Halverson v. Skagit County
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 66171-5
Title of Case: Leonard and Jeanne Halverson
v.
Skagit County
File Date: 09/09/1999
Oral Argument Date: 05/27/1999
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
Snohomish County;
93-2-05201-2
Honorable David F. Hulbert, Judge.
JUSTICES
--------
Authored by Faith E Ireland
Concurring: Richard P. Guy
Charles Z. Smith
Charles W. Johnson
Barbara A. Madsen
Gerry L. Alexander
Philip A. Talmadge
Richard B. Sanders
Visiting Judge
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
David R. Major
Ste 3200
1201 3rd Ave
Seattle, WA 98101-3052
John R. Moffat
Deputy Prosecuting Atty
Skagit Co Prosc Atty Ofc
605 S 3rd St
Mount Vernon, WA 98273-3867
Charles K. Wiggins
Attorney At Law
241 Madison Ave N
Bainbridge Is, WA 98110
William C. Smart
Keller Rohrback
Ste 3200
1201 3rd Ave
Seattle, WA 98101
Mark A. Griffin
1201 3rd Ave Ste 3200
Seattle, WA 98101-3000
Counsel for Respondent(s)
Carl H. Hagens
Hagens Berman
1301 5th Ave Ste 2900
Seattle, WA 98101-2603
Steve W. Berman
Hagens Berman
1301 5th Ave Ste 2900
Seattle, WA 98101-2609
Anthony D. Shapiro
Rohan Goldfarb & Shapiro
1601 One Union Sq
600 University St
Seattle, WA 98101-3112
David M. Reeve
Kroschel Gibson Kinerk Reeve Llp
Suite 607
110 - 110th Ave N.E.
Bellevue, WA 98004
Glen A. Anderson
Assistant Attorney General
629 Woodland Sq Lp SE
Lacey, WA 98504
Amicus Curiae on behalf of Diking District #12
Eugene H. Knapp Jr.
Lane Powell Spears Lubersky
325 Pine Street
Mount Vernon, WA 98273-3851
David A. Svaren
Twede & Svaren Inc. P.S.
816 Fairhaven
P.O. Box 526
Burlington, WA 98233
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
LEONARD and JEANNE )
HALVERSON, husband and wife, )
et al., )
)
Respondents, )
)
v. ) 66171-5
)
SKAGIT COUNTY, ) En Banc
)
Appellant, )
) Filed September 9, 1999
and )
)
STATE OF WASHINGTON )
)
Respondents. )
)
IRELAND, J. This is a direct appeal from a jury verdict in an inverse
condemnation action. Over 100 residents of the Nookachamps area of Skagit
County, Washington, suffered flooding in November 1990. Claiming that the
County took their lands without just compensation contrary to the eminent
domain provisions of the Washington State Constitution,1 Plaintiffs brought
suit against Skagit County.2
We hold Plaintiffs failed to plead a viable theory for imposing
liability on the County for the levee-induced flooding because the County
did not own the levees or property on which they were built. Furthermore,
we hold that the common enemy doctrine provides a viable defense against
any such liability.3 We reverse the verdict, remand for dismissal, and
order that the trial court's writ of mandamus be vacated.
