Borden v. City of Olympia, 27029-3-II.

• Decision Date: 13 September 2002
• Docket Number: No. 27029-3-II.,27029-3-II.
• Citation: 113 Wash.App. 359,53 P.3d 1020
• Court: Washington Court of Appeals
• Parties: Henry J. & Loretta M. BORDEN, Appellants, v. CITY OF OLYMPIA, Respondent.

53 P.3d 1020

113 Wash.App. 359

Henry J. & Loretta M. BORDEN, Appellants, v. CITY OF OLYMPIA, Respondent.

No. 27029-3-II.

Court of Appeals of Washington, Division 2.

September 13, 2002.

Robert Hundley Raymond, Olympia, WA, for Appellant.

William Dale Kamerrer, Law Lyman Daniel Kamerrer, Olympia, WA, for Respondent.

MORGAN, J.

Henry and Loretta Borden sued the City of Olympia because their property flooded. They alleged inverse condemnation, trespass, nuisance, negligence, and waste under RCW 4.24.630. The trial court granted summary judgment to the City. Taking the facts and inferences in the light most favorable to the Bordens,¹ we reverse in part and affirm in part.

In 1980, the Bordens bought four acres, the east half of which was improved with a house and detached shop. They have lived in the house ever since.

In 1991, the Bordens short platted their four acres by drawing a north-south line from approximately the midpoint of their northern boundary to approximately the midpoint of their southern boundary. The result was a two-acre parcel, Lot 1, lying west of another two-acre parcel, Lot 2. In 1995, they sold Lot 1, which is currently owned by people named Comstock.

The Bordens' original four acres lies in a natural drainage basin. The basin's low point is near the center of its northern portion. Surrounding this low point is a wetland, known locally as the Royal Gardens Wetland. The wetland is irregularly shaped and "closed" in the sense that it drains only by seepage into the ground. The distance from the wetland's eastern boundary to the Bordens' house is about 595 feet.

The land east of the wetland rises from west to east. The wetland's eastern boundary is about 171 feet above Mean Sea Level (MSL), and Lot 1's western boundary is about 173 feet above MSL. The floor of Bordens' basement is about 175 feet above MSL, and the first floor of Bordens' house is about 182 feet above MSL. Stormwater flows from east to west when present on the Bordens' property.

In 1995, private developers built a new stormwater drainage project on privately owned land. The project collected water from three new subdivisions to the south, brought it north, and discharged it into the Royal Gardens Wetland. The result, according to evidence that favors the Bordens, was to significantly increase the volume of water being drained into the Royal Gardens Wetlands.²

The City approved permits for the new project. It also helped design and pay for the new project. As the Supervisor of the City's Water Resource Program stated in a 1993 memorandum:

The Water Resources Program, as part of the City's Stormwater Utility, is responsible for solving existing flooding problems as well as preventing future problem areas resulting from development. In this role, Program staff have actively participated for nearly two years in the ongoing planning and problem-solving process in the Rossmoor Briarwood subbasin in southeast Olympia. Program staff have provided considerable hydrologic modeling and technical review, especially during the last six months. Nearly all of this work was in excess of our typical "consultant" role.[³]

The City initially proposed to pay about one-third ($47,433) of the project's estimated cost ($145,000),⁴ but later said it would pay one-half of the project's actual cost, not exceeding $72,500.⁵

The project was completed in November 1995, and the Bordens experienced flooding in February 1996. The flooding recurred during the winters of 1996-97, 1997-98, and 1998-99. The basement of their house flooded four times, and their shop flooded three times. Their yard "developed standing ponds some feet in depth," and some "decorative cedar trees approximately 10-12 years old" died due to "soil saturation."⁶

Meanwhile, the Comstocks' lower-lying land was also flooding. The City responded by

installing a very large pump and pipeline system on the Comstock property. This pump ran every day, and pumped hundreds of thousands of gallons of water each day from the Royal Gardens Wetlands north along Allen Road, thence into the stormwater system for the Marie's Vineyard development. This lowered the water sufficiently to abate the surface water flooding on much, but not all, of the Comstock property but those waters remained at substantially higher elevations than historical water levels.[⁷]

In the winter of 1999-2000, the City completed "a municipal drainage facility that drew waters out from the Royal Gardens Wetlands and conveyed them north ... into the headwaters of Woodland Creek."⁸ The Bordens' flooding then abated.

