Currens v. Sleek

• Decision Date: 09 September 1999
• Docket Number: No. 66830-2.,66830-2.
• Citation: 138 Wash.2d 858,983 P.2d 626
• Parties: Cal CURRENS and Elsa M. Currens, Plaintiffs-Appellants, v. Irene SLEEK, Dennis Stephenson, and Jane Doe Stephenson, individually and as a marital community, Dennis Stephenson Logging, a solo proprietorship and Gary and Barbara Hanson, individually and as a marital community, Defendants-Respondents.
• Court: Washington Supreme Court

983 P.2d 626

138 Wash.2d 858

Cal CURRENS and Elsa M. Currens, Plaintiffs-Appellants, v. Irene SLEEK, Dennis Stephenson, and Jane Doe Stephenson, individually and as a marital community, Dennis Stephenson Logging, a solo proprietorship and Gary and Barbara Hanson, individually and as a marital community, Defendants-Respondents.

No. 66830-2.

Supreme Court of Washington, En Banc.

Argued February 10, 1999.

Decided September 9, 1999.

Bricklin & Gendler, Ms. Jennifer A. Dold, Seattle, amicus curiae on behalf of Washington Environmental Council.

Mr. John S. Karpinski, Vancouver, for Petitioner.

Mr. Douglas Foley, Vancouver, Mr R. Daniel Lindahl, Ms. Ruth Rocker, Portland, for Respondent.

DURHAM, J.

Petitioners Cal and Elsa Currens (the Currenses) seek review of an unpublished Court of Appeals decision affirming the summary judgment dismissal of their complaint against Respondents Irene Sleek (Sleek) and Dennis Stephenson Logging. At issue is whether liability may arise for property damage caused by an increased flow of surface water onto the Currenses' property after Sleek clear-cut and graded her land. We hold that the common enemy doctrine shields a landowner from liability for surface water flooding only if the landowner exercises due care in preventing unnecessary injury to neighboring properties. Because there is a genuine issue of material fact regarding whether Sleek exercised due care, we reverse summary judgment and reinstate the Currenses' claim.

I

The Currenses and Irene Sleek own neighboring property in Clark County. Water from a portion of the Sleek property naturally seeps into a forested, low-lying sink area on the Currenses' property. In 1993, Sleek decided to clear-cut her property in order to develop four home sites. As required by the State Environmental Policy Act of 1971 (SEPA), chapter 43.21C RCW, Sleek submitted an Environmental Checklist to the Department of Natural Resources (DNR). The checklist indicated that Sleek would plant trees to enhance vegetation on the property and would install dry wells to mitigate storm water impacts.

Dennis Stephenson Logging clear-cut and graded Sleek's property in 1994. However, no action was taken to revegetate the land or to reduce the flow of surface water over the sites. No drywells were ever installed.

The following year, the natural sink area in the Currenses' property flooded, causing 11 trees to fall. The Currenses removed an additional 20 trees in order to ensure the safety of their home. A drainage engineer reported that "the logging on the Sleek property substantially increased the volume and peak flow rates of stormwater onto the Currenses' property, at the bottom of the natural drainage way and in the natural sink." Clerk's Papers at 92. He estimated this increase to be 3 times the natural volume that would accumulate during a large storm and 12 times the normal volume caused by a standard rainstorm. The engineer then concluded that the trees fell due to this increased runoff. The Currenses' tree expert and contractor supported this conclusion.

The Currenses filed suit against Sleek in April 1995. The trial court granted summary judgment dismissal on the grounds that Sleek was shielded from liability under the common enemy doctrine. The Court of Appeals affirmed. The Currenses petitioned this court for review, arguing that Sleek was liable because her actions were unreasonable and urging the court to reject the common enemy doctrine. The Washington Environmental Council has submitted an amicus brief.

II

The issues in this appeal are governed by the common enemy doctrine, which has directed the law of surface water in Washington since 1896. Cass v. Dicks, 14 Wash. 75, 44 P. 113 (1896).¹ Surface water is "vagrant or diffused [water] produced by rain, melting snow, or springs." King County. v. Boeing Co., 62 Wash.2d 545, 550, 384 P.2d 122 (1963). The Currenses contend that Sleek is liable for the damage brought about when the grading and construction on Sleek's property caused surface water to flow off of the property and to collect in a low point on the Currenses' land.

In its strictest form, the common enemy doctrine allows landowners to dispose of unwanted surface water in any way they see fit, without liability for resulting damage to one's neighbor. The idea is that "surface water ... is regarded as an outlaw and a common enemy against which anyone may defend himself, even though by so doing injury may result to others." Cass, 14 Wash. at 78, 44 P. 113. Washington still adheres to the general common enemy rule that a landowner may develop his or her land without regard for the drainage consequences to other landowners. However, because a strict application of this rule is widely regarded as inequitable, this court has adopted several exceptions to the common enemy doctrine over the years.