BACKGROUND
Before the Skagit River empties into Skagit Bay on the Puget Sound, it
flows through 90,000 acres of property lying in a floodplain. The Skagit
River delta floodplain is approximately 11 miles across an east-west axis,
and 19 miles along a north-south axis. The Nookachamps area, located
upstream from the City of Mount Vernon and across the river from the City
of Burlington, lies in the Skagit floodplain and has historically been
subject to flooding.4 Pls.' Responsive Br. on Appeal and Br. in Supp. of
Cross-Appeal at 8 (hereinafter Pls.' Responsive Br.). The Skagit River has
reached flood stage 41 times between 1900 and 1991, an average of once
every 2.2 years.5 Prior to 1990, severe floods in the region were recorded
in 1815, 1856, 1897, 1909, 1917, 1921, 1949, 1951, 1975, 1979, 1980, and
1982.6
To combat the flooding, landowners along the Skagit River began building
dikes as early as 1863. In 1895, the Legislature passed legislation
allowing landowners to organize and create public diking districts. Laws
of 1895, ch. 117 (codified at RCW 85.05). These diking districts are
independent of any other governmental authority. They have the power of
eminent domain, RCW 85.05.070, the power to assess taxes against district
properties proportionate to the benefits the properties receive from the
creation of the dikes, RCW 85.05.075, and the power to issue bonds to fund
construction of the dikes. RCW 85.05.078. By 1990, 16 diking districts
had been created to maintain approximately 56 miles of levees and 39 miles
of sea dikes in the Skagit River delta.
A description of the location of the Nookachamps area is helpful to
understand Plaintiffs' claims. A Burlington Northern Railroad bridge
crosses the Skagit River near Mount Vernon. Diking Districts No. 12 and
No. 17 maintain levees upstream from the bridge. These two districts exist
because local property owners organized, taxed themselves, formed the
districts, and built dikes to protect their lands. Diking District No. 12
owns the dikes on the north side of the river, and Diking District No. 17
owns dikes on the south side. Diking District No. 12's levees are located
between 50 and 1,000 feet from the Skagit River's banks. The river waters
do not come into contact with the levees until the waters leave the banks
of the river channel.7
The Nookachamps area lies on the south banks of the river, upstream from
both the railroad bridge and Diking District No. 17, and across the river
from dikes owned by Diking District No. 12. Landowners of the Nookachamps
area have never utilized the available statutory process for creating a
diking district in their own area. As a result, the portion of the south
side of the Skagit River along the Nookachamps area is unprotected from
floodwaters. The downstream railroad bridge, the downstream levees, and
the levees across the river from the Nookachamps area form a constriction
during high floodwaters. The County does not contest that this
constriction causes floodwaters to back upstream and flow into the low-
lying Nookachamps area.8
In November 1990, the Skagit River flooded twice, causing damage to various
homeowners living on this historic floodplain.9 In response, 118
plaintiffs brought this inverse condemnation action against Skagit County
and Diking Districts Nos. 12 and 17.10 The districts were voluntarily
dismissed from the action, leaving the County as the sole defendant.11
Nonetheless, Plaintiffs pursued their action against the County, alleging
the County acted in concert with the diking districts in the maintenance,
improvement, and operation of the diking system. The County's actions
allegedly caused an increase in the amount of flooding experienced on
Plaintiffs' lands. Plaintiffs claimed this levee-induced flooding
constituted an inverse condemnation - that is, a taking without payment of
just compensation in violation of article I, section 16 (amendment 9) of
the Washington State Constitution. Plaintiffs did not assert a federal
takings claim.
In addition to disputing Plaintiffs' theory of liability, the County
brought third-party contribution and indemnity claims against the State of
Washington.
At trial, Plaintiffs' case was based solely on the theory that their
properties were flooded more severely than they would have been had there
been no levees along the Skagit River. Specifically, Plaintiffs state that
"this case is not about the damage, if any, that plaintiffs would have
suffered by natural flooding absent the levees. It is about the
incrementally increased levee-induced flooding of between 11/4 feet to 4 feet
caused by the levee system . . . ." Pls.' Responsive Br. at 4 (emphasis
added). The County first argued it was not liable for the construction and
operation of the levees owned by independent diking districts. The County
argued that if it was responsible for the levees, despite its lack of
ownership, then it was immune from liability because (1) it had obtained a
prescriptive easement to cause such flooding; (2) it had the right to cause
such flooding under the common enemy doctrine; and (3) it was immune from
liability under RCW 86.12.037.12
The trial judge excluded the County's immunity defense and its prescriptive
easement and common enemy jury instructions, and instructed the jury on
joint and several liability as to a tort theory of "acting in concert."
