[WSBARP] Neighbor's sprinkler water damaging adjoining property owner's home

[Inge Fordham]

Jeff,

It sounds like PC may have claims for trespass and nuisance.  It seems the second exception to the common enemy doctrine applies (i.e., landowners may not collect and channel water, whether by gutter, culvert, street, or otherwise, onto a neighbor’s land in a manner or quantity different from the water’s natural flow).  Here is some analysis I provided a prior client on this topic (note: my client was defending allegations that water runoff from her property was damaging her neighbors’ foundation, patio, and landscaping).  Hope it helps.

Nuisance:

Nuisance is broadly defined under RCW 7.48.120 as “unlawfully doing an act, or omitting to perform a duty, which acts or omission either annoys, injures or endangers the comfort, repose, health or safety of others . . . or in any way renders other persons insecure in the use of property.”

Damages for nuisance are measured by the cost to abate the nuisance (i.e., the cost to divert the water from continuing to damage the neighbors’ property).  Here, the damages will likely be measured by the cost to divert the water around or through the neighbors’ property.  We don’t yet know what the cost of abatement will be.

Trespass:

Under RCW 4.24.630, “Every person who goes onto the land of another and who . . . wrongfully causes waste or injury to the land, or wrongfully injures personal property or improvements to real estate on the land, is liable to the injured party for treble the amount of the damages caused by the removal, waste, or injury.”  The elements of an action in trespass (which includes a trespass by water) are the intentional or negligent intrusion onto or into the property of another by the defendant.

The general rule in Washington is that water is a common enemy of all property owners, and therefore it’s every owner for herself when it comes to dealing with the common threat (this is called “the common enemy doctrine”).  To prevail on a claim for trespass (and nuisance) related to water, the claimant would need to demonstrate one or more exceptions to the common enemy doctrine.  There are three exceptions, two of which apply in this case.

First, landowners may not inhibit the flow of a naturally occurring water flow.  This exception does not apply here.

Second, landowners may not collect and channel water, whether by gutter, culvert, street, or otherwise, onto a neighbor’s land in a manner or quantity different from the water’s natural flow.  Your neighbors allege this exception applies because you are collecting water in your gutters and downspouts and channeling the water toward the neighbors’ property.

Third, landowners who alter the flow of surface water in any manner must act in good faith and avoid unnecessary damage to adjacent property.  Your neighbors allege that you are liable for clearing and constructing improvements upon the property without first preparing a drainage plan and a temporary site erosion and control plan, which were required by the short plat.

Damages for trespass are measured by the value of the property removed or injured, and for injury to the land, including the cost of restoration.  Here, in addition to the cost of diverting the water, your neighbors could claim damages for the value of the property and land that was injured and the cost of restoring the same.  This could include the cost of restoring their foundation, patio and/or landscaping.

The trespass statute allows treble damages.  In addition, if the neighbors prevail on their trespass claim, you could be liable for reimbursing them for reasonable costs, including but not limited to investigative costs, and reasonable attorneys’ fees and other litigation related costs.





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Inge A. Fordham | Attorney
Fordham Law, PLLC
3218 Sixth Avenue | Tacoma, WA 98406
Office: (253) 348-2657 | Mobile: (206) 778-3131
www.fordhamlegal.com<http://www.fordhamlegal.com>

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From: <wsbarp-bounces at lists.wsbarppt.com> on behalf of Jeff Davis <jeff at bellanddavispllc.com>
Organization: Bell & Davis
Reply-To: "jeff at bellanddavispllc.com" <jeff at bellanddavispllc.com>, WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Date: Tuesday, October 20, 2020 at 3:08 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Neighbor's sprinkler water damaging adjoining property owner's home

Listmates,

PC’s home is located below a neighbor who maintains a very lush garden.  The neighbor laid plastic as a ground cover, cutting slits in it to plant flowers and other bushes.  They also installed sprinklers and drip lines.  Water from the sprinklers flows over the plastic with much of it running down hill under PC’s deck and its foundation causing problems.  I know about the common-enemy doctrine but that involves the upstream property owner changing the course of natural water from rain, snow runoff, etc.  Here we have an artificially created situation.  What is a property owner’s duty to use their property so not to injure a neighbor?  Is this a nuisance, waste, or even trespass issue?  Your insight would be helpful.

Jeff Davis

W. Jeff Davis, Esq.
BELL & DAVIS PLLC
P.O. Box 510
Sequim WA 98382
Phone No.:(360) 683.1129
Fax No.: (360) 683.1258
email: info at bellanddavispllc.com<mailto:info at bellanddavispllc.com>
www.bellanddavispllc.com<http://www.bellanddavispllc.com/>

The information contained in this e-mail message may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any dissemination, distribution, or copying is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail the sender at info at bellanddavispllc.com<mailto:info at bellanddavispllc.com>  or call 360.683.1129

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