Dickgieser v. State

• Decision Date: 27 January 2005
• Docket Number: No. 74619-2.,74619-2.
• Citation: 153 Wash.2d 530,105 P.3d 26
• Court: Washington Supreme Court
• Parties: James K. DICKGIESER, a single man; Milo A. Dickgieser and Joan Dickgieser, husband and wife; and Sherrie M. Shold, a married woman; Petitioner, v. STATE of Washington, Respondent.

105 P.3d 26

153 Wash.2d 530

James K. DICKGIESER, a single man; Milo A. Dickgieser and Joan Dickgieser, husband and wife; and Sherrie M. Shold, a married woman; Petitioner, v. STATE of Washington, Respondent.

No. 74619-2.

Supreme Court of Washington, En Banc.

January 27, 2005.

Jay Allan Goldstein, Olympia, for Petitioner.

Mark Conlin Jobson, Olympia, Respondent.

Andrew C Cook, Olympia, for Amicus Curiae Building Industry Ass'n of Wash.

John Maurice Groen, Diana M Kirchheim, Groen Stephens & Klinge LLP, Bellevue, for Amicus Curiae Pacific Legal Foundation.

MADSEN, J.

This case involves an inverse condemnation action by James, Milo and Joan Dickgieser (the Dickgiesers) against the State of Washington for damage to the Dickgiesers' property allegedly caused when the Department of Natural Resources (Department) logged or allowed logging on state forest lands located adjacent to the Dickgiesers' land. The trial court granted summary judgment in favor of the Department, holding the Dickgiesers had failed to establish the "public use" element of their inverse condemnation claim. The Court of Appeals affirmed on the basis that the Department's logging of its land was a "public benefit" not a "public use." We reverse the Court of Appeals and remand to the trial court for further proceedings.

FACTS

The Dickgiesers own approximately 12 acres in Jefferson County, adjacent to state forest lands managed by the Department. A stream runs downhill through the Department's upland property and then through the Dickgiesers' property.

When the Dickgiesers learned that the Department was planning to log its land, the Dickgiesers expressed their concerns to the Department that the logging would cause the stream to flood and cause damage to their property. To allay these concerns and to prevent future problems, the Department agreed to construct safeguards¹ to the stream bed on the Dickgiesers' property in exchange for an easement across the Dickgiesers' property to allow better access to the Department's upland parcel.² The agreement required the Dickgiesers to maintain the stream bed improvements, including the removal of deposited sediments and gravel as needed. Although the Department did construct some safeguards in and around the stream on the Dickgiesers' property, the Dickgiesers allege that the Department did not do all it promised and that the work was inadequate and incomplete.

During 1996, the Department logged or allowed logging on its property. During the winter following the logging, the stream on the Dickgiesers' property overflowed its banks and damaged three homes on their property, the septic system, and the domestic water supply.³ The Dickgiesers claim that since the logging they have experienced flooding every winter and spring. The Dickgiesers' experts predict repeated, permanent, and chronic flooding of their property as a result of the logging.

The Dickgiesers sued the Department for negligence, nuisance, waste, and inverse condemnation. However, because the statute of limitations had run on the negligence and nuisance claims the parties stipulated to the dismissal of those claims. The trial court dismissed the Dickgiesers' waste claim because it was time barred and, alternatively, because the pleadings failed to state a claim for which relief could be granted. As to the inverse condemnation claim, the trial court observed that the Dickgiesers' submissions raised "issues of fact regarding whether or not there's permanent or continuing damage and whether or not such would amount to a constitutional taking and whether there are issues of fact as to whether the State would have the defense provided by the common enemy, outlaw surface water doctrines and so on." Clerk's Papers (CP) at 178. However, the court granted summary judgment to the Department, holding that the Department's logging activity was not a public use.

The Dickgiesers appealed the dismissal of their inverse condemnation claim. Dickgieser v. State, 118 Wash.App. 442, 443, 76 P.3d 288, 289 (2003). Relying on this court's analysis in Manufactured Housing Communities of Washington v. State, 142 Wash.2d 347, 13 P.3d 183 (2000), the Court of Appeals concluded the Department's logging of its land provided a "public benefit," but was not a "`public use.'" Dickgieser, 118 Wash.App. at 447, 76 P.3d 288. The court affirmed the summary judgment, holding the Dickgiesers failed to establish the "public use" element of its inverse condemnation claim as a matter of law. Id. at 448, 76 P.3d 288. The Dickgiesers petitioned for discretionary review. The Building Industry Association of Washington, the Pacific Legal Foundation, and the Fitzpatrick Family have filed amicus briefs.

