Jury rejects damage claim against King County for lowering of water levels caused by the Lake Washington Ship Canal in verdict announced on April 4, 1924.

  • By David B. Williams
  • Posted 11/21/2016
  • HistoryLink.org Essay 20201

On April 4, 1924, the jury in the King County Superior Court of Judge James T. Ronald (1855-1950) rules in favor of King County against the Hewitt-Lea Lumber Company. Hewitt-Lea sought $125,000 in damages because the opening of the Lake Washington Ship Canal in 1916 had put the company out of the business by lowering the lake level. Hewitt-Lea's mill had been located up the Mercer Slough about two miles from the eastern shore of Lake Washington. When the lake's water level dropped nine feet, boats could no longer access the mill.

Mercer Slough

Located in Bellevue, where Interstate 90 now crosses east from Mercer Island, Mercer Slough was a several-hundred-acre wetland that extended north for two miles from the shore of Lake Washington. (Slough was a term used commonly in the late nineteenth and early twentieth century to refer to a wetland; at present it refers specifically to riparian habitat.) It had been undeveloped land until 1869, when Aaron Mercer (1824-1903) became the first settler to file a claim on the land surrounding the wetland. Mercer had arrived in Seattle five years earlier. His brother Thomas (who is perhaps best known for naming Lake Union and Lake Washington in 1854) had homestead on the shore of Lake Union.

Aaron chose to go east across Lake Washington from the still-tiny settlement of Seattle to make his claim, on 80.5 acres on the west side of the slough. He soon built a small cabin half a mile from the lake for his family, which eventually totaled 11 children. They did not remain long and moved in 1871 to the Duwamish Valley so the children could be near a school.

Next to settle on Mercer Slough was Civil War veteran Clark M. Sturtevant (1840-1911), who acquired 160 acres as part of his compensation for fighting in the war. Former residents told mid-twentieth century historian Lucile McDonald that Sturtevant had to break seven beaver dams in 1873 when he paddled to the upper end of the slough to reach his property (located between present-day SE 8th Street and NE 8th Street and between 112th Avenue SE and 116th Avenue SE in Bellevue). During the winter he earned money by trapping; in one year he captured 130 mink, four otters, and many muskrats.

Timber Mills on the Slough

In 1894 William Powell (ca. 1835-1924) built a small dam at the upper end of the slough, about two miles from Lake Washington, at what would be about the south end of the Sturtevant property. Also on Powell's property was a small sawmill. Powell used the pond created by his dam to store logs, which he then floated out through the slough and down to Lake Washington. Seven years later, the firm Wilbur and England, owned by Manley Wilbur (1849-1935) and George England (1851-1930), took over timber operations at the upper end of the slough.

At the time, the water in Mercer Slough was deep enough and had a wide enough channel that boats up to 18 feet wide and 50 feet long could help tow log rafts. A raft might be 80 feet long, in four 20-foot sections, and contain logs six feet in diameter. Other boats traveling the slough's channel, including launches, tugs, small steamers, and stern-wheelers, carried freight, hay, and hunting and fishing parties.

Testimony in the Hewitt-Lea case described the channel as "tortuous and narrow" with "roots, snags and logs in the bed" ("Brief of Respondent"). Travel was both easier and more challenging in winter when the water level was at its highest. The deeper water allowed the boats to encounter fewer obstacles but if the water was deep enough, the entire slough could resemble a side bay of the lake and the channel would be hidden.

Another old timer told McDonald, "When I was a boy a friend and I paddled through the cattails, tules, and lily pads and several species of long marsh grass. In some places we had to push the canoe across shallow spots. Other places the water was four or five feet deep and in these spots we found several muskrats homes. Near the north end we found a beaver house ... Hundreds of ducks and geese stopped at Mercer Slough; it was the finest part of Lake Washington" ("Eastside History").

The Wilbur and England mill could saw 20,000 board feet a day. In the short life of the mill about 600,000 to 700,000 feet of cedar, spruce, and Douglas fir from the mill was towed out down the slough. Powell had taken about 100,000 feet more during the time he operated his mill. Then in 1905 the Hewitt-Lea Lumber Company, owned by Henry Hewitt Jr. (1844-1918) and Charles W. Lea (1875-1949), bought out Wilbur and England and increased the mill capacity to 75,000 board feet per day.

A year earlier Wilbur, Hewitt, and Mary M. Gruber had filed a plat for the town of Wilburton, on the hill that rises to the north of the upper end of the slough. Mary M. Gruber was born Mildred Timm (or Tim) and had arrived in Seattle from Wisconsin in the company of Hieronimus (or Hieronymus) Zech. Zech had been a successful businessman and apparently met Timm, 28 years his junior, fallen in love, and spent his fortune on her. Unfortunately, Zech was married with three children at the time. He then moved to Seattle to recoup his money without telling his wife that Timm, now called Gruber, was with him. Zech's wife sent him money to help him out, which Zech and Gruber used to buy real estate. In 1907, Mrs. Zech was awarded $25,000 in a civil suit for fraud that she brought against her husband and Gruber. Curiously, the 1920 census lists Zech, his wife, and Gruber all living together. Gruber (aka Mildred) is listed as "companion."

