Millard, J. —
This action was instituted to recover damages in the amount of twenty-five thousand dollars, alleged to have been sustained by plaintiffs as a result of the unlawful encroachment and casting of material upon their real property by defendant in its excavation for, and construction of, a building upon the state capitol grounds at Olympia. Defendant admitted encroachment upon plaintiffs’ real property, but denied damage to the property in any amount as a result of that invasion. The cause was tried to the court, which found that defendant in the prosecution of the construction of a new building, known as the transportation building in the state capitol group, acting pursuant to law, made arrangements for excavating for the foundation of said building and for the dumping of the excavated material upon a slope then existing within the capitol grounds and located in close proximity to the common boundary of plaintiffs’ property and defendant’s property (plaintiffs’ northerly boundary and defendant’s southerly boundary). Acting through its engineering representatives and through a contractor engaged for that purpose, defendant began and continued the excavation and dumping and created a large fill of clay, earth, and gravel extending south of its building site toward the common boundary with plaintiffs.
“Said excavation and dumping so carried on by the State of Washington through said Committee at the location aforesaid, has caused slips or slides of material to occur, and as the same occurred defendant has caused additional material to be deposited to replace that which has slipped or washed away, the result of which has been to produce large movements of earth, rock and debris and surface growth upon the aforesaid slope, down the aforesaid slope, and across the aforesaid common boundary. Said slips and slides are of a continuing nature and occurred at various times since said fill was put in, one slide having occurred a few weeks prior to the date of trial. As an immediate and direct result of said slips and slides of material, large masses of earth, rock and debris and surface growth have been deposited upon plaintiffs’ property, by reason of which the valuable lawn, gardens, ornamental trees and shrubs then existing upon the plaintiffs’ property have been buried and destroyed. As a further and immediate direct result of said slips and slides and deposits of material upon plaintiffs’ property, the lower part of plaintiffs’ property has been used by the State as the toe of said slope and is burdened with earth, rock, debris and surface growth deposited thereon. As a further and immediate result of said slips and slides and deposits of material, water from Defendant’s property drains onto Plaintiffs’ property and the natural drainage of Plaintiffs’ property as it formerly existed has been changed so that drainage of water from Plaintiffs’ property has been impeded, resulting in the forming of a boggy area on the lower part of Plaintiffs’ property. That as a direct result of the aforesaid acts of the State of Washington and the encroachment upon and use of Plaintiffs’ property as the toe for said slope and by reason of said slides and by change of drainage as aforesaid, the fair and reasonable market value of the Plaintiffs’ property has been reduced and depreciated in the sum of Ten Thousand ($10,000) Dollars, and Plaintiffs have been damaged in said amount.”
Judgment consonant with the foregoing findings was entered in favor of plaintiffs. Defendant appealed.
Counsel for the state assign as error the refusal of the court to consider appellant’s evidence on the question of damages. It is argued that, while the court listened to the testimony of the witnesses, observed their demeanor on the stand, and personally viewed the premises, it is ob
vious from a reading of- a portion of the court’s memorandum opinion that the court refused to consider the appellant’s evidence on the question of damages to respondents’ real property. The court’s memorandum opinion reads as follows:
“It is patent that the witnesses for the State in this case proceeded upon a fundamentally wrong idea. They conceded encroachment by the State, but insisted that because the property was more valuable than the usual residence in Olympia and that because the grounds were larger than is usual for the average residence, that the market value had not been decreased because a buyer would not desire the additional acreage.
“The court viewed the property and the fact of encroachment and damage is very apparent. Because of the view just expressed, the only testimony left in the record is the testimony of plaintiff’s witnesses, who are men of experience and ability in their line.
“In accordance with their testimony and the Court’s belief, judgment may be taken for the plaintiff in the sum of ten thousand dollars ($10,000).”
Counsel for the state concede that ordinarily the memorandum opinion of the trial court constitutes no part of the record on appeal, but insist, citing as sustaining authority
English v. Hetherington & Berner,
71 F. (2d) 613, that, where, as in the case at bar, the trial court in its written opinion passes on the admissibility of evidence, which was the effect of the court’s refusal to consider appellant’s evidence on the question of damages, the trial court’s opinion to that extent becomes a part of the trial record and should be considered on appeal. To further buttress their position, counsel for appellant cite subd. 5, Supreme Court Rule IX, 193 Wash. 11-a, which provides that, where the trial court has filed a written memorandum giving its reasons for its decision, the same shall be included as a part of the statement of facts. In
Quigley v. Barash,
135 Wash. 338, 237 Pac. 732, in answer to the contention of appellant that the trial court, at the conclusion of the testimony, gave an oral decision contrary to its written findings, we held that the court’s oral
decision was not a finding of fact and that the final ruling was “within the breast of the court” until it entered its formal findings. See, also,
Colvin v. Clark,
96 Wash. 282, 165 Pac. 101;
In re Patterson,
98 Wash. 334, 167 Pac. 924;
Swanson v. Hood,
99 Wash. 506, 170 Pac. 135.
In
Johnson v. Pheasant Pickling Co.,
174 Wash. 236, 24 P. (2d) 628, we held that, under Rule of Court III, subd. 4, 159 Wash, xxxiv — the old number of the rule cited by appellant in the case at bar — which provides that a memorandum decision of the trial court if brought to this court on appeal shall be made a part of the statement of facts, such decision will be stricken if included in the transcript and not made a part of the statement of facts.
