Grundy v. Thurston County
| Decision Date | 28 July 2005 |
| Docket Number | No. 73906-4.,73906-4. |
| Citation | 117 P.3d 1089,155 Wn.2d 1 |
| Parties | Evelyne GRUNDY, Petitioner, v. THURSTON COUNTY, a municipal corporation and political subdivision of the State of Washington; The Brack Family Trust; Calvin Brack and Joyce M. Brack, Trustees, Respondents. |
| Court | Washington Supreme Court |
Barnett N. Kalikow, Kalikow & Gusa, PLLC, Olympia, for Petitioner.
Matthew Bryan Edwards, Owens Davies, PS, Jeffrey George Fancher, Olympia, for Respondents.
Richard M. Stephens, Green Stephens & Klinge, LLP, Bellevue, for Amicus Curiae Ian Bennett, Marcia Boyd, Ann Milner, Keith Milner, Brent Nicholson, Mary Katherine Nicholson, Diane Sharp, Donald Walker, Gloria Walker.
Harry Laurence Johnsen, Judith K. Bush, Lummi Indian Business Council, for Amicus Curiae Lummi Nation.
John Maurice Groen, Groen Stephens & Klinge, LLP, Russell Clayton Brooks, Pacific Legal Foundation, for Amicus Curiae Pacific Legal Foundation.
Jeffrey Murdock Eustis, Seattle, for Amicus Curiae Washington Environmental Council.
¶ 1 In this case, we consider whether a private nuisance claim brought by Evelyne Grundy, who alleges seawater damaged her property because her neighbors raised the height of their seawall, should be dismissed in light of the common enemy doctrine. We reverse the Court of Appeals dismissal of her private nuisance claim, and we hold that the common enemy doctrine does not apply to seawater.
¶ 2 Evelyne Grundy owns property on the west side of Johnson Point in Thurston County. She has lived there since 1981. Adjoining property at the end of the point was purchased by the Brack Family Trust (Bracks) about 10 years later. Although the properties were each protected by a seawall, the Bracks' wall was about 12 inches lower than Grundy's. Seawater from Puget Sound regularly flooded a portion of the Bracks' property during winter storms.
¶ 3 The Bracks extensively remodeled the single family residence located on their property and made other improvements. In 1997, they sandbagged along their seawall, and in the fall of 1998, they sought to raise the seawall surrounding their property by 16 to 18 inches. They obtained hydraulic project approval from the Department of Fish and Wildlife and a determination from Thurston County that they were not required to obtain a permit under the Shoreline Management Act of 1971, chapter 90.58 RCW.1 The stated purpose for raising the seawall was to prevent storm erosion and water intrusion.2 Grundy received no notice of the government action.
¶ 4 Seawater diverted by the Bracks' sandbags during winter storms in 1998-99 caused Grundy's property to be damaged by seawater for the first time. Water came within about 22 feet of Grundy's foundation and destroyed 1,200 square feet of vegetation. Grundy worried that more severe storms would cause water to enter her home through ground-level vents, destroying electrical and heating fixtures and undermining the structure.
¶ 5 Construction of the addition to the Bracks' seawall began in March 1999. Because the eastern portion was raised first, Grundy's view of the project was obscured until construction was almost complete.
¶ 6 Grundy filed a nuisance action against Thurston County and the Bracks in November 1999. She claimed Thurston County created a public nuisance by improperly exempting the Bracks' project from the permitting process. She also claimed the Bracks' seawall constituted a private nuisance because it made her property vulnerable to flooding. She sought abatement and attorney fees.
¶ 7 The Bracks moved for summary judgment, arguing that Grundy was not entitled to challenge Thurston County's decision because she did not timely seek review under the Land Use Petition Act, chapter 36.70C RCW. The Bracks also argued that Grundy could present no evidence that raising the seawall impacted her property.
¶ 8 The trial court granted the Bracks' motion,3 dismissing Grundy's cause of action as to the seawall4 and ordering as follows:
The plaintiff's first cause of action is DISMISSED; this dismissal is without prejudice to any new claim the plaintiff may have against Thurston County for issuance of the shoreline exemption. Thurston County waives any objection to plaintiff amending the complaint to include such new cause of action upon plaintiff meeting all claim filing requirements.
