Halvorson v. Skagit County

• Decision Date: 09 September 1999
• Docket Number: No. 66171-5.,66171-5.
• Citation: 139 Wash.2d 1,983 P.2d 643
• Court: Washington Supreme Court
• Parties: Leonard and Jeanne HALVERSON, husband and wife, et al., Respondents, v. SKAGIT COUNTY, Appellant, and State of Washington, Respondents.

983 P.2d 643

139 Wash.2d 1

Leonard and Jeanne HALVERSON, husband and wife, et al., Respondents, v. SKAGIT COUNTY, Appellant, and State of Washington, Respondents.

No. 66171-5.

Supreme Court of Washington, En Banc.

Argued May 27, 1999.

Decided September 9, 1999.

As Amended September 10, 1999.

Reconsideration Denied November 9, 1999.

Twede & Svaren, David Svaren, Burlington, Lane, Powell, Spears & Lubersky, Eugene Knapp, Mount Vernon, for Amicus Curiae on Behalf of Diking District # 12.

Keller, Rohrback, William Smart, David Major, Mark Griffin, Leonard Barson, Seattle, Charles Wiggins, Bainbridge Island, Hon. Thomas L. Verge, Skagit County Pros., John Moffat, Deputy Skagit County Pros., Mount Vernon, for Appellant.

David Reeve, Bellevue, Steve Berman, Carl Hagens, Anthony Shapiro, Seattle, Christine Gregoire, Atty. Gen., Glen Anderson, Asst. Atty. Gen., Olympia, for Respondent.

IRELAND, J.

This is a direct appeal from a judgment on a jury verdict in an inverse condemnation action. Over 100 residents of the Nookachamps area of Skagit County, Washington, suffered flooding in November 1990. Claiming that the County took their lands without just compensation contrary to the eminent domain provisions of the Washington State Constitution,¹ Plaintiffs brought suit against Skagit County.²

We hold Plaintiffs failed to plead a viable theory for imposing liability on the County for the levee-induced flooding because the County did not own the levees or property on which they were built. Furthermore, we hold that the common enemy doctrine provides a viable defense against any such liability.³ We reverse the verdict, remand for dismissal, and order that the trial court's writ of mandamus be vacated.

BACKGROUND

Before the Skagit River empties into Skagit Bay on the Puget Sound, it flows through 90,000 acres of property lying in a floodplain. The Skagit River delta floodplain is approximately 11 miles across an east-west axis, and 19 miles along a north-south axis. The Nookachamps area, located upstream from the City of Mount Vernon and across the river from the City of Burlington, lies in the Skagit floodplain and has historically been subject to flooding.⁴ Pls.' Responsive Br. on Appeal and Br. in Supp. of Cross-Appeal at 8 (hereinafter Pls.' Responsive Br.). The Skagit River has reached flood stage 41 times between 1900 and 1991, an average of once every 2.2 years.⁵ Prior to 1990, severe floods in the region were recorded in 1815, 1856, 1897, 1909, 1917, 1921, 1949, 1951, 1975, 1979, 1980, and 1982.⁶

To combat the flooding, landowners along the Skagit River began building dikes as early as 1863. In 1895, the Legislature passed legislation allowing landowners to organize and create public diking districts. Laws of 1895, ch. 117 (codified at RCW 85.05). These diking districts are independent of any other governmental authority. They have the power of eminent domain, RCW 85.05.070, the power to assess taxes against district properties proportionate to the benefits the properties receive from the creation of the dikes, RCW 85.05.075, and the power to issue bonds to fund construction of the dikes. RCW 85.05.078. By 1990, 16 diking districts had been created to maintain approximately 56 miles of levees and 39 miles of sea dikes in the Skagit River delta.

A description of the location of the Nookachamps area is helpful to understand Plaintiffs' claims. A Burlington Northern Railroad bridge crosses the Skagit River near Mount Vernon. Diking Districts No. 12 and No. 17 maintain levees upstream from the bridge. These two districts exist because local property owners organized, taxed themselves, formed the districts, and built dikes to protect their lands. Diking District No. 12 owns the dikes on the north side of the river, and Diking District No. 17 owns dikes on the south side. Diking District No. 12's levees are located between 50 and 1,000 feet from the Skagit River's banks. The river waters do not come into contact with the levees until the waters leave the banks of the river channel.⁷