In addition to platting Wilburton, which would serve as town for its workers, Hewitt-Lea also built a 250-foot wharf for loading wood onto boats. Not all the wood was shipped by water; the company shipped about half its wood via train tracks that ran through Wilburton. (The tracks are still in place in 2016, most famously in the great trestle that runs north-south high above Southeast 8th Street in Bellevue) During the dozen years the company logged Eastside forests, Hewitt-Lea took out 100 million board feet of lumber, 1 million board feet of small cedar logs, and 24,000 to 36,000 pilings.

Suing for Damages

The opening the Lake Washington Ship Canal and Ballard Locks, however, ended the use of the slough for transporting lumber. The canal provided a navigable connection through Seattle between Lake Washington and the salt water of Puget Sound by connecting several formerly separate bodies of water, including Lake Washington, Lake Union, and Salmon Bay. When the canal opened in the late summer of 1916, Lake Washington was lowered by nearly nine feet so that it was at the same level as Lake Union. The lowering of the lake meant that the water in Mercer Slough dropped so low that scows and barges could no longer travel the open channel that had stretched from the lake up to the mill's wharf.

In response, Hewitt-Lea sued King County, which controlled the right of way in the ship canal, for $125,000 in damages. (In 1910, a year before construction on the canal and locks project began, Hewitt-Lea had unsuccessfully sought a restraining order to prevent the construction of the locks and the lowering of the lake.) King County Superior Court Judge J. T. Ronald rejected the case in 1919, ruling that "the lowering of the waters of Mercer slough was caused by King [C]ounty under authority of the state, and by virtue of the state's power to improve the navigability of navigable waters of the state," and that therefore "the state has the power to inflict the injury complained of without compensation" (Hewitt-Lea, 113 Wash. at 434).

Hewitt-Lea then appealed to the Washington State Supreme Court, which overturned the case and remanded it to the lower court. The high court recognized the general rule that when government efforts to improve the navigability of a waterway cause harm to landowners along that waterway, the owners are not entitled to compensation, but noted that that was not the case here, where "the damage was caused, not by the improvement of the navigability of Mercer slough, or even Lake Washington, but by the opening of an artificial water course connecting Lake Washington with tidewater in Puget Sound" (Hewitt-Lea, 113 Wash. at 437). The court continued:

"[T]he word 'improvement' ... conveys the idea of bettering that which theretofore existed, rather than the creating of something entirely new. ... So far as we can gather from the record before us, the construction of the ship canal and the consequent lowering of the waters of Lake Washington has entirely destroyed the navigability of Mercer slough, and cannot but have lessened the navigability of Lake Washington. That the canal connects the lake with tidewater, permitting vessels to enter from the sea, does not add to the navigability of the lake" (Hewitt-Lea, 113 Wash. at 438-39).

Because the canal work was not an improvement of the waters on which the mill was located, the mill owners were entitled to recover if they could show that lowering those waters had caused them damage.

However, back in the lower court, the jury on April 4, 1924, rejected Hewitt-Lea's claim for compensation, holding that "the mill virtually was abandoned, and that there was very little timber remaining in the vicinity of the mill when the lake was lowered" ("Lumber Company Loses ...") . On June 23, 1924, Judge Ronald denied the company's motion for a new trial, relying heavily on the testimony of former Seattle City Engineer Reginald Heber Thomson (1856-1949). The primary basis was that "value of the property ... had terminated as a mill site prior to the lowering of the lake ... and that the availability of the use of plaintiff's property as a mill site was temporary and that it had no permanent value" ("Order").

Curiously, the Barbee Mill, which would later operate on the shore of the lake south of the slough, was profitable until the first decade of the twenty-first century, but it used logs floated into Lake Washington through the ship canal and not from the surrounding landscape. After the loggers moved out, farmers moved in, led by Frederick Winters, who started a wholesale florist business. He initially focused on azaleas but soon turned to King Alfred daffodils and Dutch and Spanish irises.


"Lumber Company Loses $125,000 County Suit," The Seattle Times, April 4, 1924, p. 18; "Lumber Men Would Enjoin Canal Work," Ibid., January 11, 1910, p. 4; "Gets $25,000 for Loss of Her Husband," Ibid., July 3, 1907, p. 1; Hewitt-Lea Lumber v. King County, 113 Wash. 431, 194 P. 377 (1920); "Order," June 23, 1924, Hewitt-Lea Lumber Company v. King County, King County Superior Court No. 123195, King County Clerk's office, Seattle, Washington; "Brief of Respondent," undated, Hewitt-Lea Lumber Company v. King County, Eastside Heritage Center, Bellevue, Washington; Lucile McDonald, "Eastside History," undated manuscript, Eastside Heritage Center.

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