Wilbour v. Gallagher

Norman and Ruth Gallagher (defendants) owned land on Lake Chelan, which was a navigable lake. The Gallaghers’ land was in the town of Chelan. Charles Wilbour and others (collectively, Wilbour) (plaintiffs) owned land nearby. When the town of Chelan was platted in the late 1800s, the plat map included quitclaimed property for streets and alleys to be held forever for the public. At that time, the lake’s natural waterline was about 1,080 feet above sea level. However, in approximately the 1930s, the Federal Power Commission granted authority to the Chelan Electric Company to build a dam on the lake. After the electric company built the dam, the company used the dam each year from mid-June through mid-September to raise the lake’s water level about 20 feet. As a result, during those months a portion of the Gallaghers’ land was submerged. Also submerged were the streets and alleys adjacent to the Gallaghers’ land. When the Gallaghers’ land was submerged, Wilbour used the submerged area for recreational purposes such as boating and swimming. In 1961, the Gallaghers started filling their land to prevent it from being submerged. Wilbour filed a class action against the Gallaghers for damages and to remove the fill. The Gallaghers responded that Wilbour’s injuries were damnum absque injuria. The trial court ruled that the Gallaghers need not remove the fill but that the fill had diminished the value of Wilbour’s property by about $20,000 because of algae buildup, loss of recreational use, and loss of view. The Gallaghers appealed the damages award. Wilbour cross-appealed to have the fill removed.