White v. Pima County
| Decision Date | 31 March 1989 |
| Docket Number | CA-CV,No. 2,2 |
| Citation | 775 P.2d 1154,161 Ariz. 90 |
| Parties | Barbara WHITE, Plaintiff/Appellee/Cross-Appellant, v. PIMA COUNTY, a body politic, Defendant/Appellant/Cross-Appellee. 88-0310. |
| Court | Arizona Court of Appeals |
The issue in this case is whether the common enemy doctrine can be a defense to a claim of inverse eminent domain arising out of damage caused by floodwaters. The trial court held that it did not, rejecting a jury instruction on the doctrine offered by Pima County. The jury returned a verdict in plaintiff's favor for $213,945 and the county appealed. The appellee has filed a cross-appeal which we shall treat as a cross-issue because the cross-appellant is not seeking to enlarge any of her rights. See City of Phoenix v. Long, 158 Ariz. 59, 761 P.2d 133 (App.1988).
In 1983 the plaintiff owned 160 acres of land near Tucson in the floodplain of the Santa Cruz River which cut through the plaintiff's property and flowed in a northwesterly direction when it contained water.
The plaintiff's property had been farmed in the past, but in 1983 there were no crops and the only improvements were some irrigation ditches, a farm road, a well and a gas line running to the well.
The county owned the adjacent downstream property west of the plaintiff. Its property was along the north bank of the Santa Cruz River. This property consisted of 120 acres on which there were two landfills, the Old Marana Landfill and the Tangerine Road Landfill.
The Old Marana Landfill had been in continuous existence and use from approximately 1964. It consisted of a pit around which there was a three- to four-foot-high dirt berm on the east and south sides of the landfill and a chainlink fence around the base of the berms. The berms and fence were placed around the landfill pursuant to the requirements of the Arizona Department of Health Services which regulates landfills. The purpose of the berms was to floodproof the landfill so that floodwaters from the Santa Cruz River would not enter the landfill and the fence was erected to control access to the site and prevent papers from blowing out of the landfill.
The Tangerine Road Landfill was under construction in 1983. It was located directly north and adjacent to the Old Marana Landfill and had a cement and dirt berm around it, approximately eight to ten feet high to floodproof it and a chainlink fence around the top of the berm for security purposes and to prevent papers from blowing out.
In October 1983 a flood occurred in southeast Arizona that was of unprecedented magnitude. It produced the largest flow of water in the Santa Cruz River in recorded history. Needless to say, the river overflowed in the area of the plaintiff's and Pima County's property. It overflowed the banks of the river, flowed in a northwesterly direction across the plaintiff's property and onto the county's property. The berms and fence around the Old Marana Landfill and the berm around the Tangerine Road Landfill backed up some of the water onto the plaintiff's property, thereby increasing in the immediate area of the landfills the depth of the floodwaters already covering plaintiff's property.
Among the damages sustained by plaintiff's property were erosion of the topsoil, deposition of river sediment onto the property, destruction of the irrigation ditches and gas line and bank erosion. The plaintiff claimed that the landfills caused all of her property damage and filed this lawsuit.
The county contends that the common enemy doctrine which applies to private landowners in Arizona applies with equal force to condemning authorities. The plaintiff disagrees. She contends the Arizona Constitution prohibits application of the doctrine to a condemning authority.
In her cross-issues plaintiff argues that the common enemy defense has been abrogated by statute, that the trial court erred by refusing to allow her to show this and further erred by rejecting her offer of proof which showed that the county could have constructed the landfill in another
[161 Ariz. 93] manner which could have avoided or minimized her damages.
The common enemy doctrine as it relates to floodwaters is well established in Arizona. In Southern Pacific Company v. Proebstel, 61 Ariz. 412, 150 P.2d 81 (1944), the court adopted the following distinction between floodwaters and surface waters:
61 Ariz. at 418, 150 P.2d at 83, quoting 26 Cal.Jur. 280. One legal effect of this distinction was there stated:
"... [O]ne has the right to protect himself against 'flood waters,' that is, waters of the character last described, and for that purpose to obstruct their flow onto his land, and this even though such obstruction causes the water to flow onto the land of another."
