Wilber Development Corp. v. Les Rowland Const. Inc., 43027

• Decision Date: 13 June 1974
• Docket Number: No. 43027,43027
• Parties: WILBER DEVELOPMENT CORPORATION, a Washington corporation, Appellant, v. LES ROWLAND CONSTR. INC., a Washington corporation, et al., Respondents.
• Court: Washington Supreme Court

Page 871

83 Wn.2d 871

523 P.2d 186

WILBER DEVELOPMENT CORPORATION, a Washington corporation, Appellant, v. LES ROWLAND CONSTR. INC., a Washington corporation, et al Respondents.

No. 43027.

Supreme Court of Washington, En Banc.

June 13, 1974.

Rehearing Denied Aug. 9, 1974.

Kane, Vandeberg & Hartinger, Harold T. Hartinger, James A. Krueger, Tacoma, for appellant.

Reed, McClure, Moceri & Thonn, William R. Hickman, Seattle, Ronald Hendry, Pros. Atty., Robert Backstein, Deputy Pros. Atty., Rush & Hayes, Frederick B. Hayes, Dennis J. LaPorte, Peterson & Haarmann, Robert H. Peterson, Tacoma, for respondents.

RESELLINI, Associate Justice.

This is an inverse condemnation action which the trial court dismissed on motions of the defendants for summary judgment.

The action was commenced by the owner of 61.3 acres of unplatted land in Steilacoom, Washington. The theory of the action, as settled upon after several pretrial conferences, was that the defendants, the Town of Steilacoom and County of Pierce, had, in approving plans for storm drainage facilities to be constructed by land developers in conjunction with subdivision plats of lands lying east of the plaintiff's land, effected a taking or damaging of its property. The taking or damaging allegedly resulted from the fact that storm sewers and ditches which were constructed pursuant to the plans, carried onto the plaintiff's lands more water than would have naturally reached the land and deposited it in a manner different from the natural flow.

Affidavits which were before the court upon the defendants' motions for summary judgment showed that there was upon the plaintiff's land a natural swamp into which surface waters from all of the platted areas naturally drained. A natural watercourse flowed from the northern side of this swamp, over a rim or bluff, down through the town and into Puget Sound. The flow of water was controlled by the superintendent of utilities for the Town of Steilacoom, so that the water in the swamp was maintained at the level at which it had stood prior to the development of the subdivisions.

It was the allegedly limited capacity of this watercourse which concerned the plaintiff's expert engineer, who stated in his affidavit that, while the watercourse had a sufficient capacity to carry all the water which would have been drained from the plaintiff's land if he had drained it and developed it, provided the lands to the east had remained in their natural condition, it did not have sufficient capacity to drain the plaintiff's land and carry away the water which was brought to it from the developed lands above. He stated that the watercourse could handle the waters carried to the plaintiff's lands by the storm drainage facilities only if the plaintiff's land was used as a holding basin.

This engineer's affidavit stated that the subdivision and development of the platted lands had created a runoff of surface water that made storm drainage necessary. It further stated that prior to the development of the platted lands, surface water that might otherwise have collected by reason of rains was dissipated by evaporation, transpiration, and percolation into the ground. It declared:

The removal of timber and undergrowth, and the substitution of streets, driveways, homes, and the like, changes the character of the land to such an extent that the subdeveloper must anticipate that 30%, or more, of any rainfall will be carried away by storm drainage facilities . . .

9. If no waters were carried to the plaintiff's lands by the storm drainage systems of the Town of Steilacoom and Pierce County, Washington, the plaintiff's lands could be entirely drained by a ditch or pipe connecting the lowest elevations of the land with the natural watercourse which begins in the westerly portion of the plaintiff's lands.

This affidavit showed that surface waters collected within the platted lands was discharged upon the plaintiff's lands through five outlets, either ditches or pipes, and that at each outlet ditches were extended onto the plaintiff's lands.

The defendants' affidavits showed that water from all the lands in question naturally drained into the swamp on the plaintiff's land, that no new sources of water had been diverted from their natural flow into the storm sewer system, and that the water table in the swamp had remained the same before and after the development of the platted lands.

An affidavit of a real estate appraiser filed on behalf of the plaintiff, stated that the market value of the land had been adversely affected by reason of the fact that surface water was being collected and discharged upon the land from storm sewers.

The trial court was of the apparent view that the uncontradicted statement in the defendants' affidavits that the water level had not risen in the swamp, was proof that the amount of water discharged upon the land from the storm sewer system was not greater than the amount which had drained there naturally before the platted lands were developed. While it recognized that the defendants had trespassed upon the plaintiff's land to construct ditches for the channeling of the water, it was of the apparent opinion that any damage resulting was of a temporary nature and not compensable in this action.

A municipality ordinarily is not liable for consequential damages occurring when it increases the flow of surface water onto an owner's property if the damages arise wholly from changes in the character of the surface produced by the opening of streets, building of houses, and the like, in the ordinary and regular course of the expansion of the municipality. On the other hand, it is liable if, in the course of an authorized construction, it collects surface water by an artificial channel or in large quantities and pours it, in a body, upon the land of a private person, to his injury. Under this rule, while municipal authorities may pave and grade streets...