Petersen v. Port of Seattle

• Decision Date: 09 October 1980
• Docket Number: No. 45817,45817
• Citation: 618 P.2d 67,94 Wn.2d 479
• Parties: Tom E. PETERSEN and Ruby Petersen, Appellants, v. The PORT OF SEATTLE, a municipal Corporation, Respondent/Cross-Appellant.
• Court: Washington Supreme Court

Page 479

94 Wn.2d 479

618 P.2d 67

Tom E. PETERSEN and Ruby Petersen, Appellants, v. The PORT OF SEATTLE, a municipal Corporation Respondent/Cross-Appellant.

No. 45817.

Supreme Court of Washington, En Banc.

Oct. 9, 1980.

As Changed Nov. 10, 1980.

Jones, Grey & Bayley, E. Michele Moquin, Short, Cressman & Cable, William K. McInerney, Jr., Schweppe, Doolittle, Krug, Tausend & Beezer, Dexter A. Washburn, Seattle, for appellants.

Bogle & Gates, Kimberly W. Osenbaugh, Sandra R. Cribbs, James A. Smith, Jr., Seattle, for respondent/cross-appellant.

HICKS, Justice.

This direct appeal concerns an inverse condemnation action started in November 1974, against the Port of Seattle. The Petersens (plaintiffs/appellants) owned and resided upon property located about 2 miles south of Sea-Tac Airport since before the airport was opened. They seek to recover the diminished value of their property resulting from the operation of the airport by defendant/cross-appellant Port of Seattle.

It is pertinent to note that the Port's policy when acquiring property in the vicinity of the airport on a negotiated voluntary sale basis was to pay unimpacted value, i. e., the value the property would have had absent the airport. For property whose airport impact damage had been determined by judgment prior to the Port's acquisition of it, the formula used in purchasing the property was unimpacted market value less the previous judgment paid.

February 27, 1978, a proceeding was begun in King County Superior Court testing the validity of various defense issues raised by the Port. Several days of hearings followed. May 30, 1978, by formal order, the trial court rejected the Port's claim that the Petersens' suit was time barred by any statute of limitation or that a prescriptive avigation right had been acquired in their property through operation of the airport.

The trial to determine the amount of compensation, if any, due the Petersens was scheduled for August 7, 1978. That trial was never held. Instead, a judgment on agreed facts was entered October 19, 1978. That judgment awarded the Petersens $50,000 for diminution of the value of their property resulting from the operation of the airport from its inception. Additionally, the Petersens claimed attorney and expert witness fees in an amount of $41,500. The Port stipulated that amount to be reasonable, but it denied any responsibility to pay the fees. The claim was refused by the trial court.

March 10, 1978 (after the conclusion of the hearing beginning February 27 and substantially more than 30 days before the scheduled August 7 trial date), the Port made a written settlement offer to the Petersens. The offer was refused. The judgment they eventually obtained did not exceed the March 10 settlement offer by 10 percent or more. See RCW 8.25.075.

The Petersens appeal the denial of attorney and expert witness fees. The Port cross-appeals the May 30 order denying its statute of limitations and prescriptive right defense.

STATUTE OF LIMITATION

The Port's cross appeal raises a threshold question: Does a 10-year statute of limitation apply to an inverse condemnation suit? If it does, is any portion of the Petersens' claim barred?

Initially, we encounter conceptual problems. The measure of compensation awarded a successful plaintiff in inverse condemnation proceedings is the diminution of the fair market value of the property caused by the governmental taking or damaging. Highline School Dist. 401 v. Port of Seattle, 87 Wash.2d 6, 548 P.2d 1085 (1976). As a general proposition, the diminished value is fixed as of the date of trial. Lange v. State, 86 Wash.2d 585, 590, 547 P.2d 282 (1976). From that premise, it follows that an uncompensated decline in the market value of the property measured at some date prior to initiation of the inverse condemnation suit requires no special consideration in the current action being prosecuted.

In this instance for example, the total compensation for the governmental taking or damaging of the Petersen property is determined by the decline in value of the property as measured at the time of trial. Less intensive airport activity in prior years which may have diminished the value of plaintiffs' property at that time, if uncompensated, is included within the diminished value caused by airport activity ongoing at the time of the present suit. This activity is demonstrably greater than in earlier years and, consequently, more damaging. Because the taking or damaging of plaintiffs' property is of constitutional magnitude, mere passage of time alone does not bar plaintiffs' cause of action. Ackerman v. Port of Seattle, 55 Wash.2d 400, 405, 348 P.2d 664 (1960).

