Morris v. McNicol

Decision Date28 February 1974
Docket NumberNo. 42885,42885
PartiesRobert C. MORRIS, Appellant, v. Howard C. McNICOL et al., Respondents.
CourtWashington Supreme Court

Schweppe, Doolittle, Krug, Tausend, Beezer & Beierle, Rex B. Stratton, III, Seattle, for appellant.

Kenneth L. LeMaster, James A. Andersen, Frank J. Conway, and James M. Beecher, Seattle, for respondents.

WRIGHT, Associate Justice.

This is an appeal from a summary judgment in favor of all respondents, dismissing with prejudice appellant's action for damage to real property. On April 7, 1970, appellant filed this action against respondents. The amended complaint sought damages of $80,000 as well as affirmative relief. This complaint alleged that drainage accumulations and abnormal flooding on appellant's lakefront property were caused by the grading and removal of soil and vegetation from respondents' properties.

Appellant owns a 100 by 300 foot waterfront lot on Lake Washington located near the entrance to Lake Forest Park at Bothell Way. Lyon Creek (also known as Lyons Creek) meanders through this property on which appellant's residence is located and empties into Lake Washington. Some time in 1967, appellant noticed that there was an accumulation of sand and gravel at the mouth of Lyon Creek and along his lake shoreline. By late winter of 1967--68, the creek bed and the nearby lake area were being filled in with material which came down the creek. This caused abnormal flooding which damaged appellant's house and yard.

Respondents' properties are located on or near Lyon Creek approximately 3 miles upstream from appellant's waterfront lot.

Respondent Terrace Acres, Inc. owns a tract of land approximately 40 acres in size located just north of the Snohomish-King County line. Lyon Creek has its source a short distance north of the Terrace Acres property and runs through said property in a southerly direction. Respondents Gaston, d/b/a North City Excavators and major shareholders in Terrace Acres, Inc., removed in excess of 50,000 cubic yards of sand and gravel from this land between February and June of 1967.

Respondents McNicol own land located east of the Terrace Acres, Inc. property. This land is a plateau-like area of about 26 acres, known as Horizon Hills, located about 900 feet from Lyon Creek. Beginning in 1967, this land was bulldozed and cleared for building sites.

Respondents Fruhling, d/b/a Ed's Bulldozing, own property to the south of and adjoining the McNicol property. The Fruhling property consists of a westerly tract and an easterly tract, which tracts are separated by two other ownerships. Lyon Creek runs through this area. Some time after 1963, respondents Fruhling removed about 50,000 cubic yards of sand and gravel from the 10-acre westerly area and leveled the area for platting purposes. Then, some time after 1966 or 1967, they removed sand and gravel from the easterly area.

According to the deposition of appellant's expert witness, a soil engineer, other possible sources of material deposits in Lyon Creek include: (1) natural drainage from road networks; (2) various areas of erosion upstream; (3) drainage from ditches and culverts that empty into the creek; (4) natural phenomenon in nature to have deltas form at the mouth of a creek; (5) material deposits as the result of the construction of a sewer in the creek; (6) erosion and material deposits as the result of excavation and construction of a shopping center over the bed of Lyon Creek, approximately 2 blocks from the location of appellant's property; and (7) the artificial rerouting of the creek around this shopping center.

Respondents moved for summary judgment on the following grounds: (1) respondents breached no duty owed to appellant and the type of injury complained of afforded appellant no cause of action under the doctrine of Damnum absque injuria; (2) respondents' exercise of their right to control, manage or improve their land did not constitute the actual and proximate cause of appellant's alleged injury; (3) respondents' liability, if any, is several and appellant could not prove the amount of damages attributable to each respondent; and (4) appellant's cause of action was barred by the applicable statute of limitations.

On May 5, 1972, at the conclusion of oral argument on the motion for summary judgment, the trial court indicated its tentative ruling to grant the motion, but reserved signing an order pending review of exhibits referred to in depositions. Subsequently, on June 1, 1972, the trial court granted respondents' motion for summary judgment and denied appellant's motion for reconsideration.

The issue appealed is whether the trial court erred in granting respondents' motion for summary judgment. We answer this question in the affirmative.

Pursuant to CR 56(c), a summary judgment is only available where, 'there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.'

A 'material fact' is a fact upon which the outcome of the litigation depends, in whole or in part. CR 56; Balise v. Underwood, 62 Wash.2d 195, 381 P.2d 966 (1963); Zedrick v. Kosenski, 62 Wash.2d 50, 380 P.2d 870 (1963).

Moreover, the burden is on the party moving for summary judgment to demonstrate that there is no genuine dispute as to any material fact and all reasonable inferences from the evidence must be resolved against him. Barber v. Bankers Life & Casualty Co., 81 Wash.2d 140, 500 P.2d 88 (1972); Welling v. Mount Si Bowl, Inc., 79 Wash.2d 485, 487 P.2d 620 (1971). Thus, where a motion for summary judgment is made, it is the duty of the trial court to consider all evidence and all reasonable inferences therefrom in a light most favorable to the nonmovant. Maki v. Aluminum Bldg. Products, 73 Wash.2d 23, 436 P.2d 186 (1968).

The motion should be granted only if, from all the evidence, reasonable men could reach but one conclusion. CR 56(c); Meissner v. Simpson Timber Co., 69 Wash.2d 949, 421 P.2d 674 (1966). Only when the pleadings, depositions, admissions, and affidavits considered by the trial court do not create a genuine issue of material fact between the parties is the moving party entitled to a summary judgment. Ferrin v. Donnellefeld, 74 Wash.2d 283, 444 P.2d 701 (1968).

For the purposes of a summary judgment procedure, an appellate court is required, as was the trial court, to review material submitted for and against a motion for summary judgment in the light most favorable to the party against whom the motion is made. Yakima Fruit & Cold Storage v. Central Heating & Plumbing Co., 81 Wash.2d 528, 503 P.2d 108 (1972); Robert Wise Plumbing & Heating, Inc. v. Alpine Dev. Co., 72 Wash.2d 172, 432 P.2d 547 (1967).

As pointed out above, respondents' motion for summary judgment was...

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    ...motion only if reasonable persons could reach but one conclusion. Wilson, 98 Wash.2d at 437, 656 P.2d 1030 (citing Morris v. McNicol, 83 Wash.2d 491, 494-95, 519 P.2d 7 (1974)). We agree with the trial court that reasonable persons could conclude only that the County did not violate Bonnevi......
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    ...Condo. Apartment-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wash.2d 506, 516, 799 P.2d 250 (1990) (citing Morris v. McNicol, 83 Wash.2d 491, 494, 519 P.2d 7 (1974)). In determining whether a genuine issue of material fact exists, we "must view all facts and reasonable inferences in th......
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