Gaines v. Pierce County

Decision Date31 July 1992
Docket NumberNos. 13163-3-I,13495-1-II,s. 13163-3-I
Citation66 Wn.App. 715,834 P.2d 631
PartiesHerb GAINES, et al., Appellants, v. PIERCE COUNTY, Respondent. The State of Washington, Appellant, Lakeside Industries, a joint venture, Respondent.
CourtWashington Court of Appeals

Kenneth O. Eikenberry, Atty. Gen., and Millard J. Sloan, Jr., Asst. Atty. Gen., Olympia, for appellant Dept. of Transp. Robert E. Mack, and Smith, Alling, Lane, Tacoma, for appellant Gaines.

Richard C. Robinson, Lee, Smart, Cook, Martin & Patterson, Seattle, for respondent Lakeside Ind.

John W. Ladenburg, Pros. Atty., and Daniel R. Hamilton, Deputy Pros. Atty., Tacoma, for respondent Pierce County.

MORGAN, Judge.

Herb and Rose Ann Gaines appeal the dismissal by summary judgment of their claims against Pierce County and the State of Washington. 1 We affirm.

FACTS

The Gaineses own property at the intersection of State Route 161 and 144th Street East in Puyallup. The drainage basin consists of about 400 acres, and the property sits at its low point. Both the intersection and the property have a long history of being flooded by surface water.

In 1974, the Gaineses filled in the front part of their land and constructed a business called the Cider Press. Between approximately 1976 and 1979, Pierce County approved various developments in the surrounding area. In 1979, the County connected drainage culverts along 141st Street into similar culverts along SR 161.

In the early 1980s, two nearby landowners, Munizza and Soltis, began to ditch and dike their property in order to prevent surface water from accumulating on it. Munizza began around 1981, and Soltis began around 1983. Their activity continued to approximately 1986 or 1987.

In 1983, the Washington State Department of Transportation decided to widen SR 161. Thus, it contracted with Lakeside Industries for excavation services. As part of the contract, Lakeside agreed to indemnify the State with regard to claims arising out of Lakeside's disposal of soil left over from the excavation. Nothing in the contract specified how Lakeside was to dispose of the extra soil.

While Lakeside was excavating, Soltis, Munizza, and another nearby landowner, Haas, asked Lakeside to deposit soil on their land. Lakeside complied, and the landowners apparently utilized the soil in their diking and ditching operations.

In 1986, a "100-year storm" flooded the intersection and the Gaineses' parking lot. It also caused the State Patrol to close SR 161 for several days. Subsequently, other heavy storms caused flooding in the intersection and Gaineses' parking lot, as well as closures of SR 161.

In 1987, the Gaineses filed a complaint against Pierce County and the State of Washington, requesting monetary and injunctive relief. They alleged inverse condemnation, negligence, nuisance, trespass and violation of the State Environmental Policy Act (SEPA). The State and County moved for summary judgment, and several hearings were held. In the end, the trial court dismissed all of the Gaineses' claims.

The Gaineses appeal the trial court's dismissal of their claims. 2 We first consider, together, their claims for trespass, nuisance and negligence. We then consider, separately, their claims based on inverse condemnation and SEPA.

I.

Although we consider the claims for trespass, nuisance and negligence together, we discuss the liability of the State and County separately. We start with the County.

A.

The Gaineses argue that the County is liable for trespass, nuisance and negligence for two reasons. First, they assert that the County tortiously approved various subdivisions uphill from their property without requiring proper drainage systems. Second, they assert that the County tortiously connected the drainage system for 141st Street, a county road, into the drainage system for SR 161, a state highway.

Preliminarily, the Gaineses do not claim, and the record does not support an inference that the County or State intended to flood their property. Thus, we do not consider nuisance or trespass committed intentionally.

Nuisance can be committed negligently. Atherton Condo. Ass'n v. Blume Dev. Co., 115 Wash.2d 506, 527, 799 P.2d 250 (1990); Hostetler v. Ward, 41 Wash.App. 343, 357-59, 704 P.2d 1193 (1985), quoting Taylor v. Cincinnati [143 Ohio St. 426, 55 N.E.2d 724 (1944) ]. So can trespass. Zimmer v. Stephenson, 66 Wash.2d 477, 403 P.2d 343 (1965). Indeed, there is little remaining difference between trespass and nuisance. Bradley v. American Smelting & Refining Co., 104 Wash.2d 677, 684, 709 P.2d 782 (1985); 1 W. Rodgers, Environmental Law-Air and Water § 2.15 at 126-27 (1986). Both hinge on an invasion of plaintiff's interest in property. Bradley, 104 Wash.2d at 689, 690, 709 P.2d 782. The distinction between direct and indirect invasions has been abandoned, Bradley, 104 Wash.2d at 689, 709 P.2d 782, and it no longer matters whether the invading agent is tangible or intangible. Bradley, 104 Wash.2d at 690, 709 P.2d 782, quoting Borland v. Sanders Land Co., 369 So.2d 523, 529 (Ala.1979). The only remaining difference--arguably not a useful one--is that trespass "interferes with the right to exclusive possession of property," while nuisance intrudes on "the interest in use and enjoyment of property." Bradley, 104 Wash.2d at 690, 709 P.2d 782, quoting Borland v. Sanders Land Co., supra.