The jury found for Plaintiffs and awarded over $1.62 million in damages.
Skagit County was found 69 percent liable while the State of Washington was
found liable for 31 percent. The trial court then awarded over $1.3
million in prejudgment interest, $2.8 million in attorneys' fees, and
$400,000 in expenses, bringing the total judgment against Skagit County and
the State of Washington to $6.3 million. In addition, the trial court
issued a writ of mandamus, compelling the County to comply with the
Shoreline Management Act of 1971, chapter 90.58 RCW, the State
Environmental Policy Act of 1971, chapter 43.21C RCW, and numerous county
ordinances.
ANALYSIS
First Issue: Is Skagit County solely or jointly and severally liable for
damages caused by levees owned by independent dike districts?
Plaintiffs claim the County is either solely or jointly and severally
liable for levee induced flooding. The gravamen of Plaintiffs' claim
against the County, as set forth in jury instruction 16, is that
Skagit County, either alone or in concert with others, interfered with each
plaintiff's use and enjoyment of their personal or real property by
diverting overbank floodwater onto each plaintiff's property during
significant flood events.
Clerk's Papers (CP) at 1,850. In contrast, the County claims the diking
districts are statutorily independent entities which built, and are
responsible for maintaining, the dikes that allegedly caused Plaintiffs'
flooding. The County claims it cannot be held liable for the levee-induced
flooding because the County did not build the dikes or own the property on
which they were built. The County is correct. Plaintiffs' theory of
liability against the County is legally insufficient and contrary to
established inverse condemnation law recently discussed in Phillips v. King
County, 136 Wn.2d 946, 968 P.2d 871 (1998).
In Phillips, landowners sued the county and a private developer when
drainage water from the development had been channeled across county
property and onto the plaintiffs' land. The Court of Appeals found the
county potentially liable because it had permitted and approved the
development's drainage system, and because the county assumed ownership and
maintenance of the drainage system once the development was completed. See
Phillips, 136 Wn.2d at 959-60 (discussing the appellate court's decision).
This court disagreed with the Court of Appeals, and the analysis is
informative:
The question of when legal liability attaches to one's acts is a policy
question, and legal liability is always to be determined on the facts of
each case upon mixed considerations of logic, common sense, justice,
policy, and precedent. Rains {v. Department of Fisheries}, 89 Wn.2d {740,}
743-44{, 575 P.2d 1057 (1978)}. A governmental entity does not become a
surety for every governmental enterprise involving an element of risk.
Bodin v. City of Stanwood, 130 Wn.2d 726, 740, 927 P.2d 240 (1996).
Phillips, 136 Wn.2d at 965. Thus, Phillips held the mere approval of a
private developer's drainage plan did not give rise to a cause of action
for inverse condemnation. Id.
Phillips also addressed the fact that the county assumed ownership of the
development's drainage system upon completion of the development. This
court held the ownership of the drainage facilities fails to create
liability when the alleged taking is attributed to the design of the system
because the design and construction were not acts attributable to the
county. Phillips, 136 Wn.2d at 966:
The County and amici cities argue they should not be liable for a design
defect in a developer's system simply because they accept the system after
construction in order to provide proper maintenance in the future. We
agree. To have a taking, some governmental activity must have been the
direct or proximate cause of the landowner's loss.
(Citations omitted.) It is undisputed that the levee system in this case
has existed in some form for this entire century. There was no proof in
this case that the County designed the levee system.
Further, Phillips discussed when a governmental entity may be liable as an
owner of public lands or public works. In that case, a grant of summary
judgment for King County was reversed, and the matter was remanded for the
fact-finder to determine whether the county, as a property owner, should be
responsible for a "proprietary action" respecting the county's management
of its public land. Phillips, 136 Wn.2d at 967. The proprietary action in
that case was that the county allowed the developer to install part of the
drainage system across a county-owned right-of-way. In the instant case,
however, Skagit County is not the owner of the levees or the property on
which the levees have been built.
