Pruitt v. Douglas County

• Decision Date: 17 April 2003
• Docket Number: No. 21055-3-III.,21055-3-III.
• Citation: 116 Wash.App. 547,66 P.3d 1111
• Parties: John PRUITT and Marian Pruitt, husband and wife, and Sam Fletcher and Boni Fletcher, husband and wife, Appellants, v. DOUGLAS COUNTY, Respondent, GTE, and Underground Specialties, Inc., Defendants.
• Court: Washington Court of Appeals

66 P.3d 1111

116 Wash.App. 547

John PRUITT and Marian Pruitt, husband and wife, and Sam Fletcher and Boni Fletcher, husband and wife, Appellants, v. DOUGLAS COUNTY, Respondent, GTE, and Underground Specialties, Inc., Defendants.

No. 21055-3-III.

Court of Appeals of Washington, Division 3, Panel Six.

April 17, 2003.

Peter D. Poulson, East Wenatchee, for Appellants.

Robert R. Siderius, Jeffers, Danielson, Sonn & Aylward, Wenatchee, for Respondent.

SWEENEY, J.

This is a suit by homeowners Sam and Boni Fletcher and John and Marian Pruitt against Douglas County for water damage arising from a June 1997 storm. Originally, the natural flow of water across certain land— properties ultimately acquired by the homeowners here—would have been 15 cubic feet per second (c.f.s.) during a similar storm. But before the landowners built their homes, the county and others constructed roads which reduced the natural flow across their properties from such a storm to 1 to 2 c.f.s. After the homeowners built, the county made road improvements which channeled water from other natural drain basins across the homeowners' properties which resulted in a total flow of 10 c.f.s. during the storm. We conclude that these facts support a cause of action under the common enemy doctrine.¹

FACTS

We have done our best to identify and articulate the factual backdrop for this case. And we have spelled it out here in a light most favorable to the nonmoving party as we must. See Hubbard v. Spokane County, 146 Wash.2d 699, 707, 50 P.3d 602 (2002). But it has been most difficult because the parties have provided only deposition excerpts— some of which lack context—to support their respective legal positions.

In the 1930s, Douglas County constructed Eastmont Avenue and Badger Mountain Road. The subject properties are located at the base of one of several natural drain basins crossed by Eastmont Avenue and Badger Mountain Road. Appellant's Br. at 3 & Apps. 1, 2; Clerk's Papers (CP) at 37, 109-11, 160-62. Eastmont Avenue and Badger Mountain Road intercept some, but not all, of the water flowing downhill from these natural drain basins.

The East Wenatchee subdivision in which the affected properties are located was approved by Douglas County in 1958. The landowners' homes were built in 1967. In 1986, Sam and Boni Fletcher purchased their home. The pre-flood value was $160,000. John and Marian Pruitt bought the house next door in 1993. The pre-flood value was $164,000.

Apparently, if upland property had not been developed, a storm like the one in 1997 would have produced a water flow of 15 c.f.s. onto the landowners' lots. CP at 84-85. But sometime between 1965 and 1995, a private quarry road was built on Badger Mountain. CP at 70. The construction of the quarry and the private access roads altered the natural flow of the runoff so with the construction of Eastmont Avenue, Badger Mountain Road, and the private quarry access roads, the natural drainage to the landowners' properties was significantly reduced. So that if a storm of the same magnitude as the 1997 storm occurred, the landowners could expect only 1 to 2 c.f.s. to reach their properties from the natural drain area. CP at 41.

The county paved Upper Daniels Drive between 1995 and 1997. The construction apparently changed the slope of the road and added a ditch. As a result, the water was channeled onto the landowners' properties.

In June 1997, storm water flooded the landowners' lots at the rate of 10 c.f.s. Of the 10 c.f.s. that flowed onto the landowners' properties, only 10 percent was likely to have originated inside the landowners' natural drain basin. And approximately 90 percent of the water was likely to have originated outside of the landowners' natural drain basin. CP at 42.

The parties dispute the nature of the water flow. The landowners claim that Daniels Drive and Badger Mountain Road acted as a conduit to bring a portion of the water onto their properties. The county claims that the water was "diffuse surface water," that overflowed the drainage ditches. Resp't's Br. at 4. In 1995, KCM Inc. prepared a Comprehensive Flood Hazard Management Plan. It concluded that the drainage facilities along Badger Mountain Road were inadequate to prevent flooding during major rainfall. The drainage facilities were designed in a way to contribute to uncontrolled drainage into urban areas. And the plan also concluded that a lack of county resources over many years had left the system functioning poorly, primarily due to the accumulation of sediment in culverts and ditches.

The landowners sued the county for damages based on negligence, strict liability, trespass, and inverse condemnation. The court granted the county's summary judgment motion.