In 1999, the Bordens sued the City. They alleged negligence, nuisance, inverse condemnation, trespass, and statutory waste. The City denied liability, based in part on the common enemy doctrine.

In 2000, the City filed a motion for summary judgment, and the Bordens responded with a cross-motion of their own. The Bordens supported their motion with a declaration from Henry Borden, who is himself a practicing engineer, in which he described the effects of the discharge of additional water into the wetlands. He stated:

The result of these new discharges into the wetlands was to supercharge the wetlands, and to exceed the capacity of the soils to accept them and convey them away, with the immediate result of raising the water table on and under my property and surrounding properties. This higher water table has two results. First, where it is sufficiently high it causes damage to my basement and to my trees and land by saturating the soil. Second, it acts as an impervious surface preventing water that would percolate into the soil in normal conditions to pond above the groundwater table, further raising the water table elevation. Some of these higher waters leached onto the surface of the ground, some saturated my soils and prevented the normal infiltration and percolation my land previously accomplished, some entered my basement.[⁹]

On January 22, 2001, the trial court ruled that the record lacked sufficient evidence to support the Bordens' claims. Accordingly, it granted the City's motion and denied the Bordens' motion. The Bordens then filed this appeal.

Although the Bordens claim that the 1995 drainage system brought additional water from remote locations and discharged it into the Royal Gardens Wetlands, they do not claim that the additional water physically invaded their property as surface water. Rather, they claim that the additional water saturated ("supercharged") the ground and raised the water table, thereby causing the ground not to accept stormwater that otherwise would have drained to the west. In short, they claim that the City was a user of land downhill from theirs; that the City obstructed the flow of surface and ground water; and that the City should be held liable for doing that.¹⁰

Given the nature of this claim, the main question here concerns Washington's version of the common enemy rule. We discuss that rule in Section I, and the Bordens' specific causes of action in Section II.

I.

In Cass v. Dicks, an 1896 case, the Washington Supreme Court adopted what is generally referred to as the common enemy rule. The court said:

If one in the lawful exercise of his right to control, manage or improve his own land, finds it necessary to protect it from surface water flowing from higher land, he may do so, and if damage thereby results to another, it is damnum absque injuria.[¹¹]

In Wilkening v. State, a 1959 case, the Washington Supreme Court extended this rule from surface water to ground water. The plaintiff owned land with a high natural embankment. The State lawfully constructed improvements at the bottom of the embankment. The improvements interfered with the embankment's drainage, thereby raising the water table and weakening the toe of the slope. Affirming judgment for the State, the Supreme Court stated:

Since a landowner, in the lawful exercise of his right to improve his own land, may protect it from surface waters without liability, no reason occurs to us why he should be liable for the result of lawful acts, upon his own land, which impede the flow of underground percolating waters. If damages result to another, it is damnum absque injuria.[¹²]

Both before and after Wilkening, the Washington Supreme Court recognized at least two exceptions to the common enemy doctrine. One, not pertinent here, provides that even though a downhill landowner can lawfully repel surface water from his or land, he or she cannot lawfully do so by blocking a natural watercourse or natural drainway.¹³ Another, which we hereafter call the "channel-and-discharge" exception, provides that an uphill landowner cannot lawfully collect water in an artificial channel, then discharge it "upon adjoining lands in quantities greater than or in a manner different from the natural flow thereof."¹⁴

In Currens v. Sleek, a 1999 case, the Washington Supreme Court recognized a third "exception," which it referred to as a "due care exception[.]"¹⁵ This "exception," the court said, provides that a landowner is not liable for altering the flow of surface water-so long as he or she acts "in good faith and with such care as to avoid unnecessary damage to the property of adjacent owners."¹⁶ This "exception," the court said, does not require "inquiry into the utility of the particular project[,]" although it does require inquiry into "whether the landowner has exercised due care in improving his or her land, i.e., whether the method employed by the landowner minimized any unnecessary impacts upon adjacent land."¹⁷ "[I]n practical terms," the court said, this means "that landowners may improve their land with impunity (subject to local land use and permitting requirements) and are not liable for damage caused by the change in the flow of surface water onto their neighbors' land, so long as the landowners act in good faith and do not damage adjacent property in excess of that called for by the particular project."¹⁸ In...