City of Benton City v. Adrian

• Decision Date: 14 January 1988
• Docket Number: No. 8125-7-III,8125-7-III
• Citation: 50 Wn.App. 330,748 P.2d 679
• Parties: CITY OF BENTON CITY, Respondent, v. Gerald D. ADRIAN and Joyce Adrian, husband and wife; W.R. Smith Family, Inc.; Franklin R. Snyder and Kathleen Snyder, husband and wife, Appellants. KIONA IRRIGATION DISTRICT, Respondent and Cross-Appellant, v. CITY OF BENTON CITY; Gerald D. Adrian and Joyce Adrian, husband and wife; W.R. Smith Family, Inc.; Franklin R. Snyder and Kathleen Snyder, husband and wife, Respondents.
• Court: Washington Court of Appeals

Page 330

50 Wn.App. 330

748 P.2d 679

CITY OF BENTON CITY, Respondent, v. Gerald D. ADRIAN and Joyce Adrian, husband and wife; W.R.

Smith Family, Inc.; Franklin R. Snyder and

Kathleen Snyder, husband and wife, Appellants.

KIONA IRRIGATION DISTRICT, Respondent and Cross-Appellant, v. CITY OF BENTON CITY; Gerald D. Adrian and Joyce Adrian,

husband and wife; W.R. Smith Family, Inc.;

Franklin R. Snyder and Kathleen Snyder,

husband and wife, Respondents.

No. 8125-7-III.

Court of Appeals of Washington Division 3, Panel Two.

Jan. 14, 1988.

Reconsideration Granted Feb. 8, 1988.

Patrick Walker, Cowan, Walker, Jonson & Moore, Richland, for appellants.

Dwight Halstead, Prosser, Leland Kerr, Kennewick, for respondent.

THOMPSON, Acting Chief Judge.

To prevent damage to the plaintiffs' property, a permanent injunction was issued forbidding the defendants from discharging excess irrigation water from their orchards past a certain point. Additionally, Kiona Irrigation District's claim for damages was dismissed. We reverse in part and remand to the trial court.

Gerald and Joyce Adrian, the W.R. Smith Family, Inc., and Franklin and Kathleen Snyder (the orchard owners) own farm property located in Benton County northwest of the City of Benton City. All three properties, planted in fruit trees, employ the "rill" method of irrigation. This method brings water onto the land at its high points, and allows it to flow through the orchard in "rills" or furrows, with the excess irrigation water running off at the land's low points. Excess runoff is an integral part of rill irrigating. In this case, the excess water, called "tail water", runs off the orchard owners' property in an area bordering Horne Road, a county road adjacent to the City of Benton City. There, the water collects in depressions and a ditch along the road bank, and flows to county storm drainage culverts along Horne Road.

When the water exits the culverts, it flows onto private undeveloped land owned by Otto Lorz. ¹ The water forms a pond just west of 12th Street on the Lorz property. Evidence suggests in years past the water had occasionally flowed into a natural ravine or draw down slope in an easterly direction.

In 1978, property located within the City, east of 12th Street and the Lorz land, was developed into the Boland Addition. A storm sewer drain was installed which collected water from the west side, at 12th Street, and channeled the water to the eastern edge of the addition, somewhat to the south from where it originally would have drained, but in the same draw or natural drainway.

Prior to 1984, there were no apparent problems. However, after that time the irrigation water, collecting on the Lorz property, entered the City's new storm sewer drainage and flowed out just west of 11th Street. It then continued down the undeveloped Karen Street right of way through a depression in the Clark property between 11th Street and 9th Street, and fouled a well serving a private residence.

Also, during the summer of 1984, the City became aware the tail water was crossing 9th Street and threatening the City well. The City took action to protect its well, and wrote letters to several farmers, including these orchard owners. In 1984, the water had not yet reached the Kiona Irrigation District's (KID) canal. The water flow ceased at the end of the 1984 irrigation season.

The problem reoccurred during the summer of 1985. The City investigated and determined the leftover tail water coming from the defendants' fields was the source of the problem. The City built a dike between 11th and 9th Streets to prevent damage to its utility manhole. Erosion was becoming more pronounced, and the City sanitary water line was exposed. Also, water flowed into the KID canal, washing silt and sand into it. KID had to hire a backhoe and operator to remove the silt and prevent a potential breach of the dirt bank and flooding of down-slope property.

In 1986, the flooding problem again developed, filling a ditch dug by the City on the west side of 9th Street to prevent a washout of the street. The water then flowed past the City's main sanitary water well, and finally cut away the banks of the KID canal, allowing large quantities of silt and sand to enter into it. KID again had to hire a backhoe and clean out the canal, incurring substantial costs. In May 1986, KID filed a damage claim with the City of Benton City for approximately $2,100. The City refused to pay, denying liability.