¶ 9 Grundy appealed, and the Court of Appeals affirmed, holding that Grundy's public nuisance claim was time-barred under the Land Use Petition Act and that the Bracks were entitled to prevent damage to their property under the common enemy doctrine. Grundy v. Brack Family Trust, 116 Wash. App. 625, 67 P.3d 500 (2003).
¶ 10 This Court granted Grundy's petition for review. Grundy v. Brack Family Trust, noted at 150 Wash.2d 1009, 79 P.3d 445 (2003).
¶ 11 When reviewing a grant of summary judgment, an appellate court undertakes the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982); Schaaf v. Highfield, 127 Wash.2d 17, 21, 896 P.2d 665 (1995) (). Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c); see also Dickgieser v. State, 153 Wash.2d 530, 535, 105 P.3d 26 (2005). "[T]he court must consider all facts submitted and all reasonable inferences from the facts in the light most favorable to the nonmoving party." Highline Sch. Dist. No. 401 v. Port of Seattle, 87 Wash.2d 6, 15, 548 P.2d 1085 (1976).
¶ 12 "Nuisance is `a substantial and unreasonable interference with the use and enjoyment of land.'" Bodin v. City of Stanwood, 79 Wash.App. 313, 318 n. 2, 901 P.2d 1065 (1995) (quoting 1 William H. Rodgers, Environmental Law § 2.2, at 33 (1986)).
¶ 13 Washington's law of nuisance is codified in chapter 7.48 RCW. Nuisance is broadly defined as "unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others . . . or in any way renders other persons insecure in life, or in the use of property." RCW 7.48.120.
¶ 14 A nuisance "which affects equally the rights of an entire community or neighborhood" is a public nuisance. RCW 7.48.130. Among the enumerated public nuisances is "[t]o obstruct or impede, without legal authority, the passage of any river, harbor, or collection of water." RCW 7.48.140(3). Any nuisance that does not fit the statutory definition of a public nuisance is a private nuisance. RCW 7.48.150.
¶ 15 An actionable nuisance is "whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property." RCW 7.48.010. Any person whose property is injuriously affected or whose personal enjoyment is lessened by a nuisance may sue for damages and for injunctive relief to abate the nuisance. RCW 7.48.020.
¶ 16 In her complaint, Grundy expressly bases her claim of public nuisance on assertions that Thurston County wrongfully and illegally allowed the Bracks to raise their seawall. But the trial court did not determine the legality of the exemption the county issued to the Bracks. According to Grundy, the trial court Br. of Appellant at 8-9.
¶ 17 Thus, Grundy does not seek damages from the county for its decision to allow construction of the Bracks' seawall. Rather, she alleges that the Bracks' seawall is a nuisance in fact.5 Her property is harmed because the Bracks' seawall is higher than her own. The relief she seeks is abatement of the nuisance.6
¶ 18 As the Court of Appeals noted, Thurston County is not a party to this appeal. Concerns about Grundy's due process rights and compliance with the Land Use Petition Act necessarily implicate the county — not the Bracks. Whether the county illegally issued an administrative shoreline exemption to the Bracks was not decided by the trial court, so it is not properly before us. RAP 7.3; Kruse v. Hemp, 121 Wash.2d 715, 721, 853 P.2d 1373 (1993) (). Accordingly, we do not reach the public nuisance issue.
¶ 19 The only issue properly before the appellate courts is Grundy's private nuisance action against the Bracks — and whether the common enemy doctrine applies to bar that action.
¶ 20 The Court of Appeals held that the Bracks were "entitled to prevent damage to their property from the vagrant surface water once confined in Puget Sound, even when a neighbor may be injured by their defense." Grundy, 116 Wash.App. at 636, 67 P.3d 500. We disagree.
¶ 21 "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." Currens v. Sleek, 138 Wash.2d 858, 861, 983 P.2d 626 (1999).
¶ 22 Washington courts first articulated the doctrine more than a century ago: "[S]urface water, caused by the falling of rain or the melting of snow, and that escaping from running streams and rivers, is regarded as an outlaw and a common enemy against which anyone may defend himself, even though by so doing injury may result to...
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