Phillips recognized that under certain facts the county might be liable for
failure to properly maintain a public drainage system. Phillips, 136 Wn.2d
at 966 (citations omitted). In the instant case, however, Plaintiffs'
complaint is not failure to maintain the levee system, but rather that
maintenance, repair, and improvement of the system gives rise to inverse
condemnation liability against the County. The record does provide
evidence that the County has assisted the diking districts in the
maintenance, repair, and improvement of the levee system. Specifically,
Plaintiffs' expert reviewed the County's activities on levee projects in
the 1980s and 1990s and
{c}oncluded that Skagit County performed virtually every aspect of the
improvement projects, from developing planning, engineering, design,
surveying, preparing grant applications, contracting, paying and assisting
with permits.
Pls.' Responsive Br. at 15 n.31 (citing Report of Proceedings (RP) 930-32).
Plaintiffs claim that the County's actions were instrumental in improving
the levee system from an 8-year flood protection level in the 1960's to a
25 year flood protection level.
Despite Plaintiffs' claim, such maintenance, repair, and even
improvement activities fail to give rise to liability for the damages
asserted by Plaintiffs. The relief sought by Plaintiffs is not for the
damage caused by the difference between a levee system at an 8-year
protection level and a system with a 25 year protection level. Rather,
Plaintiffs sought relief for the difference between the flood damage
attributable to the levees and the flood damage that allegedly would have
occurred without any levees at all. This is not simply a problem of
calculating damages. Plaintiffs' theory of the case is fatally flawed by
the total lack of evidence of proximate cause. While Plaintiffs' inverse
condemnation claim rests upon the alleged damage caused by the mere
existence of the levees, they offered no evidence the County actually or
proximately caused the levee system to come into existence.
Plaintiffs attempt to get around this proximate cause dilemma by using
a novel approach, borrowing a theory of joint and several liability from
tort law. See chapter 4.22 RCW (contributory fault statute). Over the
County's objections, the trial court accepted Plaintiffs' "acting in
concert" theory of joint liability, and accordingly instructed the jury.
Two of the 72 jury instructions specifically define the Plaintiffs' claim
for joint liability:
INSTRUCTION NO. 18
A party is liable for the conduct of another party if both were acting
in concert with respect to a particular act or omission and that act or
omission was a proximate cause of the plaintiff's injuries.
INSTRUCTION NO. 19
A person or entity acts in concert with another if it:
(a) acts in accordance with an agreement with another to cooperate in
a particular course of conduct, or to accomplish a particular result, or
pursuant to a common design with another. The agreement may be expressed
in words or implied from the conduct itself; or
(b) knows that the other person's or entity's conduct constitutes a
taking or damaging and gives substantial assistance or encouragement to the
other to so conduct itself; or
(c) gives substantial assistance to the other person or entity in
accomplishing a taking or damaging and its own conduct, separately
considered, constitutes a taking or damaging to any plaintiff.
CP at 1853-54.
Under these instructions, the jury could have found the County liable if it
simply gave substantial assistance or encouragement to the diking districts
in building or raising their dikes. Plaintiffs argue that it is
appropriate to recognize a hybrid between eminent domain and tort theories.
Plaintiffs propose imposing tort theory for inverse condemnation cases
despite conceding that Kincaid v. City of Seattle, 74 Wash. 617, 620-21,
134 P. 504 (1913), provides the general principle that the State, when
taking property for public use, "goes not as a trespasser . . . {or} . . .
a wrongdoer." Pls.' Responsive Br. at 50-51. Plaintiffs rely on this
court's statement in McPherson Bros. Co. v. Douglas County, 150 Wash. 221,
224, 272 P. 983 (1928), that "the general principle in Kincaid 'cannot be
invoked by the State, save when the latter is proceeding in accordance with
law and along constitutional lines.'" Pls.' Responsive Br. at 51 (also
citing Kincaid, 74 Wash. at 620-21). Plaintiffs argue that
{a}s the McPherson court held a governmental taking of private property
without first paying just compensation as required under Article 1 sec. 16
of the Washington State Constitution, is "unlawful and in violation of {the
owner's} constitutional rights."
