[No. 25161-6-III. Division Three. January 22, 2008.]
[1] Judgment Summary Judgment Determination In General. A summary judgment should not be granted if a reasonable person could reach more than one conclusion from the facts submitted. [2] Judgment Summary Judgment Review Role of Appellate Court. An appellate court reviews a summary judgment de novo, engaging in the same inquiry as the trial court. [3] Judgment Summary Judgment Review Interpretation of Facts. An appellate court reviewing a summary judgment considers the facts of the case and the reasonable inferences therefrom in the light most favorable to the nonmoving party. [4] Judgment Summary Judgment Burden on Moving Party In General. A party seeking a summary judgment has the burden of demonstrating the absence of a genuine dispute as to any material fact in the case. [5] Waters Surface Water Common Enemy Rule Classification of Water Question of Law or Fact. Whether waters discharged onto adjoining land are from a "natural watercourse" or are "surface waters" for purposes of the common enemy doctrine is a question of fact for the trier of fact. [6] Waters Surface Water Common Enemy Rule In General. The common enemy doctrine provides that surface water, caused by the falling of rain or the melting of snow, and that escaping from running streams and rivers, is regarded as an outlaw and a common enemy that may be defended against, even though doing so may result in injury to others. In its strictest form, when no exceptions apply, the common enemy doctrine allows landowners to alter the flow of surface water to the detriment of their neighbors, so long as they do not block a watercourse or natural drainway. [7] Waters Surface Water Common Enemy Rule Watercourse or Natural Drainway Exception In General. Under the watercourse or natural drainway exception to the common enemy doctrine, a landowner who interferes with the flow of a watercourse or natural drainway is not shielded from liability for resulting damage to neighboring lands. [8] Waters Surface Water Common Enemy Rule Classification of Water Surface Water Joining Natural Watercourse. For purposes of the common enemy doctrine, water that overflows the banks of a watercourse in times of flooding becomes surface water; however, surface water that joins or rejoins a natural watercourse and becomes subject to its current ceases to possess the characteristics of surface water and becomes part of the watercourse. [9] Waters Riparian Rights Source. Riparian water rights derive from the ownership of land contiguous to or traversed by a watercourse. [10] Waters Surface Water Common Enemy Rule Watercourse or Natural Drainway Exception Scope Interference With Flood Channel.Every watercourse flowing through a region subject to a changeable climate must have periods of high and low water and must have, not only its ordinary channel which carries the water in ordinary times, but also a flood channel to accommodate additional quantities of water that find their way into the watercourse. The flood channel is as much a natural part of a watercourse as the ordinary channel. Water in a flood channel is properly classified as riparian water, rather than surface water, with which no one is permitted to interfere to the injury of other riparian owners. Thus, under the watercourse or natural drainway exception to the common enemy doctrine, a landowner who constructs a dam, dike, levee, or other structure that interferes with the natural flow of high water to a watercourse's flood channel is not shielded from liability for resulting damage to upstream or downstream riparian lands. [11] Counties Levees and Flood Control Statutory Immunity Counties Applicability Unconstitutional Taking. RCW 86.12.037, which immunizes counties from liability for noncontractual acts and omissions involving flood control, applies only to tort actions and not to a claim that a county's acts or omissions involving flood control have effected an unconstitutional taking of private property under Const. art. I, § 16. [12] State Levees and Flood Control Statutory Immunity State Applicability Unconstitutional Taking. RCW 86.16.071, which immunizes the State from liability for its exercise of the authority, duties, and responsibilities involving flood plain management, applies only to tort actions and not to a claim that the State's acts involving flood plain management have effected an unconstitutional taking of private property under Const. art. I, § 16. [13] Eminent Domain Inverse Condemnation Interference With Flood Channel Relationship to Negligence. An inverse condemnation claim based on a governmental entity's interference with a flood channel resulting in damage to neighboring riparian property does not necessarily state a claim for negligence. [14] Eminent Domain Inverse Condemnation Nature of Remedy. Under Const. art. I, § 16, an inverse condemnation action lies to recover the value of a property right that a governmental entity has appropriated in fact without a formal exercise of its condemnation