMPANY, Appellant, v.
MARY RISSE, Respondent. «1»
EMINENT DOMAIN (126) - PROCEEDINGS - VALUE OF LAND - EVIDENCE
- ADMISSIBILITY. In eminent domain proceedings to condemn the
right to maintain a dam raising the height of the "water table"
affecting agricultural land, where a witness, testifying that
the proper height of a permanent water table should not be
closer than three feet, explanatory evidence as to the formation
of the subsoil is not material; since the "water table" means
the upper limit of the water, influenced by capillarity.
Appeal from a judgment of the superior court for
Thurston county, Wilson, J., entered January 30, 1922,
upon the verdict of a jury rendered in favor of the
defendant, in condemnation proceedings. Affirmed.
Vance & Christensen, for appellant.
Troy & Sturdevant and Geo. F. Yantis, for respondent.
PEMBERTON, J. - Appellant is maintaining a dam
across Beaver creek, in Thurston county, Washington,
of three and one-half feet in height. It filed its petition
in the court below, praying for the condemnation of
the right to maintain this dam and the fight to damage
the lands affected by the maintenance of the same.
Respondent owns a farm situate on the creek above the
dam about six hundred feet therefrom. It is claimed
by respondent that, although one-sixteenth of an acre
of land is covered by water as a result of the maintenance
of the dam, there is twelve and one-tenth acres
of land but two and one-half feet above the level of the
water in the creek as maintained, and an area of sixteen
and one-half acres but three and one-half feet
above the water level. It is claimed that the presence
«1» Reported in 212 Pac. 1056.
526 BEAVER CREEK LUMBER CO. v. RISSE.
Opinion Per PEMBERTON, J. 123 Wash.
of water permanently held by the dam, through capillary
attraction, makes it impossible to drain this soil
and it becomes cold and sour and unsuited for most
crops.
The appellant in its brief, in speaking of the facts
to be passed on by the jury, uses the following language:
"It (the jury) was required to say what portion, if
any, of respondent's lands were soaked and water
logged by percolation and by capillarity because of the
maintenance of the dam on the plaintiff's property
impinging, if at all, upon respondent's land to a very
minute degree."
The jury having passed upon the facts and having
found the damages to be in the amount of $600, we are
satisfied that this finding of the jury should not be
disturbed unless some error is disclosed by the record.
Appellant makes the contention that the court erred
in denying the motion to strike the testimony of Mr.
Stookey, one of the witnesses for the respondent "on
the matter of the effect of a permanent water table,
and the testimony of all witnesses as to values
following and having in mind the testimony and condition of
a. permanent water table existing."
In explaining the effect of raising the water in the
creek, upon the condition of the soil, and upon its
ability to produce crops, the witness Stookey was
asked: "What is generally considered the proper
height of permanent water table ? A. It shouldn't be
closer than three feet." To this answer appellant objected,
contending that the answer "should be connected
with certain other conditions," to which attorney
for respondent answered, "I will make that promise,"
and the court stated: "Yes, that will have to
be done." It is the contention of appellant that this
promise of respondent was not fulfilled, and that the
BEAVER CREEK LUMBER CO. v. RISSE. 527
Feb. 1923 Opinion Per PEMBERTON, J.
water table referred to consisted of some impervious
subsoil which would hold the water and not permit it
to sink into the ground.
Counsel for appellant state that "the promise to
show the existence of an impermeable table two or
three feet below respondent's land, interfering with
the law of gravitation and inducing capillarity, was
not kept, which fact, as we before pointed out, was
drawn to the court's attention at the conclusion of the
case by a motion to strike in ample time to permit the
keeping of the promise. Thus the jury was given an
opportunity to assume that beneath the respondent's
land was situated such a permanent table as testified
to by the expert."
It would seem that there is some confusion as to
what a water table really is. The true meaning of
"water table," when applied to the facts in fins case,
is:
"The upper limit of the portion of the ground wholly
saturated with water. This may be very near the surface
or many feet below it." Webster's New International
Dictionary.
The impermeable subsoil is not the water table on
which the water rests, but the upper limit of the water
is the water table, and this is influenced by capillarity.
The nature of the formation of the subsoil, so far as
this case is concerned, is immaterial.
The jury found that the construction of the dam
raised the water table to the injury of the respondent
in the amount of $600. There being no error shown,
the judgment will be affirmed.
MAIN, C. J., FULLERTON, PARKER, and TOLMAN, JJ.,
concur.