Lambier v. City of Kennewick

• Decision Date: 12 December 1989
• Docket Number: No. 9495-2-III,9495-2-III
• Citation: 56 Wn.App. 275,783 P.2d 596
• Parties: Darwin LAMBIER and Lois Lambier, husband and wife, and the marital community composed thereof, Respondents, v. CITY OF KENNEWICK, a Washington municipal corporation, and Benton County, a Washington municipal corporation, Appellants.
• Court: Washington Court of Appeals

Page 275

56 Wn.App. 275

783 P.2d 596

Darwin LAMBIER and Lois Lambier, husband and wife, and the marital community composed thereof, Respondents, v. CITY OF KENNEWICK, a Washington municipal corporation, and Benton County, a Washington municipal corporation Appellants.

No. 9495-2-III.

Court of Appeals of Washington Division 3, Panel Four.

Dec. 12, 1989.

William Cameron, City Atty., Kennewick, for appellants.

Daryl Jonson and Cowan, Walker, Jonson & Moore, Richland, for respondents.

THOMPSON, Chief Judge.

The City of Kennewick appeals a judgment awarding Darwin and Lois Lambier $25,000 plus attorney fees for inverse condemnation. The City argues primarily that its actions did not constitute a "taking" pursuant to Const. art. 1, § 16. We affirm.

In 1972, Benton County and the City of Kennewick built a railroad underpass on Canal Drive east of Yost Avenue. Canal Drive makes an S-shaped curve under the rail line. The 1972 project involved construction of a roadway wide enough for four lanes of traffic in the immediate area of the underpass. The roadway near Yost Avenue remained two lanes wide.

The Lambiers bought their home, located at the northeast corner of the intersection of Canal Drive and Yost Avenue, in 1976 for $38,000.

Canal Drive was improved again in 1980, widening it to four lanes and adding curbs and gutters from the area of the underpass west past the Lambiers' property to Columbia Center Boulevard. The street then was annexed by the City of Kennewick.

As part of the 1980 project, Mr. Lambier agreed to permit the County to relocate his driveway. In 1980, the County and the Lambiers entered into an "Agreement for Construction Encroachment (Right of Entry)", in which the Lambiers agreed to permit the County to construct roadway embankment slopes and to plant bushes on the embankment beyond the Canal Drive right of way. The Lambiers received $660 consideration for this agreement.

In 1979, Mr. Lambier complained to Benton County authorities that at least two vehicles had failed to negotiate the Canal Drive curve and had come to rest on his property. The County Engineer replied that the planned widening project and the addition of curbs and gutters would mitigate Mr. Lambier's concerns. However, the Lambiers presented evidence at trial indicating at least 11 vehicles careened off Canal Drive and landed on their property after the 1980 widening project. Four of those incidents resulted in claims with their home insurer totaling $4,470.30, and with their vehicle insurer totaling approximately $300. On the basis of this evidence, the trial court concluded the Lambiers' property had "suffered the incursion of eleven or twelve vehicles" from Canal Drive since the 1980 improvements.

After the street was annexed by the City, Mr. Lambier took his complaints to officials there, but in 1986 the City's director of public works notified the Lambiers the City would take no action.

In 1985, the Grange Insurance Co. canceled the Lambiers' homeowner's policy because of the damage claims. Several other insurers refused coverage, but the Lambiers finally obtained insurance from Allstate, whose application form did not ask about prior claims of the type the Lambiers had filed.

Also in 1985, the Lambiers listed the property for sale for $63,000. They received no offers, and one realtor testified the property was not saleable at any price. Another realtor who testified for the Lambiers said disclosure of the vehicle incursions would make the property very difficult to sell, and probably no buyer would pay more than $20,000 for it. The City's expert agreed the property would be very difficult to sell if the problems were disclosed to potential buyers.

The Lambiers initiated this action in October 1986, alleging inverse condemnation and negligence by the City and Benton County. The City's answer raised as affirmative defenses the issues of accord and satisfaction, failure to file a claim in accordance with RCW 35A.31.030 and the "applicable" statute of limitation.

At trial, plaintiff's expert Don Johnston testified the curve near the Lambiers' property was designed "contrary to good engineering practice and policies, of design policies of the State." Two experts called by the City testified the curve complied with design criteria, and was safe for travel at the posted speed limit.

The trial court found that defects in the design and construction of Canal Drive caused the incursion of vehicles onto the Lambiers' property. The court also found that the property had a value of $43,500, and the incursion of vehicles from Canal Drive had reduced the value of the property by $25,000, to $18,500. ¹ The court concluded the continuing intrusion of vehicles onto the Lambiers' property constituted a "taking" without just compensation, in violation of Const. art. 1, § 16, and set damages at $25,000 plus reasonable attorney fees. The City appeals the $32,442.75 judgment.