ANALYSIS

Washington's constitution provides that "[n]o private property shall be taken or damaged for public or private use without just compensation having been first made." Const. art. I, § 16. The term "inverse condemnation" is used to describe an action alleging a governmental "taking" or "damaging" that is brought to recover the value of property which has been appropriated in fact, but with no formal exercise of the power of eminent domain. Phillips v. King County, 136 Wash.2d 946, 957, 968 P.2d 871, 876 (1998) (quoting Lambier v. City of Kennewick, 56 Wash.App. 275, 279, 783 P.2d 596 (1989)); Granite Beach Holdings, L.L.C. v. Dep't of Natural Resources, 103 Wash.App. 186, 205, 11 P.3d 847 (2000).

The elements required to establish inverse condemnation are: (1) a taking or damaging (2) of private property (3) for public use (4) without just compensation being paid (5) by a governmental entity that has not instituted formal proceedings. Phillips, 136 Wash.2d at 957, 968 P.2d 871. The taking or damaging of property to the extent that it is reasonably necessary for the maintenance and operation of other property devoted to a public use is a taking or damaging for a public use and subject to the provisions of article I, section 16, of the Washington State Constitution. Ackerman v. Port of Seattle, 55 Wash.2d 400, 413, 348 P.2d 664 (1960), overruled on other grounds in Highline School Dist. No. 401, King County v. Port of Seattle, 87 Wash.2d 6, 548 P.2d 1085 (1976)

; Boitano v. Snohomish County, 11 Wash.2d 664, 668, 120 P.2d 490 (1941); Decker v. State, 188 Wash. 222, 227, 62 P.2d 35 (1936). In this case the trial court granted summary judgment to the Department because it found the Department's logging activities did not constitute a public use.

This court reviews a grant of summary judgment de novo, viewing the facts in the light most favorable to the nonmoving party, here, the Dickgiesers. Int'l Bhd. of Elec. Workers, Local Union No. 46 v. Trig Elec. Constr. Co., 142 Wash.2d 431, 434-35, 13 P.3d 622 (2000); Folsom v. Burger King, 135 Wash.2d 658, 663, 958 P.2d 301 (1998). Summary judgment is proper where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. CR 56(c).

The "question whether the contemplated use be really public shall be a judicial question." Const. art I, § 16; Miller v. City of Tacoma, 61 Wash.2d 374, 384, 378 P.2d 464, 470 (1963). Although the legislature may declare that a particular use of property is a "public use," that determination is not dispositive. Hallauer v. Spectrum Props. Inc., 143 Wash.2d 126, 139, 18 P.3d 540 (2001). The "words `public use' are neither abstractly nor historically capable of complete definition. The words must be applied to the facts of each case in the light of current conditions." Miller, 61 Wash.2d at 384, 378 P.2d 464.

In affirming the trial court's conclusion that logging is not a public use, the Court of Appeals reasoned that

the logs themselves were not put to a public use; the land was not used for a public use; the stream revisions were not for a public use (for example, a road or park). Rather, like Manufactured Housing and [In re] City of Seattle, [96 Wash.2d 616, 638 P.2d 549 (1981)], the logging provided a public benefit but was not a public use.

Dickgieser, 118 Wash.App. at 447, 76 P.3d 288. "Viewed another way," the court said, "the Department logged this property to produce income and manage its assets. It did not log the property to create an area for public use. Thus, the logging was not a public use." Id. at 447, 76 P.3d 288.

Initially, we note that the Department does not dispute that logging of state forest lands is a public use. Further, the parties did not rely on Manufactured Housing, 142 Wash.2d 347,13 P.3d 183 or In re City of Seattle, 96 Wash.2d 616, 638 P.2d 549 (1981) in briefing to the Court of Appeals. In Manufactured Housing we considered whether chapter 59.23 RCW, granting tenants of mobile home parks a right of first refusal when park owners sought to sell, constituted a public use for which compensation should be paid. We held that securing housing for a segment of society might be a public benefit but it did not qualify as a public use since members of the public would be excluded from the park, which would be privately owned by the residents. Although the right to exclude others was discussed, Manufactured Housing does not stand for the proposition that an inverse condemnation occurs only if individual members of the public are entitled to actually use the subject land. To the contrary, public use has been found where the property taken was not open for use to the public. There are many examples of public use that do not involve physical use of land by members of the public including: public utilities and the production of hydroelectric power, City of Tacoma v. Humble Oil & Refining Co., 57 Wash.2d 257, 258, 356 P.2d 586 (1960),State ex rel. Northwestern Electric Co. v. Superior Court, 28 Wash.2d 476, 183 P.2d 802 (1947); appropriation of water and facilities to generate electrical power to sell to the public, Public Utility District No. 1 of Chelan County v. Washington Water Power Co., 43 Wash.2d 639, 262 P.2d 976 (1953);...