ELR Citation: ELR 20172
No(s). 476 41821 II (Wash. Ct. App. Dec 13, 1971)

Appellants, farmers living downstream from the city's sewage treatment plant, sought damages for diminished value of their property caused by the inability of the city to treat industrial sewage placed into the stream. The dumping of polluted wastes by a city into a private watercourse constitutes a taking, and the statutes of limitations will not bar an action, since the evidence suggested that it wasn't until the 1960s that the city began accepting large amounts of waste it could not treat. The appellants must show by a preponderance of the evidence that damage to their property had, within the limitations period, differed substantially in kind or was greater in degree than prior to that period. The damages will be measured as the decline in market value at the time of trial; no damages will be awarded to any appellant found to have acquired property within the limitations period, since the price he paid already would have taken the diminution of value into account. Dismissal of the action by the lower court reversed and case remanded for trial.

Counsel for Appellants
Yancey Reser
Sherwood, Tugman, Gose & Reser
601 Baker Building
Walla Walla, WA 99362

Counsel for Respondent
James B. Mitchell City Attorney
707 Baker Building
Walla Walla, WA 99362