When nuisance is committed negligently, the elements of negligence must be proved. Atherton Condo. Association v. Blume Dev. Co., supra; Hostetler v. Ward, supra, quoting Taylor v. Cincinnati. Because trespass and nuisance are so similar, it follows that when trespass is committed negligently, the elements of negligence also must be proved. See Seal v. Naches-Selah Irrig. Dist., 51 Wash.App. 1, 5-6, 751 P.2d 873, review denied, 110 Wash.2d 1041 (1988) (in negligent trespass case, trespass instruction not needed because trial court gave negligence instruction). The elements of negligence are duty, breach, causation and damages. Harbeson v. Parke-Davis, 98 Wash.2d 460, 468, 656 P.2d 483 (1983); Hostetler, 41 Wash.App. at 349, 704 P.2d 1193.

The public duty doctrine provides that a negligence action cannot be maintained against state or local government unless the defendant owes a duty of care to the plaintiff individually, as opposed to a duty to the public generally. Taylor v. Stevens Cy., 111 Wash.2d 159, 163, 759 P.2d 447 (1988); Meaney v. Dodd, 111 Wash.2d 174, 178, 759 P.2d 455 (1988); Honcoop v. State, 111 Wash.2d 182, 188, 759 P.2d 1188 (1988); Bailey v. Forks, 108 Wash.2d 262, 265, 737 P.2d 1257 (1987). The County relies on this doctrine, arguing that it owes no duty of care to the Gaineses individually. Arguendo, we assume to the contrary--that the County does owe a duty of care to the Gaineses individually. See Colella v. King Cy., 72 Wash.2d 386, 391, 433 P.2d 154 (1967); Ronkowsky v. Tacoma, 71 Wash. 148, 153, 128 P. 2 (1912); Patterson v. Bellevue, 37 Wash.App. 535, 537, 681 P.2d 266 (1984) (duty to riparian owner).

Assuming that the County owes a duty of care to the Gaineses individually, its duty is circumscribed by Washington's rules on surface water. Washington regards surface water 3 "as an outlaw and a common enemy against which anyone may defend himself." Cass v. Dicks, 14 Wash. 75, 78, 44 P. 113 (1896), Morton v. Hines, 112 Wash. 612, 617, 192 P. 1016 (1920); Wood v. Tacoma, 66 Wash. 266, 271-72, 119 P. 859 (1911); Island Cy. v. Mackie, 36 Wash.App. 385, 388, 675 P.2d 607 (1984). Government has no common law duty to drain it. 4 Colella v. King Cy., 72 Wash.2d 386, 391, 433 P.2d 154 (1967), quoting Ronkowsky v. Tacoma, supra; Wood v. Tacoma, 66 Wash. at 276, 119 P. 859, quoting 4 Dillon, Municipal Corporations § 1734 (5th ed.). However, if government chooses to provide drainage by channeling surface water into a watercourse or drainway, it must exercise reasonable care not to substantially increase the volume or velocity of water in a way that causes damage to adjacent land. Colella, 72 Wash.2d at 391, 433 P.2d 154, quoting Ronkowsky v. Tacoma, supra; Harkoff v. Whatcom County, 40 Wash.2d 147, 151, 241 P.2d 932 (1952); Island County v. Mackie, 36 Wash.App. at 393, 675 P.2d 607.

Because government has no common law duty to drain surface water not artificially channelled or collected, it is not ordinarily liable for the increased flow of surface water that results from constructing or allowing others to construct roads, homes, or other improvements that prevent surface water from percolating into the ground. Wilber Dev. v. Rowland Construction, 83 Wash.2d 871, 875, 523 P.2d 186 (1974); Wood v. Tacoma, 66 Wash. 266, 272, 119 P. 859 (1911); Whiteside v. Benton County, 114 Wash. 463, 467, 195 P. 519 (1921); Patterson v. Bellevue, supra. As the Supreme Court said in Wilber Dev., 83 Wash.2d at 874-75, 523 P.2d 186:

A municipality ordinarily is not liable for consequential damages occurring when it increases the flow of surface water onto an owner's property if the damages arise wholly from changes in the character of the surface produced by the opening of streets, building of houses, and the like, in the ordinary and regular course of the expansion of the municipality. On the other hand, it is liable if, in the course of an authorized construction, it collects surface water by an artificial channel or in large quantities and pours it, in a body, upon the land of a private person, to his injury. Under this rule, while municipal authorities may pave and grade streets and are not ordinarily liable for an increase in surface water naturally falling on the land of a private owner where the work is properly done, they are not permitted to concentrate and gather such water into artificial drains or channels and throw it on the land of an individual owner in such manner and volume as to cause substantial injury to such land and without making adequate provision for its proper outflow, unless compensation is made. ...

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