Thereafter, KID and Benton City started this action, seeking injunctive relief to prevent further flow of the damaging tail water off the orchard owners' property. Additionally, KID sought damages from both the orchard owners and the City for the costs to repair and dredge its canal. The trial court, after hearing testimony and reviewing numerous exhibits, granted a permanent and perpetual injunction restraining the orchard owners from discharging irrigation water from their property into or upon the City's property, beginning at the 12th Street storm drain. Also, it ordered that if any water did reach the City's property or the KID canal, another injunction would immediately issue enjoining discharge beyond the orchard owners' property line above Horne Road. The court dismissed the claim for damages and KID's claim against the City of Benton City. The orchard owners appeal the injunction, and KID appeals the dismissal of its claim for damages.

First, the orchard owners contend RCW 7.48.300 prevents an injunction in this case. RCW 7.48.305 provides:

Agricultural activities--Presumed reasonable and not a nuisance--Exception. Notwithstanding any other provision of this chapter, agricultural activities conducted on farmland, if consistent with good agricultural practices and established prior to surrounding nonagricultural activities, are presumed to be reasonable and do not constitute a nuisance unless the activity has a substantial adverse effect on the public health and safety.

If that agricultural activity is undertaken in conformity with federal, state, and local laws and regulations, it is presumed to be good agricultural practice and not adversely affecting the public health and safety.

The history of this provision does not indicate the Legislature had in mind the kind of off-site trespass involved in this case. See Senate Journal, 46th Legislature (1979), at 514-15. The statute concerns "activities conducted on farmland" being presumed reasonable and not a nuisance if "consistent with good agricultural practices". (Italics ours.) However, assuming rill irrigation is reasonable, flooding adjoining property is not what was intended by this nuisance exemption. Sounds, smells, dust, etc., which might interfere with use and enjoyment of life and property were mentioned in the legislative history; interference with possession of property, by actual destruction through escaping water, was not, and is categorically different. See generally Bradley v. American Smelting & Ref. Co., 104 Wash.2d 677, 709 P.2d 782 (1985). Therefore, the statute does not bar injunctive relief in this case.

Next, the orchard owners contend they have a common law right to use the "natural drainway" adjoining their property to discharge irrigation waste water. The court found the irrigation waste water was artificially introduced under the control of the defendants, and was not naturally occurring surface water which would have been subject to a limited right of discharge into natural drainways, Trigg v. Timmerman, 90 Wash. 678, 156 P. 846 (1916); Patterson v. Bellevue, 37 Wash.App. 535, 681 P.2d 266 (1984). The orchard owners do not dispute this finding, but argue the characterization of the water should make no difference, although conceding no case has so decided. They argue the rule with regard to artificially collected surface water is that it may be discharged upon adjoining properties as long as it is not in quantities greater than, or in a manner different from, the natural flow of such water. Trigg, 90 Wash. at 681-82, 156 P. 846; Wilber Dev. Corp. v. Les Rowland Constr., Inc., 83 Wash.2d 871, 523 P.2d 186 (1974); King Cy. v. Boeing Co., 62 Wash.2d 545, 550-51, 384 P.2d 122 (1963); Burton v. Douglas Cy., 14 Wash.App. 151, 154, 539 P.2d 97 (1975). Because their irrigation water has been deposited in a natural drainway for 50 years or more, and has not been increased in volume, they contend it should fall within this rule.

Washington has adopted a rule of negligence with regard to damage resulting from the maintenance, construction, or operation of irrigation works and other "artificially collected" bodies of water. Holland v. Columbia Irrigation Dist., 75 Wash.2d 302, 305, 450 P.2d 488 (1969); Robillard v. Selah-Moxee Irrigation Dist., 54 Wash.2d 582, 343 P.2d 565 (1959). Nevertheless, there is no question of negligence here; it is undisputed that disposal of the excess water via the Horne Road culverts was intentional, not negligent. Hence, the general rule is:

One who intentionally discharges water which has been brought or accumulated upon his premises by artificial means may be held liable for injury thereby caused to others.

78 Am.Jur.2d, Waters § 211, at 658 (1975). The distinctions between natural surface water, the "common enemy", and artificially introduced water, such as irrigation water, have not been abandoned. Thus, the cases the orchard owners cite do not apply, and no other authority can be found for their argument. The court did not err in concluding there is no common law right to discharge artificially collected water in the same manner as naturally occurring surface water.

Third, it is contended the long term practice of routing excess irrigation water into the "natural drainway" gave rise to a prescriptive right. The orchard owners are generally correct in asserting a right to discharge excess irrigation water onto the land of another may be acquired by prescription. Brand v. Lienkaemper...