power. [15] Eminent Domain Inverse Condemnation Elements In General. The elements of an inverse condemnation cause of action are (1) a taking or damaging (2) of private property (3) for public use (4) without just compensation being paid (5) by a governmental entity that did not institute formal condemnation proceedings. [16] Eminent Domain Inverse Condemnation Elements Public Use What Constitutes Benefit to Other Property. The taking or damaging of property, to the extent that it is reasonably necessary for the maintenance and operation of other property devoted to public use, is a "taking" or "damaging" for a "public use" within the meaning of Const. art. I, § 16, which prohibits the taking or damaging of private property for public use without just compensation. [17] Eminent Domain Inverse Condemnation Elements Inadvertent Result. An unintended consequence of governmental conduct can constitute a "taking" for purposes of Const. art. I, § 16 and may give rise to an action for inverse condemnation. [18] Eminent Domain Inverse Condemnation Elements Causation Proximate Cause In General. An inverse condemnation claimant must show some governmental activity that is a direct or proximate cause of the claimant's loss. [19] Eminent Domain Inverse Condemnation Elements Affirmative Act Necessity. An inverse condemnation claimant must show that the alleged taking or damage was caused by a governmental entity's affirmative action, e.g., appropriating the land in question, restricting the land's use through regulation, or causing damage to the land by constructing a public project to achieve a public purpose. [20] Eminent Domain Inverse Condemnation Interference With Flood Channel Construction, Maintenance, and Modification of Dike. Evidence that a governmental entity constructed, maintained, and modified a dike that interfered with a watercourse's flood channels, thereby causing flood damage to neighboring riparian lands, may be sufficient to support an action for inverse condemnation. [21] Eminent Domain Inverse Condemnation Elements Causation Proximate Cause Question of Law or Fact. In an action for inverse condemnation, proximate causation is a question of fact for the trier of fact. [22] Appeal Review Issues Unsupported by Authority. An appellate court may decline to consider a claim that is unsupported by citation to relevant authority. BROWN, J., dissents by separate opinion. Nature of Action: Joint owners of real property abutting a river sought damages from a county and the state for inverse condemnation. During a two-year degree storm event, the river avulsed, i.e., the channel changed course very quickly and resulted in a new channel alignment. The change in alignment caused a substantial force of water to be redirected straight at the plaintiffs' property, resulting in a rapid erosion of the land and ultimately causing their house to collapse into the river. The plaintiffs permanently lost their home, its contents, and a significant portion of land. The plaintiffs claimed that the defendants' construction, maintenance, and modification of a dike upstream from their property interfered with the river's flood channels, causing the avulsion and the loss of their home. Superior Court: The Superior Court for Douglas County, No. 05-2-00235-1, John Hotchkiss, J., on April 13, 2006, entered a summary judgment in favor of the defendants. Court of Appeals: Holding that the common enemy doctrine is not a defense to liability, that the defendants are not statutorily immune from liability, and that the plaintiffs presented sufficient evidence to support an inverse condemnation claim, the court reverses the judgment and remands the case for further proceedings. John M. Groen- (of Groen, Stephens & Klinge, LLP) and Diana M. Kirschheim- (of Pacific Legal Foundation), for appellants. Douglas W. Webber-; Mark R. Johnsen-; and Robert M. McKenna-, Attorney General, and Paul F. James-, Assistant, for respondents. Ά1 SCHULTHEIS, J. The common enemy rule, which allows landowners to repel surface waters to the detriment of their neighbors, does not apply when the landowner obstructs a watercourse or natural drainway or when the landowner obstructs riparian water from entering a flood channel. Currens v. Sleek, 138 Wn.2d 858, 862-63, 983 P.2d 626, 993 P.2d 900 (1999); Sund v. Keating, 43 Wn.2d 36, 42-43, 259 P.2d 1113 (1953). Landowners appeal summary dismissal of their inverse condemnation claim. They claim that a dike owned, constructed, maintained, and modified by government entities blocked a side channel through which high waters would have otherwise flowed. The landowners presented evidence that the dike caused high waters flowing down the river to change the course of the channel and swept their land and home down the river. We conclude that they have presented material issues of fact that preclude summary judgment. We therefore reverse and remand. FACTS Ά2 Siblings Heather Fitzpatrick Sturgill and Don L. Fitzpatrick (the landowners) acquired property along the Methow River