Island County v. Mackie

• Decision Date: 09 January 1984
• Docket Number: No. 11633-9-I,11633-9-I
• Citation: 675 P.2d 607,36 Wn.App. 385
• Parties: ISLAND COUNTY, a political subdivision of the State of Washington, Respondent, v. Sylvan MACKIE and Pearl Mackie, husband and wife, and the marital community composed thereof, Appellants.
• Court: Washington Court of Appeals

Page 385

36 Wn.App. 385

675 P.2d 607

ISLAND COUNTY, a political subdivision of the State of Washington, Respondent, v. Sylvan MACKIE and Pearl Mackie, husband and wife, and the marital community composed thereof, Appellants.

No. 11633-9-I.

Court of Appeals of Washington,

Division 1.

Jan. 9, 1984.

Review Denied March 23, 1984.

[675 P.2d 609] Hamersley S. Wright, Freeland, for appellants.

David F. Thiele, Island County Pros. Atty., Alan R. Hancock, Deputy Pros. Atty., Coupeville, for respondent.

DURHAM, Acting Chief Judge.

Sylvan and Pearl Mackie appeal the order awarding damages and granting a permanent injunction to respondent Island County.

The Mackies own several acres of lowland property on Whidbey Island. Humphrey Road, maintained by Island County, abuts their property on the west, and is located within a natural drainway extending from the northwest and across their property. Island County maintains a culvert under Humphrey Road to facilitate the passage of water through the drainway. The outfall of the culvert In September 1977, the Mackies sued Island County, a number of County officials, and several upland property owners, seeking damages and injunctive relief for the alleged unlawful diversion of surface waters into the drainway and onto their property (Mackie I ). The individual defendants were dismissed from the suit, and the County was awarded summary judgment, which was affirmed by this court in an unpublished opinion. This court found that the culvert and the Mackie property are located in a natural drainway, and that the culvert merely facilitates the natural passage of water through the drainway and under Humphrey Road. It also found that the County, through a system of drainage ditches upland of the Mackie property, had not redirected any additional watershed waters into the drainway and onto the property.

deposits surface water onto the Mackie property.

In August 1979, during the pendency of Mackie I, the Mackies constructed a dam that diverted the waters flowing across their property into a drainage ditch maintained by the County. The ditch abuts the Mackie property on the north and is located within a separate natural drainway. The Mackies also deepened and widened this ditch to accommodate the increased flow, and deposited the removed soil onto a County road next to the ditch.

On March 27, 1981, the Mackies plugged the culvert under Humphrey Road, causing water to back up and form a pond on the west side of the road, leading to the road's collapse. Island County was forced to replace the culvert in order to effect repairs.

On March 31, 1981, the County filed suit against the Mackies, seeking damages and injunctive relief against further blocking of the culvert, redirection of water out of the drainway into the ditch, widening of the ditch, and dumping any removed material onto the County road. After issuing both a temporary restraining order and preliminary

injunction against these activities, ¹ [675 P.2d 610] the trial court awarded damages and granted a permanent injunction from which the Mackies now appeal.

THE COMMON ENEMY RULE

The Mackies first contend that they were entitled to block the culvert pursuant to the common enemy rule. Under this rule, vagrant and diffuse surface waters are regarded as a common enemy against which a landowner may defend himself, regardless of injury to others. See Cass v. Dicks, 14 Wash. 75, 78, 44 P. 113 (1896). The common enemy rule does not apply, however, to waters flowing through natural watercourses, such as rivers and lakes. See Wilber v. Western Properties, 14 Wash.App. 169, 173-74, 540 P.2d 470 (1975). In the Mackies' view, the waters flowing through the culvert under Humphrey Road were surface waters subject to the common enemy rule.

The trial court ruled that the Mackie property, the upland property and the culvert are all located within a "natural drainway" extending from the northwest across the Mackie property. The court also held that the common enemy rule is inapplicable to both natural watercourses and natural drains. A natural drain has been defined as "that course, formed by nature, which waters naturally and normally follow in draining from higher to lower lands." King County v. Boeing Co., 62 Wash.2d 545, 550, 384 P.2d 122 (1963). The Mackies do not challenge this definition nor do they dispute that their property is located in a natural drain. Rather, they argue that natural drains do not fall within the watercourse exception to the common enemy rule. Washington case law does not support this view.