Pls' Responsive Br. at 51 (second alteration in original) (quoting
McPherson, 150 Wash. at 225).
Despite these arguments, McPherson is easily distinguishable because there
the plaintiffs did not seek inverse condemnation, but rather, sought an
injunction against the county's pending condemnation action. McPherson,
150 Wash. at 222-24. Moreover, if a hybrid of eminent domain and tort were
recognized, this court would be required to recognize the County's
statutory immunity under RCW 86.12.037.13 Such immunity is inapplicable
only when the alleged violation is solely based on constitutional grounds.
See Paulson v. Pierce County, 99 Wn.2d 645, 652, 664 P.2d 1202 (1983).
Providing a tort or quasi-tort remedy might also implicate the general
county immunity statute currently set forth in chapter 4.96 RCW, titled
"Actions Against Political Subdivisions, Municipal and Quasi-Municipal
Corporations." While it might be justified in the appropriate case to
recognize an inverse condemnation action as a hybrid of eminent domain and
tort theories, such an approach would not benefit this case given the lack
of proximate cause between the County's alleged actions and the mere
existence of the levees.
The "acting in concert" tort theory submitted to the jury, therefore, does
not state the correct standard for liability in an inverse condemnation
action, as set forth in Phillips. Phillips did not create a new standard
for governmental liability in an inverse condemnation action, it merely
followed prior case law. "To have a taking, some governmental activity
must have been the direct or proximate cause of the landowner's loss."
Phillips, 136 Wn.2d at 966 (citing Lambier v. City of Kennewick, 56 Wn.
App. 275, 283 n.4, 783 P.2d 596 (1989); Peterson v. King County, 41 Wn.2d
907, 252 P.2d 797 (1953); and Gaines v. Pierce County, 66 Wn. App. 715,
726, 834 P.2d 631 (1992)). Plaintiff's "acting in concert" standard
clearly falls short of the active, proprietary participation -
participation without which the alleged taking or damaging would not have
occurred - which is required under Phillips before liability can attach in
this inverse condemnation action. See Gaines, 66 Wn. App. at 726.
In sum, Plaintiffs' claims rest solely on the mere existence of levees
which are owned by independent diking districts. These diking districts
are "separate and distinct corporation{s}" conducting their activities
"free from the control of county authorities." Bale v. Floyd, 199 Wash.
503, 505, 91 P.2d 1025 (1939); cf. RCW 85.05.010 (diking districts have the
power to sue and be sued). The County did not build, own, or manage these
levees or the property upon which they were built. The County's repairs or
improvements, even if in a concerted effort with the independent diking
districts, do not, as a matter of law, render them liable for the mere
existence of those levees. Furthermore, Plaintiffs' "acting in concert"
theory is entirely inapplicable to this inverse condemnation action. As a
result, Plaintiffs fail to state a valid legal theory for imposing
liability against the County. We reverse and remand this case to the trial
court for dismissal. Additionally, having found no liability against the
County, there is no basis for the County's contribution claim against the
State because the claim against the State is derivative.
Second Issue: Does the common enemy doctrine also preclude Plaintiffs from
recovering any damages in this case?
Even if Plaintiffs had stated a valid legal claim for imposing
liability against the County, a valid defense exists. If the County had
been legally responsible for the existence of the levees, then the County
should have been able to raise the common enemy doctrine as a defense to
this action. We find the defense controlling.
The trial judge disallowed the County's reliance on the common enemy
defense when it refused the County's proposed jury instruction:
It is a defense in this action that constructing, maintaining, and
fortifying the levees in and around the cities of Burlington and Mount
Vernon is permitted by the common enemy doctrine.