in Mazama, Washington, in the early 1980s. They built a log home and garage in the mid 1980s. Prior to June 16, 2002, the channel alignment of the Methow River was generally southwest and away from plaintiffs' property. Their home was 80 to 100 feet from the Methow River, which was outside of the 100-year flood line. Ά3 On June 16, during a two-year storm event, the river avulsedthe channel changed course very quickly and resulted in a new channel alignment separate from the previous channel alignment. The change in channel alignment caused a substantial force of water to be redirected straight at the landowners' property, resulting in a rapid erosion of the land and ultimately causing their house to collapse into the river. The landowners permanently lost their home, its contents, and a significant portion of land. The garage is now located immediately along the edge of the new riverbank. Ά4 The landowners filed an action against the State of Washington and Okanogan County, claiming that the government entities' construction of a dike upstream from their property caused the avulsion and the loss of their home. Ά5 The government entities each moved for summary dismissal of the landowners' action. The landowners responded with evidence that, sometime around 1975, the county and the state sponsored and constructed the Sloan-Witchert Slough Dike along the Methow River's downstream right bank, approximately one and one half miles upstream from the landowners' property. The dike was constructed as a public project to defend Washington State Highway 20, the Weeman Bridge, and several private properties from flooding. The dike was subsequently repaired and/or extended between 1978 and 1999. Ά6 The landowners also presented evidence through Jeffrey Bradley, PhD, a water resource management expert, that the avulsion was caused by the dike's blockage of natural side channels, which would have relieved the flow of water in the river and prevented the landowners' loss. The landowners asserted that the evidence presented genuine issues of material fact. The trial court granted summary dismissal. DISCUSSION Common Enemy Doctrine Ά11 Washington's common enemy doctrine "allows landowners to alter the flow of surface water to the detriment of their neighbors, so long as they do not block a watercourse or natural drainway." Id. at 862-63. Landowners are not shielded from liability if they dam up a stream, gully, or drainway, because "[a] natural drainway must be kept open to carry water into streams and lakes." Id. at 862 (citing 78 AM. JUR. 2D Waters § 134 (1975)). Ά13 In Halverson, the landowners' properties along the Skagit River were flood-damaged, which they claimed was exacerbated by the presence of levees along the river. Ά14 The landowners in this case properly point out that the overbank floodwaters in Halverson did not flow within a defined flood channel. Id. at 14 n.14. The Halverson court implied that if there were such evidence, it would apply an aspect of the doctrine expressed in Sund, in which case it would reach a different result. Id. (citing Sund, 43 Wn.2d at 42-46). Ά15 We also find Sund to be persuasive authority. There, the court examined the character that water assumes when it overflows a riverbank in times of flooding. Sund, 43 Wn.2d at 41-43. The government entities correctly point out that our courts have held that such water is surface wateragainst which they are entitled to protect themselves under the common enemy doctrine. Halverson, 139 Wn.2d at 14-15; Sund, 43 Wn.2d at 41-42 (citing Cass, 14 Wash. 75; Harvey v. N. Pac. Ry., 63 Wash. 669, 116 P. 464 (1911); Morton v. Hines, 112 Wash. 612, 192 P. 1016 (1920); DeRuwe v. Morrison, 28 Wn.2d 797, 184 P.2d 273 (1947)). Ά16 However, the Sund court declared: "The weight of authority inclines to the view that surface water, which has joined the course of a stream and has become subject to its current, ceases to possess the characteristics of diffused or vagrant surface waters and becomes part of the stream." Sund, 43 Wn.2d at 42; accord Halverson, 139 Wn.2d at 14-15; Marshland Flood Control Dist. of Snohomish County v. Great N. Ry., 71 Wn.2d 365, 369-70, 428 P.2d 531 (1967). Under the facts in Sund, the court held that the law of riparian water imposed liability to a landowner whose excavation near the bank of a stream caused the stream to change its course. Sund, 43 Wn.2d at 42; see also Marshland, 71 Wn.2d at 369-70. Ά17 In Sund, the stream was normally about 15 to 20 feet wide and 18 inches deep. Sund, 43 Wn.2d at 38. The riparian landowner's excavation, which interfered with a natural barrier that had served to keep floodwaters in check, was "fifty to sixty feet north of the north margin of [the stream]." Id. The flood channel included the land between the stream's bank and the natural barrier, which served as the bank of the flood channel. Id. Ά18 Here, the landowners' expert stated that the side channels were a part of the floodplain and the dikes interfered with natural high flow to these side