Burton v. Douglas County, 1228--III

• Decision Date: 08 August 1975
• Docket Number: No. 1228--III,1228--III
• Citation: 14 Wn.App. 151,539 P.2d 97
• Parties: Le Roi BURTON, Appellant, v. DOUGLAS COUNTY, Respondent.
• Court: Washington Court of Appeals

Page 151

14 Wn.App. 151

539 P.2d 97

Le Roi BURTON, Appellant, v. DOUGLAS COUNTY, Respondent.

No. 1228--III.

Court of Appeals of Washington, Division 3.

Aug. 8, 1975.

Rehearing Denied Oct. 6, 1975.

Review Denied Dec. 15, 1975.

Ross R. Rakow, Tonkoff, Rakow, Dauber & Shaw, Yakima, for appellant.

Larry Carlson, Carlson & Drewelow, Inc., Wenatchee, for respondent.

McINTURFF, Chief Judge.

Plaintiff (Burton) appeals from a judgment entered on a jury verdict dismissing his action against the defendant (Douglas County). Burton seeks to recover for damage to his home caused by a road that concentrated and deposited surface waters in a volume on his property.

On June 9, 1972, an extremely heavy rainstorm occurred in the Wenatchee area. Burton's home was located adjacent to the Wenatche Golf & Country Club, on the West side of Country Club Drive (see diagram).

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Country Club Drive

had a slight crown in the center of the road that acted to collect and funnel surface waters draining in the watershed from the east to the west. Burton built his home at the low point in a natural drainage area of approximately 19 acres, east of Country Club Drive. On the day of the rainstorm--the severity of which would occur approximately every 25 years--the surface waters, draining from east to west, were funneled onto the Burton's property. Mud and water severely damaged his house, primarily the basement and its contents.

When Burton built his home in 1959 he installed six-inch drains on his property to drain away water which, particularly during the spring thaw, would be collected by the road and accumulate in front of his house. When sufficient water had collected at a point across from his home, the water would flow across the road and enter onto Burton's property. Until 1972 normal rainfall had created no problem, but prior to this time Mr. Burton had notified the Douglas County Commissioners that County Club Drive was collecting runoff water and depositing it on his property. The County Commissioners did not correct the drainage problem.

The primary issues to be answered are: (1) does the road constitute an artificial drain or channel; and (2) if so, is Douglas County liable whether or not the rainstorm constituted an act of God? We answer both in the affirmative.

Burton contends that Douglas County--due to the presence of County Club Drive--artificially channeled surface waters and deposited them on his property to his damage, citing Wilber Dev. Corp. v. Rowland Constr. Inc., 83 Wash.2d 871, 523 P.2d 186 (1974). Douglas County contends it did not by 'artificial means' convey outlaw waters and deposit them onto Burton's property. Douglas County also urges that a municipality is not liable for injuries caused to private property as a result of the collection of surface waters on its streets, citing Wood v. Tacoma, 66 Wash. 266, 119 P. 859 (1911). Douglas County emphasizes that it was not negligent in the performance of its road work; thus, it cannot be held liable for the damage to Burton's property.

Ordinarily, a municipal corporation is not liable for consequential damages caused by the increased flow of surface water resulting from the initial grading and improvement of its streets. ¹ Under this rule a municipality will not be held liable for damage to private property cuased by surface waters due to the presence of its streets. However, it may not collect surface water by artificial means and channel and deposit it on private property causing the owner substantial injury unless the municipality compensates the owner. ²

A natural drain is defined as one formed by nature in which surface waters drain from higher to lower elevations naturally. ³ Country Club Drive acted as an artificial drain because the water draining from the east to the west, in the absence of the crown in the road, would have continued to run across the road instead of being channeled by it. Liability arises if surface water is artificially collected and discharged on surrounding properties in a manner different from the natural flow of water onto those properties. ⁴ Country Club Drive acted as an artificial drain, collecting, channeling, and depositing surface waters onto Burton's property to his damage.

Next we consider if the defendant is liable whether or not the rainstorm constituted an act of God. The general rule regarding liability for artificially collecting the discharging surface water in a manner different from the natural flow concurring with an act of God was stated in Tope v. King County, 189 Wash. 463, 471--72, 65 P.2d 1283, 1287 (1937):

When two causes combine to produce an injury, both of which are, in their nature, proximate and contributory to the injury, one being a culpable negligent act of the defendant, and the other being an act of God for which neither party is responsible, then the defendant is liable for such loss as is caused by his own act concurring with the act of God, provided the loss would not have been sustained by plaintiff but for such negligence of the defendant. ⁵

Whether or not the road was negligently constructed is immaterial. ⁶ The proximate cause of the damage was the initial wrong that occurred because Douglas County's road acted as a channel to collect and divert water from its natural course and ultimately discharge surface water upon Burton's property to his injury. ⁷ There was no dispute among the experts who testified that the road acted to channel the surface waters during the storm. In fact, one of the Douglas County witnesses, Mr. Englehorn, the Douglas County engineer, described the condition succinctly:

This is the so-called drainage area from which water would come down to the road...