The common enemy rule allows a landowner or one acting for the landowner to
repel surface water from that landowner's property with dikes, regardless
of the fact that the water may enter upon and injure adjoining land. Once
water overtops the banks of the river, it becomes surface water. If you
find that the dikes were constructed or maintained for the purpose of
repelling surface water, then you cannot find the County liable for a
taking.
CP at 2,277 (footnote omitted).14 On appeal the County reasserts its claim
that, even if it was legally responsible for the existence of the levees,
it should have been able to raise the common enemy doctrine as a defense to
this action. The County argues that the common enemy doctrine would
provide a complete defense to its liability. The County is correct.
For over a century, Washington courts have adhered to the common enemy
doctrine. See DiBlasi v. City of Seattle, 136 Wn.2d 865, 875, 969 P.2d 10
(1998); Cass v. Dicks, 14 Wash. 75, 78, 44 P. 113 (1896). This principle
"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, 136 Wn.2d at 875 (quoting Cass, 14 Wash. at 78). If a
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}." Cass, 14
Wash. at 78.
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. Under long
standing Washington law,
{w}aters escaping from the banks of a river at times of flood are surface
waters, and are waters which an owner of land may lawfully protect against
by dikes and fills on his own property, even though the effect is to cause
an increased flow of water on the lands of another to the damage of his
lands.
Morton v. Hines, 112 Wash. 612, 617, 192 P. 1016 (1920); see also DeRuwe v.
Morrison, 28 Wn.2d 797, 184 P.2d 273 (1947); Harvey v. Northern Pac. Ry.
Co., 63 Wash. 669, 674-75, 116 P. 464 (1911); Cass, 14 Wash. at 78; 2 Henry
Philip Farnham, Waters and Water Rights 2558-2569, sec.sec. 879-880b
(1904). Although early Washington cases applying the common enemy doctrine
broadly classified floodwaters as surface waters, Harvey, 63 Wash. at 674-
76; Cass, 14 Wash. at 78, later cases have modified this broad statement.
See Sund v. Keating, 43 Wn.2d 36, 42-46, 259 P.2d 1113 (1953); see also
Marshland Flood Control Dist. v. Great Northern Ry. Co., 71 Wn.2d 365, 428
P.2d 531 (1967).
Sund held that floodwaters still flowing within a defined "flood channel"
cannot be diverted out of the channel without incurring liability for
resulting damages, thus, partially limiting those earlier cases which
classified any floodwaters as surface waters. See Sund, 43 Wn.2d at 44-45.
While Sund narrows the concept of surface waters, it does not change the
rule that landowners seeking to protect against surface waters can build
levees without incurring liability for damages, even when those levees keep
floodwaters within the confines of a stream. See Id.15
Plaintiffs argue the common enemy doctrine does not apply here because the
floodwaters repelled by the levees remain in a defined channel. In
addition to offering no proof regarding the Skagit River's "defined flood
channel," Plaintiffs' argument completely misses the point of the common
enemy doctrine. The common enemy doctrine's purpose is to provide
landowners with the ability to prevent damage to their property caused by
flooding water. The resulting illogic of Plaintiffs' argument is that a
landowner who is damaged by surface waters loses the common enemy defense
as soon as they build levees which repel those surface waters back into the
river channel.
If it were responsible for the existence of the levees, the county still
would not lose the ability to invoke the common enemy doctrine simply
because the water, after being repelled by the levees, returns to the
defined river channel. If the character of the water after being repelled
by the levees is controlling on whether the common enemy doctrine applies,
no levee builder could ever rely on the defense. Under Plaintiffs' theory,
no dike district may ever build dikes to protect its landowners without
paying substantial damages to those landowners who choose not to build
levees to protect their own property.