In this appeal, the City assigns error to virtually all of the court's substantive findings. We have reviewed the record, and, to the extent this appeal challenges the sufficiency of the evidence, we hold the court's findings are fully supported.

Inverse Condemnation

The City first contends the facts do not establish a cause of action for inverse condemnation. Const. art. 1, § 16 (amend. 9) provides in pertinent part:

No private property shall be taken or damaged for public or private use without just compensation having been first made ...

A "taking" has occurred when government conduct interferes with the use and enjoyment of private property, with a subsequent decline in market value. Martin v. Port of Seattle, 64 Wash.2d 309, 320, 391 P.2d 540 (1964), cert. denied, 379 U.S. 989, 85 S.Ct. 701, 13 L.Ed.2d 610 (1965). The term "inverse condemnation" is used to describe an action alleging a governmental "taking", brought "to recover the value of property which has been appropriated in fact, but with no formal exercise of the power". Martin, 64 Wash.2d at 310 n. 1, 391 P.2d 540 (citing Thornburg v. Port of Portland, 233 Or. 178, 376 P.2d 100 (1962)).

The City contends the trial court erred in finding fault with the City's conduct. It points out the Lambiers' damages were "neither contemplated by the plan of work nor a necessary incident to the building or maintenance of the road ..." Seal v. Naches-Selah Irrig. Dist., 51 Wash.App. 1, 10, 751 P.2d 873, review denied, 110 Wash.2d 1041 (1988). In Seal, the plaintiffs claimed leakage from an irrigation canal caused damage to their cherry orchard. They alleged negligence, trespass, nuisance and an uncompensated "taking", but only the negligence issue was presented to the jury. The jury found 95 percent contributory negligence, and the plaintiffs appealed the court's refusal to instruct the jury on the other issues. Seal, 51 Wash.App. at 2-4, 751 P.2d 873. Relying on Songstad v. Metropolitan Seattle, 2 Wash.App. 680, 472 P.2d 574 (1970), the court upheld the trial court's refusal to instruct the jury on inverse condemnation because the alleged damages were not planned or anticipated in the construction of the canal. Seal, 51 Wash.App. at 9-10, 751 P.2d 873. The case appears to hold that an unintended consequence of a governmental project cannot be a "taking", which would preclude recovery by the Lambiers here.

Seal and Songstad are factually distinguishable. Seal, 51 Wash.App. at 8 n. 2, 751 P.2d 873, noted the allegation there did not involve "an affirmative act of construction ... which directly resulted in damage to property". Here, the City and County affirmatively undertook the construction project that resulted in the Lambiers' damages. And in Songstad, the plaintiffs alleged the City had permitted rocks and earth to wash or precipitate onto their property. The court affirmed the trial court's refusal to instruct the jury on inverse condemnation in part because the damages were not permanent, but were merely a "temporary interference" with their plans for the property. Songstad, 2 Wash.App. at 685, 472 P.2d 574. As is discussed more fully below, the intrusion here is permanent in nature.

Both Seal and Songstad rely on Jorguson v. Seattle, 80 Wash. 126, 130-31, 141 P. 334 (1914), overruled sub nom Wong Kee Jun v. Seattle, 143 Wash. 479, 505, 255 P. 645, 52 A.L.R. 625 (1927), in which the court stated:

[Article 1, section 16] was never intended to apply to consequential or resultant damages not anticipated in, nor a part of, the plan of a public work. It was never intended to apply to damages resulting to private property from the negligent or wrongful use of public property.

However, the Supreme Court abandoned the Jorguson rule in Wong Kee Jun v. Seattle, supra; ² see State v. Williams, 12 Wash.2d 1, 11-14, 120 P.2d 496 (1941); Boitano v. Snohomish Cy., 11 Wash.2d 664, 675-77, 120 P.2d 490 (1941); see also W. Stoebuck, Nontrespassory Takings in Washington § 1.5, at 5 n. 1 (1980); Annot., Damage to Private Property Caused by Negligence of Governmental Agents as "Taking," "Damage," or "Use" for Public Purposes, in Constitutional Sense, 2 A.L.R.2d 677, 689-90 (1948). To the extent Seal and Songstad rely on Jorguson, they are not authoritative.

The unintended results of a governmental act may constitute a "taking". This principle is implicit in the holdings of cases involving uncompensated "takings" of property neighboring Seattle-Tacoma International Airport, in which increased aircraft noise and vibration obviously were not intended consequences, or even perhaps anticipated results, ³ of the airport construction. See Highline Sch. Dist. 401 v. Port of Seattle, 87 Wash.2d 6, 548 P.2d 1085 (1976); Martin v. Port of Seattle, supra; see also Ulery v. Kitsap Cy., 188 Wash. 519, 523, 63 P.2d 352 (1936).

The City next argues the Lambiers' damages were not the result of lawful governmental activities, but of the unlawful and unintended acts of the drivers of the vehicles. This argument appears...