As the memorandum opinion was not made in pursuance of statute or court rule nor was it incorporated in and made a part of the court’s formal findings, it is no part of . the findings of fact and judgment entered pursuant thereto, and cannot be used to impeach the findings or judgment. The trial court’s memorandum opinion was merely an informal expression of the court’s views and forms no part of the findings or judgment.
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Millard, J. —
This action was instituted to recover damages in the amount of twenty-five thousand dollars, alleged to have been sustained by plaintiffs as a result of the unlawful encroachment and casting of material upon their real property by defendant in its excavation for, and construction of, a building upon the state capitol grounds at Olympia. Defendant admitted encroachment upon plaintiffs’ real property, but denied damage to the property in any amount as a result of that invasion. The cause was tried to the court, which found that defendant in the prosecution of the construction of a new building, known as the transportation building in the state capitol group, acting pursuant to law, made arrangements for excavating for the foundation of said building and for the dumping of the excavated material upon a slope then existing within the capitol grounds and located in close proximity to the common boundary of plaintiffs’ property and defendant’s property (plaintiffs’ northerly boundary and defendant’s southerly boundary). Acting through its engineering representatives and through a contractor engaged for that purpose, defendant began and continued the excavation and dumping and created a large fill of clay, earth, and gravel extending south of its building site toward the common boundary with plaintiffs.
“Said excavation and dumping so carried on by the State of Washington through said Committee at the location aforesaid, has caused slips or slides of material to occur, and as the same occurred defendant has caused additional material to be deposited to replace that which has slipped or washed away, the result of which has been to produce large movements of earth, rock and debris and surface growth upon the aforesaid slope, down the aforesaid slope, and across the aforesaid common boundary. Said slips and slides are of a continuing nature and occurred at various times since said fill was put in, one slide having occurred a few weeks prior to the date of trial. As an immediate and direct result of said slips and slides of material, large masses of earth, rock and debris and surface growth have been deposited upon plaintiffs’ property, by reason of which the valuable lawn, gardens, ornamental trees and shrubs then existing upon the plaintiffs’ property have been buried and destroyed. As a further and immediate direct result of said slips and slides and deposits of material upon plaintiffs’ property, the lower part of plaintiffs’ property has been used by the State as the toe of said slope and is burdened with earth, rock, debris and surface growth deposited thereon. As a further and immediate result of said slips and slides and deposits of material, water from Defendant’s property drains onto Plaintiffs’ property and the natural drainage of Plaintiffs’ property as it formerly existed has been changed so that drainage of water from Plaintiffs’ property has been impeded, resulting in the forming of a boggy area on the lower part of Plaintiffs’ property. That as a direct result of the aforesaid acts of the State of Washington and the encroachment upon and use of Plaintiffs’ property as the toe for said slope and by reason of said slides and by change of drainage as aforesaid, the fair and reasonable market value of the Plaintiffs’ property has been reduced and depreciated in the sum of Ten Thousand ($10,000) Dollars, and Plaintiffs have been damaged in said amount.”
Judgment consonant with the foregoing findings was entered in favor of plaintiffs. Defendant appealed.
Counsel for the state assign as error the refusal of the court to consider appellant’s evidence on the question of damages. It is argued that, while the court listened to the testimony of the witnesses, observed their demeanor on the stand, and personally viewed the premises, it is ob
vious from a reading of- a portion of the court’s memorandum opinion that the court refused to consider the appellant’s evidence on the question of damages to respondents’ real property. The court’s memorandum opinion reads as follows:
“It is patent that the witnesses for the State in this case proceeded upon a fundamentally wrong idea. They conceded encroachment by the State, but insisted that because the property was more valuable than the usual residence in Olympia and that because the grounds were larger than is usual for the average residence, that the market value had not been decreased because a buyer would not desire the additional acreage.
“The court viewed the property and the fact of encroachment and damage is very apparent. Because of the view just expressed, the only testimony left in the record is the testimony of plaintiff’s witnesses, who are men of experience and ability in their line.
“In accordance with their testimony and the Court’s belief, judgment may be taken for the plaintiff in the sum of ten thousand dollars ($10,000).”