In formulating the rule enunciated in Sund, the court considered a
flood that did not exceed in size those floods which ordinarily occurred in
that region. A case note emphasizes the importance of this aspect of the
case:
The courts have shown a decided reluctance to apply any of the above tests
{to determine what is the watercourse} where the area innundated {sic} is a
broad alluvial valley. In one such case . . . the court indicated that a
valley varying in width from one mile to one mile and a half could not
properly be called a watercourse. Another recognized the rule allowing a
landowner to protect himself without liability as to extraordinary floods
but indicated it was highly unreasonable to reach the result that the whole
Mississippi valley was a part of the watercourse.
Lawrence S. Moore, Washington Case Law-1953, Real Property Riparian Rights
Floodwaters and the Common Enemy Doctrine, 29 Wash. L. Rev. 87, 160 (1954)
(footnotes omitted).
In their response, Plaintiffs note that
once {surface} waters have "joined the course of a stream," and have
"become subject to its current," they "{cease} to possess the
characteristics of diffused or vagrant surface waters and become part of
the stream . . . ." Sund v. Keating, 43 Wn.2d 36, 42, 259 P.2d 1113
(1953). Waters flowing through natural watercourses, like the Skagit
River, are not surface waters.
Pls.' Responsive Br. at 45 (footnotes omitted). This response fails to
acknowledge that the waters against which the diking districts built dikes
were surface waters, because without those dikes the waters were no longer
subject to the current of the Skagit River and would have fanned out
throughout the entire floodplain.
In the instant case, the evidence presented at trial supports classifying
the overbank floodwater from the Skagit River as surface water. The
floodplain, covering over 90,000 acres, consists of "{t}he entire floor of
the Skagit River Valley, the deltas of the Samish and Skagit Rivers, the
reclaimed tidelands adjoining the Skagit, Samish, and Stillaguamish River
Basins . . . ." Ex. 49, at 2-2 to 2-3. Historically, the Skagit River's
floodwaters have not only fanned out over the entire Skagit River Valley,
but have actually departed from the Skagit River basin and moved into
drainage basins of entirely different rivers. This conclusion
is supported by Plaintiffs' own expert.16
Relying on the principles endorsed by Sund, the County asserts it is not
liable for Plaintiffs' damages because the levees were merely constructed
to protect against these overbank floodwaters. Considerable evidence
supports this assertion. Dike District No. 12's dikes are all located
approximately 50 feet to 1,000 feet away from the river bank. As long as
the river remains within its banks, it does not contact the dikes and,
thus, the levees have no influence on the river. The purpose of the dikes
is to control escaping floodwaters and not to have any
effect on nonflooding river water.17
Given these facts, the overbank floodwaters guarded against by these levees
qualify as surface water. Plaintiffs' own expert testified that without
levees the floodwater has historically moved into the drainage basins of
an entirely different river. This fact lends credence to our conclusion
that the Skagit River's floodwater became severed from the river's main
current and was, thus, surface water.
Plaintiffs attempt to rely on Colella v. King County, 72 Wn.2d 386, 433
P.2d 154 (1967), to say that even if the waters are surface waters, such
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.'" Pls.' Responsive Br. at 46 (quoting Colella,
72 Wn.2d at 390). This is a recognized exception to the common enemy
doctrine. See DiBlasi v. City of Seattle, 136 Wn.2d 865, 874, 969 P.2d 10
(1998). Colella and DiBlasi, however, are entirely distinguishable.
In Colella, King County collected surface water from a road and
artificially diverted it from its natural flow through a culvert into a
ravine on the plaintiff's property. Colella, 72 Wn.2d at 390. Similarly,
DiBlasi involved a municipality's liability for artificial diversion of
water through its streets. DiBlasi, 136 Wn.2d at 879. In contrast here,
however, the levees do nothing to artificially collect and discharge
floodwaters. The levees along the Skagit River simply repel overbank
floodwaters back to the flooded river channel. If this repelling action of
a levee constitutes artificial channeling, then the exception would swallow the
rule and common enemy doctrine could never be invoked.