channels. Though the government entities did not counter this evidence, the state characterizes the side channels as "merely depressions in the floodplain that carry water only in high water events." State's Br. at 13. To the contrary, as the landowners point out, a memorandum authored by a state hydrologist with the Department of Ecology reads: This road and dike work has impacted the Methow River by cutting off at least three natural overflow channels in the floodplain, thereby compressing more flood flow into the main channel and reducing the natural flood conveyance capacity of the river. Overall this work has cut off about a mile of overflow channels. Additional velocity and quantities of high flows compressed into the main channel during floods are disrupting the natural bed form of the river and causing additional erosion and scour of the main channel downstream. Clerk's Papers (CP) at 254-55. Ά19 The character of the water is an issue of fact. The landowners have presented an issue of material fact as to the existence of circumstances under which the legal rule in Sund would apply: [I]f the waters were in the flood channel of a stream, then certain principles become self-evident: (a) They are properly classified as riparian waters rather than surface waters; (b) being riparian waters, the rules relating to watercourses would apply. . . . As a consequence of the applicability of the law of riparian waters, appellants in the case at bar could neither intentionally nor negligently disturb the channel of the stream for their own purposes or to flood respondents' land; nor could they interfere with the flood channel of the streamfor that, also, is properly regarded as part of the stream. Sund, 43 Wn.2d at 44-45 (citation omitted). Ά20 The government entities insist that Sund does not apply because in that case the parties were adjoining landowners disputing the flood channel of a stream, but here the landowners do not have riparian rights to waters in the stream that the government entities obstructed. We are not persuaded. Ά21 We agree that when riparian rights exist, they derive from the ownership of land contiguous to or traversed by a watercourse. Dep't of Ecology v. Abbott, 103 Wn.2d 686, 689, 694 P.2d 1071 (1985). However, it is important to note that the Sund court adopted the following language it quoted from a water rights treatise: "Every stream flowing through a country subject to a changeable climate must have periods of high and low water. And it must have, not only its ordinary channel which carries the water in ordinary times, but it must have, also, its flood channel to accommodate the water when additional quantities find their way into the stream. The flood channel of the stream is as much a natural part of it as is the ordinary channel. It is provided by nature, and it is necessary to the safe discharge of the volume of water. With this flood channel no one is permitted to interfere to the injury of other riparian owners. . . . Thus, the courts are very nearly agreed that the flood channel must be considered as a part of the channel of the stream, and that no structures or obstructions of any kind can be placed in its bed which will have a tendency to dam the water back upon the property of the upper riparian owner." Sund, 43 Wn.2d at 43 (emphasis added) (emphasis omitted) (alteration in original) (quoting 3 HENRY PHILIP FARNHAM, WATERS AND WATER RIGHTS § 880, at 2561-62 (1904)). The landowners' property is situated on the Methow River, which affords them standing. Ά22 Sund also relied on O'Connell v. East Tennessee, Virginia & Georgia Railway, 87 Ga. 246, 13 S.E. 489, 490 (1891), which held that because floodwaters were not surface waters, a flood channel cannot be obstructed without incurring liability. The Georgia court distinguished between surface water and floodwater: "If the flood water becomes severed from the main current, or leaves the stream never to return, and spreads out over the lower ground, it has become surface water. But if it forms a continuous body with the water flowing in the ordinary channel, or if it departs from such channel animo revertendi, presently to return, as by the recession of the waters, it is to be regarded as still a part of the river." Sund, 43 Wn.2d at 43 (quoting O'Connell, 13 S.E. at 489). Ά23 The O'Connell court agreed with the Farmham treatise, supra, and other authorities in holding that the volume of water due to seasonal flow does not define a river or its flood channels, where these points in the river "act as natural safety-valves in times of freshet." O'Connell, 13 S.E. at 489. Ά24 The landowners presented evidence that the side channel drainways identified by its expert constituted flood channels under Sund. Such water cannot be blocked as surface water because it is part of the waterway. And waterways cannot be blocked. Conger v. Pierce County, 116 Wash. 27, 198 P. 377 (1921). Ά25 The county concedes that " 'even though a downhill landowner can lawfully repel surface water from his or her