Counsel for the state concede that ordinarily the memorandum opinion of the trial court constitutes no part of the record on appeal, but insist, citing as sustaining authority
English v. Hetherington & Berner,
71 F. (2d) 613, that, where, as in the case at bar, the trial court in its written opinion passes on the admissibility of evidence, which was the effect of the court’s refusal to consider appellant’s evidence on the question of damages, the trial court’s opinion to that extent becomes a part of the trial record and should be considered on appeal. To further buttress their position, counsel for appellant cite subd. 5, Supreme Court Rule IX, 193 Wash. 11-a, which provides that, where the trial court has filed a written memorandum giving its reasons for its decision, the same shall be included as a part of the statement of facts. In
Quigley v. Barash,
135 Wash. 338, 237 Pac. 732, in answer to the contention of appellant that the trial court, at the conclusion of the testimony, gave an oral decision contrary to its written findings, we held that the court’s oral
decision was not a finding of fact and that the final ruling was “within the breast of the court” until it entered its formal findings. See, also,
Colvin v. Clark,
96 Wash. 282, 165 Pac. 101;
In re Patterson,
98 Wash. 334, 167 Pac. 924;
Swanson v. Hood,
99 Wash. 506, 170 Pac. 135.
In
Johnson v. Pheasant Pickling Co.,
174 Wash. 236, 24 P. (2d) 628, we held that, under Rule of Court III, subd. 4, 159 Wash, xxxiv — the old number of the rule cited by appellant in the case at bar — which provides that a memorandum decision of the trial court if brought to this court on appeal shall be made a part of the statement of facts, such decision will be stricken if included in the transcript and not made a part of the statement of facts.
As the memorandum opinion was not made in pursuance of statute or court rule nor was it incorporated in and made a part of the court’s formal findings, it is no part of . the findings of fact and judgment entered pursuant thereto, and cannot be used to impeach the findings or judgment. The trial court’s memorandum opinion was merely an informal expression of the court’s views and forms no part of the findings or judgment.
“While it is said to be proper for the trial court in rendering a decision to embody its reasons in either a written or oral opinion, such an opinion does not constitute either findings of fact or conclusions of law. This being so, it is not commendable practice for a court in its formal findings to refer to and incorporate a portion of a written opinion on file.” Bancroft’s Code Practice and Remedies, Yol. 2, § 1682, p. 2161.
“It is said to be commendable practice for a trial court to furnish counsel or file with the records a statement announcing the reasons for its decision. Such a statement, however, is in no way binding; its only function is to indicate the judge’s opinion as to the points involved and his views as to the law applicable. The statement of reasons constitutes no part of the decision of the court, is insufficient as a finding of fact, and should not be incorporated into the conclusions of law; it may indeed be modified or nullified by the making of findings of fact and conclusions of law, or by the entry of a judgment, inconsistent therewith, and it may not be employed to impeach the findings.”
Bancroft’s Code Practice and Remedies, Vol. 2, § 1615, p. 2081-2082.
While a memorandum opinion of the trial court may be brought to this court on appeal, if made a part of the statement of facts, such memorandum opinion is not made in pursuance of statute nor required by any rule of court; hence, it cannot be used to impeach the court’s findings or judgment.
We are clear from our reading of the memorandum decision that the trial court did not, in effect, strike the evidence of appellant’s expert witnesses, but found that that evidence was outweighed by the testimony of respondents’ expert witnesses on value.
The findings of the trial court on conflicting evidence will not be disturbed unless the evidence clearly preponderates against the findings. The evidence is as follows:
In 1931, respondents purchased the property in question. It consists of three parcels or lots upon which is a thoroughly modern brick residence containing ten rooms, four bathrooms, and a lavatory. The residence is upon a lot which we will designate as tract A, which has a frontage of 103 feet on Sylvester street and is 124 feet long. Tract A is respondents’ lot B, which abuts lot A to the west. It is 264 feet along the north on appellant’s boundary by 115 feet east and west. The lot designated as C extends westerly from lot B a distance of 375 feet for the north boundary and approximately 287 feet for the easterly boundary, which is waterfront. The lower part of respondents’ property sloped gently toward the water and the whole property overlooks Puget Sound with a view of the Black Hills in the distance. The landscaping and gardens in the fall of 1938 were substantially the same as when respondents purchased the property in 1931. That portion of the property surrounding the house was in lawns and gardens with water system throughout. That portion of the property from the main lawn sloping down toward the sound and northerly toward the land of appellant retained a portion
of its natural growth but had been improved with ornamental trees, lawn, and a formal garden; in fact, the property was known as one of the show places of Olympia.