In sum, the levees constructed protected against overbank floodwaters which
were surface waters and, thus, were of the type which the landowners could
properly protect against. Under the common enemy doctrine, the landowners
were entitled to build levees to repel these surface waters back into the
river channel. Finally, the levees here did not artificially collect and
discharge the floodwaters, as proscribed under Diblasi, 136 Wn.2d at 879,
and Colella, 72 Wn.2d at 389. Consequently, we find that had the County
been responsible for the existence of levees, the common enemy doctrine
would have provided a defense to the County's liability.
CONCLUSION
Finding Plaintiffs have failed to state a valid legal claim for imposing
liability on the County for the existence of the dikes, we see no reason to
address the additional issues raised by the parties in this case. Further,
even if it was responsible for the existence of the levees, the County
would have a defense to liability under the common enemy doctrine. We
reverse the verdict and remand
for dismissal of the action. Additionally, the trial court's writ of
mandamus is vacated.
1Article I, section 16 (amendment 9).
2Both Skagit County and two diking districts were named as defendants. The
County subsequently brought third-party contribution and indemnity claims
against the State of Washington and Burlington Northern Railroad. Although
Burlington Northern and the diking districts were dismissed from the suit,
the County and the State of Washington were found liable.
3Because these holdings are determinative, it is unnecessary to discuss the
various additional claims raised by the parties.
4Pls.' Responsive Br. on Appeal and Br. in Supp. of Cross-Appeal at 8
(hereinafter Pls.' Responsive Br.)
5Clerk's Papers (CP) at 5,463.
6Ex. 49, at 2-5 to 2-7.
7Report of Proceedings at 12,578.
8CP at 5,519.
9CP at 5,493.
10CP at 5,489-530.
11CP at 5,487-88.
12RCW 86.12.037, titled "Liability of county or counties to others," states,
in part,
No action shall be brought or maintained against any county alone or when
acting jointly with any other county under any law, its or their agents,
officers or employees, for any noncontractual acts or omissions of such
county or counties, its or their agents, officers or employees, relating to
the improvement, protection, regulation and control for flood prevention
and navigation purposes of any river or its tributaries and the beds, banks
and waters thereof . . . .
13See footnote 12, supra.
14The portion of the instruction defining surface waters as all overbank
waters may have been incomplete. See Sund v. Keating, 43 Wn.2d 36, 42-46,
259 P.2d 1113 (1953) (waters escaping the banks of a river and flowing into
a defined flood channel are not surface waters). Nonetheless, any problem
with this instruction is of no consequence here because there is no
evidence in the record that the overbank floodwaters flowed within a
defined flood channel. To the contrary, even Plaintiffs' expert testified
that, absent these levees, the floodwaters would have diffused over the
entire floodplain, escaping into an entirely separate river drainage basin.
RP at 894; see also discussion below.
15The court in Sund sought to reconcile an apparent conflict with earlier
case law concerning surface waters by stating "{t}his holding is not
inconsistent with the line of authority established in Cass v. Dicks,
supra, where waters which have escaped over the banks of a stream and have
become diffused and vagrant surface waters (no longer properly a part of
the watercourse), were properly classified as surface waters." Sund, 43
Wn.2d at 44-45.
16On this subject, Plaintiffs' expert, Dr. Mutter, testified,
{I}f there were no levees, the water would - rather than being confined by
the corridor as we see - rather than being confined by these narrow
corridors, the flow would fan out. In fact, this entire delta was created
in earlier times by the channel moving pretty much wherever it felt like,
and it would be free to do so again. Flow would fan out over the delta at
very shallow depth.
At higher flows there's always the possibility of diversions from even as
far upstream as the Sterling area, the Samish Basin and Padilla Bay.
That's happened historically also.
RP at 894. Therefore, even according to Dr. Mutter, the floodwater in
question would not only fan out over the floodplain, it would also overflow
into the drainage basin of a different river, the Samish.
17RP at 12,578.