land, it must be done without blocking a natural water course or drainway.' " County's Br. at 14 (emphasis omitted) (quoting Colwell v. Etzell, 119 Wn. App. 432, 441, 81 P.3d 895 (2003)). But it claims that liability attaches only to downstream owners who damage the property of upstream landowners by backed-up water. E.g., Currens, 138 Wn.2d at 862. It is true that the only cases presented by the parties involve those factual circumstances. Ά26 In fact, Conger held that the state and county could not be relieved from liability to downstream owners when it straightened a waterway, causing the course of the river's current to shift and erode the downstream landowners' property. Conger, 116 Wash. at 42; see also Marshland, 71 Wn.2d 365 (finding liability for damage to railroad bridge from increased water flow in the waterway due to diking). IMMUNITY Ά28 RCW 86.12.037 was enacted to shield counties from liability for their efforts to protect the public from flood damage. Short v. Pierce County, 194 Wash. 421, 430-31, 78 P.2d 610 (1938). The statute provides immunity to counties where their negligence in the construction and maintenance of flood control devices results in damage to private property during floods or other periods of high water. Id. at 431. Ά29 Similarly, the state argues that it is immune. RCW 86.16.071 provides: "The exercise by the state of the authority, duties, and responsibilities as provided in this chapter [flood plain management] shall not imply or create any liability for any damages against the state." Damages include harmful inundation, water erosion of soil, stream banks and beds, and stream channel shifting. RCW 86.16.120. Ά30 The landowners correctly note that the immunity does not extend to an unconstitutional taking. In Paulson v. County of Pierce, 99 Wn.2d 645, 652, 664 P.2d 1202 (1983), the court held that because RCW 86.12.037 does not affect fundamental rights, it does not prohibit recovery under the takings provision of our state constitution, article I, section 16. Accord Halverson, 139 Wn.2d at 12; see also Conger, 116 Wash. at 38-40. The county disregards that portion of the opinion and argues only the facts of Paulson: that the county was found to be immune from liability for damages caused by a breach of the levy. Paulson was clearly a tort action. Paulson, 99 Wn.2d at 649, 650-51. Ά31 The same is true for Short, also relied upon by the county. In Short, the landowners alleged that because the county failed to properly repair a break in a bulkhead with cement, choosing instead to fill the hole with stakes and brush, the wall gave way and the rushing water eroded two acres of the landowners' topsoil. Short, 194 Wash. at 428-29. The court held that the immunity statute applied to that claim. Id. at 430. Ά32 The governmental entities also rely on Halverson, which they assert holds that tort immunity is inapplicable only when the alleged violation is based solely on constitutional grounds, and they assert that the immunity applies here because the landowners have pleaded tort claims as well as constitutional claims. Ά33 In Halverson, the court discussed a "hybrid" tort and inverse condemnation claim. Halverson, 139 Wn.2d at 11-12. But that was in the context of whether the county could be held liable under the tort concept of joint and several liability. Id. at 11. The landowners did not introduce such a hybrid concept here. Ά34 The governmental entities incorrectly assert that because the landowners claim that the entities negligently constructed the dike in the wrong location, their takings action is actually a tort action, to which it is immune as in Short. The landowners' claim is for blocking a natural drainway or flood channel. Negligence is not an issue. INVERSE CONDEMNATION Ά39 The landowners properly state that they have presented genuine issues of material fact regarding the state and county's roles in the construction, improvement, and maintenance of the dike in which they had ownership interest, rendering summary judgment inappropriate on this basis. Ά41 The landowners have presented issues of fact that preclude summary judgment on their inverse condemnation claim. Ά42 Reversed and remanded. SWEENEY, C.J., concurs. Ά43 BROWN, J. I would affirm the summary judgment grant for Okanogan County and the State on two grounds. First, the common enemy rule applies as a defense to this flooding claim. Halverson v. Skagit County, 139 Wn.2d 1, 13-15, 983 P.2d 643 (1999). Moreover, the State lacks the necessary proprietary interest in the Sloan Witchert Slough dike to attach liability under Halverson. Even considering their inverse condemnation theory, the Fitzpatricks' proposed watercourse exception to the general rule of nonliability would effectively eliminate the common enemy rule as developed in Washington for over 100 years. Second, even if the common enemy rule did not apply, I would hold that statutory immunity applies to the County under RCW 86.12.037 and to the State under RCW 86.16.071. Accordingly, I respectfully dissent.