The first exception provides that, although landowners may block the flow of diffuse surface water onto their land, they may not inhibit the flow of a watercourse or natural drainway. Island County v. Mackie, 36 Wash.App. 385, 388, 675 P.2d 607 (1984). Under this exception, a landowner who dams up a stream, gully, or drainway will not be shielded from liability under the common enemy doctrine. A natural drainway must be kept open to carry water into streams and lakes, and a lower proprietor cannot obstruct surface water when it is running in a natural drainage channel or depression. 78 Am. Jur.2d Waters § 134 (1975).

An additional exception prevents landowners from collecting water and channeling it onto their neighbors' land. Wilber Dev. Corp. v. Les Rowland Constr. Inc., 83 Wash.2d 871, 875, 523 P.2d 186 (1974) ("Surface waters may not be artificially collected and discharged upon adjoining lands in quantities greater than or in a manner different from the natural flow thereof.") (overruled on other grounds by Phillips v. King County, 136 Wash.2d 946, 968 P.2d 871 (1998)). This rule prohibits a landowner from creating an unnatural conduit, but allows him or her to direct diffuse surface waters into pre-existing natural waterways and drainways. Laurelon Terrace v. City of Seattle, 40 Wash.2d 883, 892, 246 P.2d 1113 (1952) ("[T]he flow of surface water along natural drains may be hastened or incidentally increased by artificial means, so long as the water is not ultimately diverted from its natural flow onto the property of another."); Trigg v. Timmerman, 90 Wash. 678, 681-82, 156 P. 846 (1916) ("[T]he flow of surface water along such depressions or drain ways may be hastened and incidentally increased by artificial means so long as the water is not diverted from its natural flow.").

Read in conjunction with the above exceptions, the common enemy doctrine in Washington allows landowners to alter the flow of surface water to the detriment of their neighbors, so long as they do not block a watercourse or natural drainway, nor collect and discharge water onto their neighbors' land in quantities greater than, or in a manner different from, its natural flow. These exceptions to the common enemy doctrine are not unique to Washington, but have been embraced by nearly every jurisdiction where the common enemy doctrine governs drainage liability. See Stanley V. Kinyon & Robert C. McClure, Interferences With Surface Waters, 24 Minn. L.Rev. 891, 916-17 (1940); Frank E. Maloney & Sheldon J. Plager, Diffused Surface Water: Scourge or Bounty?, 8 Nat. Resources J. 72 (1968); Robert E. Beck, et al., The Law of Drainage, in 5 WATERS AND WATER RIGHTS § 450.2 (Robert Emmet Clark ed., 1972 & Supp.1978).

At the heart of this appeal lies the parties' dispute over whether, and to what extent, Washington courts should also consider the reasonableness of a landowner's actions in determining liability for damage caused by excess surface water. Sleek argues that the common enemy doctrine in Washington does not allow a court to consider the reasonableness of a landowner's actions in determining liability. The Currenses assert that Washington has already recognized that the common enemy doctrine shields only reasonable conduct; a landowner who acts unreasonably may be liable for damages caused by surface water flooding.

Most jurisdictions where the common enemy doctrine has been adopted as the basic rule have modified the doctrine by importing into it qualifications based upon concepts of reasonable use or negligence. 5 Beck, supra, § 451.2(C) (1972) ("In at least fifteen jurisdictions there is language in the opinions suggesting that a landowner must exercise `due care'....") Under this approach, landowners are free to alter the flow of surface water, subject to the exception that they must exercise their rights in good faith and with such care as to avoid unnecessary damage to the property of adjacent owners. See, e.g., Young v. Moore, 241 Mo. App. 436, 236 S.W.2d 740, 744 (1951); Nichol v. Yocum, 173 Neb. 298, 113 N.W.2d 195, 199 (1962); Ballard v. Ace Wrecking Co., 289 A.2d 888, 889-90 (D.C.1971). This due care exception thus serves to cushion the otherwise harsh allocation of rights under the common enemy doctrine. Although it does not affect a landowner's ability to alter the flow of surface water, it does require avoidance of unnecessary infringement upon a neighbor's free enjoyment of his or her property. Reutner v. Vouga, 367 S.W.2d 34, 41 (Mo.Ct.App.1963). What this means in practical terms is 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.

Washington has never explicitly adopted a due care exception to its common enemy doctrine, but language in past cases indicates that landowner negligence has been a relevant factor in our decisions. In Wood v. City...