A 10-year period of time, however, together with the requisite elements of adverse possession would, in a case such as this, have vested the Port with a prescriptive avigation right in plaintiffs' property. That avigation easement, if prescriptively acquired, would not be compensable. Highline School Dist. 401 v. Port of Seattle, supra, 87 Wash.2d at 15, 548 P.2d 1085. Enhanced airport activity following acquisition of an adverse right or a judgment for a damaging, which activity causes further damage, would, of course, be compensable. Highline.

As early as Aylmore v. Seattle, 100 Wash. 515, 171 P. 659 (1918), this court recognized that a landowner's right to just compensation for a taking of his land is bottomed on Const. art. 1, § 16 (amendment 9), and may not be barred merely by the passage of time. In Aylmore, at 519, 171 P. at 660, we quoted with approval:

"Where the constitution either expressly, or as interpreted by the courts, requires compensation to be first made for property taken for public use, a law which casts the initiative upon the owner and requires him to prosecute his claim for compensation within a time limited or be barred, is invalid. When under such a constitution property is appropriated to public use without complying therewith, the owner's right to compensation is not barred, except by adverse possession for the prescriptive period." Lewis, Eminent Domain (3d ed.), § 966.

The court reasoned that until title is lost by adverse possession, the owner "should have the right to maintain an action to recover that which represents the property itself." Aylmore, at 523, 171 P. at 662. A rather cogent argument is presented in Aylmore that entities clothed with the power of eminent domain should not be permitted to acquire the property of a private citizen by adverse possession and thus avoid payment of just compensation. While that is not the law of this state, it is a persuasive reason not to bar a property owner from receiving compensation merely by the passage of time. If, however, a right in property is acquired by a governmental entity by adverse possession, the owner's right to compensation is lost. State v. Stockdale, 34 Wash.2d 857, 210 P.2d 686 (1949); see generally Acquisition Of Title To Land By Adverse Possession By State Or Other Governmental Unit Or Agency, Annot., 18 A.L.R.3d 678 (1968).

Our constitution requires that just compensation be paid a landowner in the event of either a governmental "taking" or "damaging" of property. Martin v. Port of Seattle, 64 Wash.2d 309, 391 P.2d 540 (1964), cert. denied, 379 U.S. 989, 85 S.Ct. 701, 13 L.Ed.2d 610 (1965). In Highline School Dist. 401 v. Port of Seattle, supra, the school district assigned error to a trial court ruling that a statute of limitation barred a portion of its claim and urged that no limitation period applied. We noted, by virtue of the doctrine of prescription, a 10-year period is applicable to inverse condemnation suits and stated:

Consequently, the landowner may recover the total damage resulting from all of those interferences which have not been eliminated as bases for liability by the acquisition of a prescriptive right. In other words, an inverse condemnation action ... accrues when the landowner sustains any measurable loss of market value and the recovery may be had for the total loss of value which is both attributable to the interference and sustained during the 10-year period preceding the commencement of the action.

Highline, 87 Wash.2d at 15, 548 P.2d at 1091.

Extrapolating from Aylmore and Martin, we conclude the Port must prove all elements of a prescriptive right to bar the Petersens' claim. Absent such prescriptive right, their claim for just compensation is not affected by passage of time. If plaintiffs show a governmental interference with their land and a resultant decline in its market value, they are entitled to the remedy of just compensation.

The Port, however, may avoid the remedy, or a portion thereof, only if it affirmatively establishes its acquisition of a prescriptive avigation right in the Petersens' property. Proof of such prescriptive right necessarily includes a showing of uninterrupted hostile use for 10 years which has been open and notorious. Krona v. Brett, 72 Wash.2d 535, 433 P.2d 858 (1967).

HAS THE PORT ACQUIRED A PRESCRIPTIVE RIGHT IN THE PETERSENS' PROPERTY?

In the present case, the plaintiffs concede the existence for the required time of all elements of a prescriptive right, except "hostility". The trial court, in its findings of fact, found the Port's use of the air space around and over the Petersen property had not been hostile. Consequently, it concluded that the Port had not acquired a prescriptive avigational right in the property and that the Petersens were entitled to just compensation.

The trial court based its finding of nonhostility primarily upon proof of the Port's policy of paying unimpacted value to voluntary sellers of land around the airport which the Port wished to acquire. Further, the Port's active encouragement of, and participation since 1973 in, a community committee designed to find alternative remedies for land adversely affected by airport activity also contributed to the trial court's conclusion. Though the court's...