In Trigg v. Timmerman, 90 Wash. 678, 156 P. 846 (1916), the Washington Supreme Court held that an upper proprietor was entitled to incidentally increase the flow of surface In King County v. Boeing Co., supra, the court squarely held that the common enemy rule does not apply to watercourses or natural drains. The case differs from Trigg only in that natural drain was recognized as a distinct geologic feature, as opposed to a subclass of watercourse. In either case, the common enemy rule does not apply.

                water into a "swale" that extended through his property and that of a lower proprietor.  Although the court acknowledged the principle that an upper proprietor may not artificially concentrate surface water on his land and discharge it upon the land of a lower proprietor, Trigg, at 681, it held that rule to be inapplicable " 'to natural depressions or drain ways through which the surface water on the higher land drains onto the lower land' ".  Trigg, at 681-82, 156 P. 846, quoting 19 L.R.A.  (N.S.) 167.   In so doing, the court held that the swale was a watercourse, "in the sense that there is a natural gravitation of water therein towards the south".  Trigg, at 682, 156 P. 846.   Thus, although the common enemy rule was not involved, the court equated natural drains and watercourses for purposes of water drainage law
                

The Mackies contend that the inclusion of natural drains in the watercourse exception is inconsistent with pre-Trigg case law. They allege that Trigg and Boeing blurred what had been a clear distinction between watercourses and natural drains for purposes of the common enemy rule. While it is true that early Washington cases did not use the term natural drain, they nonetheless refused to apply the common enemy rule under circumstances substantially equivalent to the instant case. In Dahlgren v. Chicago, Milwaukee & Puget Sound Ry. Co., 85 Wash. 395, 148 P. 567 (1915), plaintiffs brought an action for the alleged wrongful obstruction of a watercourse. Waters gathered to the west of plaintiffs' property "in a natural channel or gully" and then flowed across their property. The defendant railroad constructed an embankment across the gully but failed to provide adequate drainage, causing water to back up on the plaintiffs' land. Affirming the plaintiffs' verdict, the court held that the complaint sufficiently described the flow of water across waters of a casual or vagrant character having a temporary source, and which diffuse themselves over the surface of the ground, following no definite course or defined channel, while here the waters ... [flow] ... naturally and without hindrance through a natural water course and channel ...

their property as a watercourse. In so doing, the court noted that surface waters are

Dahlgren, at 405, 148 P. 567. The physical conditions described in Dahlgren--a periodic flow through a gully across the plaintiffs' land--appear no different from those on the Mackie property.

Furthermore, early Washington decisions recognized that surface water could become part of a watercourse if it accumulates and begins flowing in a natural channel. For example, in Miller v. Eastern Ry. & Lumber Co., 84 Wash. 31, 146 P. 171 (1915), the court held that although a swamp or swale is not ordinarily a watercourse, it may be a watercourse "[w]here there is a spreading of a stream which still moves by natural gravitation in a certain direction to a common or defined channel". Miller, at 34, 146 P. 171. ² In contrast, the court defined surface water as

" 'water on the surface of the ground, the source of which is so temporary or limited as not to be able to maintain for any considerable time a stream or body of water having a well defined and substantial existence.' "

Miller, at 35, 146 P. 171, quoting 1 Kinney, Irrigation & Water Rights § 318. Accord, Hastie v. Jenkins, 53 Wash. 21, 101 P. 495 (1909). Thus, it appears that a narrow definition of watercourse was never applied in Washington, as the Mackies contend. See Comment, Toward a Unified Reasonable Use Approach to Water Drainage in Washington, 59 Wash.L.Rev. 61, 68 n. 34 (1983).

In any event, Washington cases decided after Trigg have consistently held that the common enemy rule does not apply to natural drains. See Boeing, at 550-52, 384 P.2d 122; Wilber,

                at 173, 540 P.2d 470.   Thus, even if it were true that these cases departed from prior authority, the Mackies fail to indicate why this departure was unwarranted as a matter of policy.  If the common enemy rule does not apply to watercourses, no reason suggests why the rule should also not apply to natural drains.  As it is undisputed that the culvert and the Mackie property lie within a natural drain, the Mackies were not entitled to block the culvert under the common enemy rule.  See Wilber, at 173, 540 P.2d 470
                

COLLATERAL ESTOPPEL

The Mackies next argue that the trial court erred in ruling that they were precluded from relitigating the issues decided in Mackie I. ³ They are mistaken. Collateral estoppel prevents the relitigation of an issue or determinative fact after the party estopped has had a full and fair opportunity to present his case. See Henderson v. Bardahl Int'l Corp., 72 Wash.2d 109, 115, 431 P.2d 961 (1967). Beagles v. Seattle-First National Bank, 25 Wash.App. 925, 929, 610 P.2d 962 (1980). The doctrine applies only if the following questions are answered...