DISCUSSION

STANDARD OF REVIEW

Our review here is de novo. Hubbard, 146 Wash.2d at 706, 50 P.3d 602. "`Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.'" Id. at 707, 50 P.3d 602 (quoting Ellis v. City of Seattle, 142 Wash.2d 450, 458, 13 P.3d 1065 (2000)). A material fact is one upon which the outcome of litigation depends. Greater Harbor 2000 v. City of Seattle, 132 Wash.2d 267, 279, 937 P.2d 1082 (1997).

We view the evidence in the light most favorable to the nonmoving party. Hubbard, 146 Wash.2d at 707, 50 P.3d 602. "If reasonable minds can reach different conclusions, summary judgment is improper." Kalmas v. Wagner, 133 Wash.2d 210, 215, 943 P.2d 1369 (1997).

And also if the question is exclusively one of law, review is de novo. Rivett v. City of Tacoma, 123 Wash.2d 573, 578, 870 P.2d 299 (1994).

COMMON LAW NEGLIGENCE AND TRESPASS

Trespass. A trespass claim requires "`an intentional or negligent intrusion onto or into the property of another.'" Borden v. City of Olympia, 113 Wash.App. 359, 373, 53 P.3d 1020 (2002) (quoting Mielke v. Yellowstone Pipeline Co., 73 Wash.App. 621, 624, 870 P.2d 1005 (1994)). Trespass can be shown by the discharge of water when the water ultimately reaches another's property. Hedlund v. White, 67 Wash.App. 409, 418 n. 12, 836 P.2d 250 (1992) (citing Buxel v. King County, 60 Wash.2d 404, 409, 374 P.2d 250 (1962)).

"Negligent trespass" requires proof of negligence (duty, breach, injury, and proximate cause). Gaines v. Pierce County, 66 Wash.App. 715, 719-20, 834 P.2d 631 (1992). We treat claims for trespass and negligence arising from a single set of facts as a single negligence claim. Pepper v. J.J. Welcome Constr. Co., 73 Wash.App. 523, 546-47, 871 P.2d 601 (1994).

Surface Water. Surface water is "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." Dahlgren v. Chicago, Milwaukee & Puget Sound Ry., 85 Wash. 395, 405, 148 P. 567 (1915). The runoff from surface waters is dissipated in two ways: by spreading broadly and diffusely or by following a natural drain course. Island County v. Mackie, 36 Wash.App. 385, 390, 675 P.2d 607 (1984). A natural drain is "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).

Common Enemy Doctrine. The common enemy doctrine "provides that surface water is `an outlaw and a common enemy against which anyone may defend himself, even though by so doing injury may result to others.'" DiBlasi v. City of Seattle, 136 Wash.2d 865, 875, 969 P.2d 10 (1998) (quoting Cass v. Dicks, 14 Wash. 75, 78, 44 P. 113 (1896)). In its strictest form, under the common enemy doctrine, if the landowner "`in the lawful exercise of his right to control, manage or improve his own land, finds it necessary to protect it from surface water flowing from higher land, he may do so, and if damage thereby results to another, it is damnum absque injuria [injury without redress].'" Halverson v. Skagit County, 139 Wash.2d 1, 15, 983 P.2d 643 (1999) (quoting Cass, 14 Wash. at 78, 44 P. 113).

There are, however, three recognized grounds for liability despite the common enemy doctrine: (1) blockage of a natural drain or waterway; (2) collection and discharge of water onto adjoining lands in quantities greater than, or in a manner different from, its natural flow; and (3) failure to exercise due care in preventing unnecessary damage. Currens v. Sleek, 138 Wash.2d 858, 866, 983 P.2d 626, 993 P.2d 900 (1999) (refusing to abandon the common enemy doctrine altogether in favor of the reasonable use rule); Borden, 113 Wash.App. at 367-68, 53 P.3d 1020.

The county is not liable under the common enemy doctrine for flood damage caused by its road improvements, unless, in the course of making those improvements, it blocked a natural drain or waterway, collected and discharged water onto neighboring land, or failed to exercise due care in preventing unnecessary damages. See Currens, 138 Wash.2d at 867-68, 983 P.2d 626.

Artificial Collection/Discharge. Surface waters may not be "`"artificially collected and discharged upon adjoining lands in quantities greater than or in a manner different from the natural flow thereof."'" Halverson, 139 Wash.2d at 18-19, 983 P.2d 643 (emphasis omitted) (quoting Pls.' Resp. Br. at 46 (quoting Colella v. King County, 72 Wash.2d 386, 390, 433 P.2d 154 (1967))). This prohibits the creation of an unnatural conduit, but permits the direction of diffuse surface waters into preexisting waterways and drain ways. Currens, 138 Wash.2d at 862, 983 P.2d 626.

The rule is set out in Burton v. Douglas County.² Just like here, the county in Burton asserted that the road did not convey surface waters by artificial means and deposit them on the landowner's property. Burton v. Douglas County, 14 Wash.App. 151, 153, 539 P.2d 97 (1975). And, like here, the county claimed that since there was no evidence that it was negligent in the construction of its road work, it...