The Nookachamps area lies on the south banks of the river, upstream from both the railroad bridge and Diking District No. 17, and across the river from dikes owned by Diking District No. 12. Landowners of the Nookachamps area have never utilized the available statutory process for creating a diking district in their own area. As a result, the portion of the south side of the Skagit River along the Nookachamps area is unprotected from floodwaters. The downstream railroad bridge, the downstream levees, and the levees across the river from the Nookachamps area form a constriction during high floodwaters. The County does not contest that this constriction causes floodwaters to back upstream and flow into the low-lying Nookachamps area.⁸

In November 1990, the Skagit River flooded twice, causing damage to various homeowners living on this historic floodplain.⁹ In response, 118 plaintiffs brought this inverse condemnation action against Skagit County and Diking Districts Nos. 12 and 17.¹⁰ The districts were voluntarily dismissed from the action, leaving the County as the sole defendant.¹¹ Nonetheless, Plaintiffs pursued their action against the County, alleging the County acted in concert with the diking districts in the maintenance, improvement, and operation of the diking system. The County's actions allegedly caused an increase in the amount of flooding experienced on Plaintiffs' lands. Plaintiffs claimed this levee-induced flooding constituted an inverse condemnation — that is, a taking without payment of just compensation in violation of article I, section 16 (amendment 9) of the Washington State Constitution. Plaintiffs did not assert a federal takings claim.

In addition to disputing Plaintiffs' theory of liability, the County brought third-party contribution and indemnity claims against the State of Washington.

At trial, Plaintiffs' case was based solely on the theory that their properties were flooded more severely than they would have been had there been no levees along the Skagit River. Specifically, Plaintiffs state that "this case is not about the damage, if any, that plaintiffs would have suffered by natural flooding absent the levees. It is about the incrementally increased levee-induced flooding of between 1½ feet to 4 feet caused by the levee system ...." Pls.' Responsive Br. at 4 (emphasis added). The County first argued it was not liable for the construction and operation of the levees owned by independent diking districts. The County argued that if it was responsible for the levees, despite its lack of ownership, then it was immune from liability because (1) it had obtained a prescriptive easement to cause such flooding; (2) it had the right to cause such flooding under the common enemy doctrine; and (3) it was immune from liability under RCW 86.12.037.¹²

The trial judge excluded the County's immunity defense and its prescriptive easement and common enemy jury instructions, and instructed the jury on joint and several liability as to a tort theory of "acting in concert." The jury found for Plaintiffs and awarded over $1.62 million in damages. Skagit County was found 69 percent liable while the State of Washington was found liable for 31 percent. The trial court then awarded over $1.3 million in prejudgment interest, $2.8 million in attorneys' fees, and $400,000 in expenses, bringing the total judgment against Skagit County and the State of Washington to $6.3 million. In addition, the trial court issued a writ of mandamus, compelling the County to comply with the Shoreline Management Act of 1971, chapter 90.58 RCW, the State Environmental Policy Act of 1971, chapter 43.21C RCW, and numerous county ordinances.

ANALYSIS

First Issue: Is Skagit County solely or jointly and severally liable for damages caused by levees owned by independent dike districts?

Plaintiffs claim the County is either solely or jointly and severally liable for levee induced flooding. The gravamen of Plaintiffs' claim against the County, as set forth in jury instruction 16, is that

Skagit County, either alone or in concert with others, interfered with each plaintiff's use and enjoyment of their personal or real property by diverting overbank floodwater onto each plaintiff's property during significant flood events.

Clerk's Papers (CP) at 1,850. In contrast, the County claims the diking districts are statutorily independent entities which built, and are responsible for maintaining, the dikes that allegedly caused Plaintiffs' flooding. The County claims it cannot be held liable for the levee-induced flooding because the County did not build the dikes or own the property on which they were built. The County is correct. Plaintiffs' theory of liability against the County is legally insufficient and contrary to established inverse condemnation law recently discussed in Phillips v. King County, 136 Wash.2d 946, 968 P.2d 871 (1998).

In Phillips, landowners sued the county and a private developer when drainage water from the development had been channeled across county property and onto the plaintiffs' land. The Court of Appeals found the county potentially liable because it had permitted and approved the development's drainage system, and because the county assumed ownership and maintenance of the drainage system once the development was completed. See Phillips, 136 Wash.2d at 959-60,

968 P.2d 871 (discussing the appellate court's decision). This court disagreed with the Court of Appeals, and the analysis is informative:

The question of when legal liability attaches to one's acts is a policy question, and legal liability is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy, and precedent. Rains [v. Department of Fisheries ], 89 Wash.2d 740,] 743-44[, 575 P.2d 1057 (1978) ]. A governmental entity does not become a surety for every governmental enterprise involving an element of

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