Adjoining the property of respondents to the north and running from Sylvester street to the water is property owned by appellant which was purchased from a Mr. Haig and is referred to as the Haig property. This property lies between respondents’ property and the new transportation building, which appellant commenced to construct in November, 1938. This building closely adjoins the Haig property, which with the other property of the state upon which the transportation building was built, drops off rapidly toward Puget Sound, the foundation of the transportation building being only a few feet from the edge. On the Haig property immediately north of the common boundary line between it and respondents’ property was a gully running from an easterly apex westerly in the sound becoming deeper and wider as it descended. Respondents’ property was so situated that the natural drainage from it flowed onto the Haig property.
All of the surface dirt and excavation for the basement of the transportation building were dumped as a fill on the Haig property. This work was done during the rainy winter season of November, December, and January. This dirt filled the gully and moved over from a northeasterly to a southwesterly direction onto respondents’ property. Some i of the dirt was deposited into the sound, but a large amount was deposited upon the lawns and gardens of respondents’ property. The first slide covered most of the flower beds and gardens on tract C. Subsequent slides occurred farther up the slope on tract B, and that dirt slid down into the gardens.
In addition to flooding the gardens with mud, the fill reversed the natural flow of drainage from respondents’ property, as a result of which the portion which was lawn on tract C became practically a swamp. As part of the dirt washed into Puget Sound, a delta was formed in front of respondents’ property, so that, instead of having a clear beach as before, the delta caused a collection of refuse
on respondents’ waterfront. As late as 1943, there was a slide which deposited a considerable amount of gravel onto respondents’ property.
The evidence is in conflict as to the amount of dirt and other material deposited by the slides upon respondents’ property. It is clear that there has been an actual encroachment upon respondents’ property by a number of slides from the large unstable fill placed upon -appellant state’s property, and that there had been a continuous washing out and filling in with new material, and that the fill, which is approximately 118 feet in height, had not come to rest, although the work on it began more than five years prior to the commencement of the trial. An engineer for appellant state testified that in his opinion the fill had become stabilized, but we note that, in a letter written by him December 29, 1941, to an assistant attorney general, he entertains the view that there is a possibility of further sliding. There is evidence that the first slide covered the formal gardens and lawn on the lower part of respondents’ property and that thereafter it was not possible to maintain such gardens and lawns.
As a result of appellant’s creation of the delta in front of respondents’ property, respondents now have a beach upon which debris collects when formerly they had a clear beach which was free from debris.
Another element of damage was reversal of the drainage, as a result of which where respondents formerly had lawns and gardens the place is now a swampy bog. This constitutes a taking, for which respondents are entitled to recover, of their property within the provision of Art. I, § 16, of the state constitution.
Respondents consulted a contractor and a landscape gardener in the hope that their property might be placed in a condition similar to its condition prior to the depositing of the material by appellant upon their property. It was ascertained that to restore the property it would be necessary to construct a concrete retaining wall, install new water pipe, and fill in the property with approximately five thousand cubic yards of dirt over an area
of 28,575 square feet, at a cost of $12,500. In addition, it would be necessary to put in top soil for a lawn at an estimated cost of $1,100.
Respondent husband testified that in his opinion the value of respondents’ property prior to appellant’s encroachment upon it was $34,500, and that the value of the property at the time of the trial, as a result of the encroachment, was $21,500, or that respondents had been damaged in the amount of $13,000. Three experienced realtors and appraisers, who were familiar with values in the district and with the respondents’ property in general, testified, after taking into consideration that the property was improved with gardens and lawns, that the market value of the property prior to the invasion by appellant was thirty-five thousand dollars and that the depreciation in value resulting from the state’s encroachment upon the property was ten thousand dollars.
One witness testified on behalf of appellant that respondents’ property had not depreciated in value as a result of the encroachment, and that in his opinion the fact that respondents’ property was waterfront did not make it of any additional value. It is manifest why the court gave little weight to the testimony of this witness, as that witness did not take into consideration, as the record discloses, the improvements upon the property or that it had ever been improved or that the overgrowth upon the property was subsequent to the slides.
The testimony of two men who had been in the real estate business twelve years in Olympia is similar to that of the witness just mentioned. One did go so far as to testify that respondents were entitled to recover one thousand dollars, stating there was a nuisance value not to exceed that amount. Those two witnesses apparently were of the view that, if the encroachments did not partially benefit the property, no damage resulted therefrom; and they did not take into consideration that the setting of a house like respondents’ required land of an area in excess of that of the ordinary city lot; and that the invasion of those two tracts immediately adjoining the lot upon which
the residence was located depreciated the value of the entire property, and, in the assessment of damage, the property must be considered as a whole.
The trial court correctly found that the evidence adduced by respondents outweighed that on behalf of appellant on the question of damages sustained by respondents. The trial court correctly refused to adopt the basis upon which appellant’s expert witnesses premised their opinions as to the amount of damages sustained by respondents.
The judgment is affirmed.
Simpson, C. J., Beals, Steinert, Blake, and Grady, JJ., concur.