61 Ariz. at 419, 150 P.2d at 84, quoting Horton v. Goodenough, 184 Cal. 451, 194 Pac. 34 (1920). The court then concluded:
The defendant in this case has not collected the waters upon its right of way and discharged the same immediately upon plaintiff's land; it has merely raised its own premises so as to dike against and prevent the flow of water thereon. It has protected itself and prevented invasion of its premises of the flood waters of the stream. If, thereby, the waters which are turned back and prevented from flooding over its right of way damage the lands of the plaintiff, the case is one of damnum absque injuria. Defendant has done nothing further than to exercise its common law right of protection against flood waters. It is presumed that plaintiff may do the same.
Id. at 421, 150 P.2d at 84. In accord, Gillespie Land and Irrigation Company v. Gonzalez, 93 Ariz. 152, 379 P.2d 135 (1963) and Markiewicz v. Salt River Valley Water Users Association, 118 Ariz. 329, 576 P.2d 517 (1978).
The privilege to embank against floodwaters is qualified to the extent that an owner of land subject to overflow of floodwaters who undertakes protective measures may not obstruct the flow of a natural watercourse. Kennecott Copper Corporation v. McDowell, 100 Ariz. 276, 413 P.2d 749 (1966); Diedrich v. Farnsworth, 3 Ariz.App. 264, 413 P.2d 774 (1966). Nor may he collect the floodwaters and then cast them upon his neighbor. See Southern Pacific Company v. Proebstel, supra.
There is no doubt that the common enemy doctrine as applied to floodwaters is based on the common law. See Gerrard v. Crowe, 1 A.C. 395, 16 A.L.R. 625 (English Court of Appeals 1920) and the cases cited therein. There is also no doubt that where the legislature has not clearly manifested its intent to repeal a common law rule, it will not be abrogated. United Bank v. Mesa N.O. Nelson Co., 121 Ariz. 438, 590 P.2d 1384 (1979).
We turn to the statutes involved at the time of the 1983 flood. In 1973 the state legislature passed the Floodplain Act of 1973, ch. 106, Laws 1973, A.R.S. § 45-2341-2346. 1 The purpose of the act was set forth in Laws 1973, ch. 106, § 1:
The purpose of this act is to empower the agencies of the state of Arizona, for lands owned by the state, and to empower encourage and assist cities, towns and
[161 Ariz. 94] counties of the state, to establish, along watercourses, streams and lakes, appropriate regulations which are part of a floodplain management program to:
1. Minimize flood damages and reduce the height and violence of floods which are caused by obstructions restricting the capacity of the floodways.
2. Prevent unwise encroachment and building development within floodplain areas.
3. Protect the life and property of citizens who have settled in floodplain areas.
4. Enhance property values of abutting floodplain lands.
5. Protect public health.
6. Reduce the financial burden imposed on the community, its governmental units and its citizens if such land is subject to flooding.
7. Enhance wildlife and recreation values where appropriate by preserving riparian vegetation in "green belts" along watercourses and floodplains.
A.R.S. § 45-2342(C) mandated the "floodplain board," in this case, the county, to adopt floodplain ordinances which were to include, inter alia:
1. Regulations for all subdivision of land, construction of dwelling units or commercial or industrial structures or uses which may divert, retard or obstruct flood water and threaten public health, safety or the general welfare.
2. Regulations which establish minimum flood protection elevations and flood damage prevention requirements for uses, structures and facilities which are vulnerable to flood damage.
A.R.S. § 45-2342(H) provides that nothing in the new act or in the regulations adopted pursuant to it shall:
1. Affect existing uses of property or the right to the continuation of the use.
2. Affect reasonable repair or alteration of property for the purposes for which such property was used on the effective date of this act or any regulation affecting such property takes effect.
A.R.S. § 45-2344 provided that:
Every new structure, building, fill, excavation or development...
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