It’s My Land – My Neighbors Be Damned
The Washington Supreme Court has opined on two cases this year involving the water consequences to the neighbors of the developing parcel. The first was Alpental Community Club v. Seattle Gymnastics Society involving the ski lodge of the Seattle Gymnastics Society. The Society sold the timber off their land. Naturally, snow movement was a bit less impeded during the following winters and the cabins at the Community Club were hit by increased avalanches. Had the Gymnastics Society created a nuisance? They had a permit; their actions were consistent with standard forest practices. Where could they have gone wrong? The court ruled that the Gymnastics society had erred because it had not engaged in active “forestry practices” before the Community Club had purchased its land. Thus, in an odd way, the Community Club had purchased a restriction on the use of the Gymnastics Society’s trees when it had purchased its own parcel of mountain retreat. (A stranger point of view was provided by the appeals court in this case which ruled that the growing of timber was a “forest practice” as proscribed by law. The supreme court threw out that standard since they rightly could not distinguish between the growing of timber and the simple ownership of forest land.)
The second case, Evelyne Grundy V Thurston County, also involves changes in the way neighboring properties handle winter storms, it is also a nuisance claim, the change was also made with the blessings of a permit. However, this time the court rules that a nuisance has not been created. Justice Ireland writes for seven of the court in saying the permit indemnified the more recent property owner in the changes he made to his property. All nine justices agree that Grundy should be sent packing, but they have different reasons why and the majority comes up with what seems to be a unique new interpretation of a very old rule.
They were starting from this:
In its strictest form, the common enemy doctrine allows landowners to
dispose of unwanted surface water in any way they see fit, without
liability for resulting damage to one’s neighbor.Currens v. Sleek, 138 Wn.2d 858, 861, 983 P.2d 626 (1999).
but immediately face an important question: What is surface water?
Here’s the definition they work from:
The chief characteristic of surface water is its inability to maintain
its identity and existence as a body of water. It is thus distinguished
from water flowing in its natural course or collected into and forming a
definite and identifiable body, such as a lake or pond.Halverson v. Skagit County, 139 Wn.2d 1, 15, 983 P.2d 643 (1999).
From here they end up in a weird point:
Storm-driven waves in Puget Sound remain part of a definite and identifiable body of water when splashing onto waterfront property. They do not satisfy the
Halverson court’s definition of surface water. Washington courts have neither characterized storm-driven waves as
surface water nor applied the common enemy doctrine to seawater. We
decline to do so here.
Saunders’s dissent is clear, logical and worth quoting at length:
I cannot see how storm-driven waves which overflow the normal high-water mark differ from storm-swollen river waters that overflow their banks.
The waters of Puget Sound within the boundaries of ordinary high tides
might well not meet the definition of ‘surface waters’ from our case law,
just as the waters traveling within the banks of a defined river are not
‘surface waters.’ But just as the waters that escaped the banks of a river
are surface waters, Puget Sound waters driven by storms past the regular
high tide marks are surface waters.The majority cites the ‘‘chief characteristic’‘ of surface water ‘‘is its
inability to maintain its identity and existence as a body of water.’‘
Majority at 11 (quoting Halverson v. Skagit County, 139 Wn.2d 1, 15, 983
P.2d 643 (1999)). But the majority fails to distinguish between river
floodwater that overflows its banks, gradually losing its ‘‘identity and
existence’‘ as a river while becoming pools and then evaporating
altogether, and the exact same action by storm-driven waves which respond
similarly as storm conditions subside.In fact, all the reasons supporting the application of the common enemy rule against storm-generated flooding from rivers apply equally against storm-generated flooding from Puget Sound. It was precisely because the reasons for applying this rule are identical that the application of the common enemy rule to Puget Sound has not been questioned in the more than 100 years since this court first acknowledged that the rule applied in Cass v. Dicks, 14 Wash. 75, 44 P. 113 (1896).
Although the majority fails to anchor its holding on the rationale
underlying the common enemy rule, that rationale is set forth in Cass and
is worth recalling: The rule is based upon the principle that such water is a part of the land upon which it lies, or over which it temporarily flows, and that an owner of lands has a right to the free and unrestrained use of it, above, upon and beneath the surface.
I find this argument persuasive and I’m puzzled that the other eight disagree. Perhaps my professors will untangle this for me next year.
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