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

[Andrew Hay]

I think you have nuisance and trespass – here is some discussion of a nuisance by drainage alteration from a neighboring property.  Maybe some helpful case law.


II.           ARGUMENT IN RESPONSE TO MOTION FOR SJT - LIABILITY[1]


A.     In cases of injury to property, when the injury is ongoing the statute of limitations only acts as a limitation on damages claims for damages occurring more than three years before suit.

              The City’s argument for a free pass from tort liability is based on the statute of limitations.  First they claim this is not really a trespass or nuisance claim, but a negligence claim.  This argument flies in the face of decades of Washington authority, out of state case law, and learned treatises which identify these type of cases as trespass and nuisance cases.
              This analysis in trespass, nuisance and negligence cases goes back to 1901 in Doran v. City of Seattle, 24 Wash. 182, 64 P. 230 (1901).  In Doran, the plaintiff claimed the city had negligently erected and maintained a bulkhead in front of the plaintiff's house. Over a period of time the bulkhead slid and eventually pressed up against the house. The defendant argued that the statute of limitations began to run from the inception of the injury, and that all damages both past and future must be included in the same suit.
              Rejecting this approach, the Court instead approved a rule permitting recoveries in such cases "'by successive actions until the wrong or nuisance shall be terminated or abated.'" Doran at 188.  It would be inequitable, the court reasoned, to estop a person from obtaining damages "for injuries which might eventually become burdensome, because he was not litigious enough to plunge into a lawsuit over a trifling matter." Doran at 188-89.
              In our case that is the situation.  The injury appears at first quite small.  Water is forced to drain a different direction.  Occasionally deep water pools in front of the building.  Because it is a commercial property, this is only noticeable in storm conditions during business hours.  The City made the long term impact difficult to see by removing the flooding from the street and making some improvements in the area of primary injury.  So the case is just like Doran in that the injury is at first not dramatic.
              However over time, the problems compound.  Tenants continue to remark about the pooling.  The basement floods continue.  Tenants leave.  The City’s repair does not achieve results.  The City begins to complain about the effects of water draining off the west side of the property.  Finally, the Sabotkas hire an engineer and learn the City improperly redirected water and in an uncontrolled manner inconsistently with civil engineering standards, resulting in the problems they experienced on their property.  So this case bears a high resemblance to Doran.
              The City’s argument that this is not technically a trespass is a red herring.  The City rather cynically points out that the harm they caused (blocking the water from leaving the Sabotka property) is not actionable as a trespass because the blocking wasn’t the result of their acts on the Sabotka property.
              A person is liable for trespass if he or she intentionally (1) enters or causes another person or a thing to enter land in the possession of another or (2) remains on the land or (3) fails to remove from the land a thing that he or she is under a duty to remove. See Bradley v. Am. Smelting & Ref. Co., 104 Wash.2d 677, 681-84, 709 P.2d 782 [164 Wn.2d 674] 1985) (applying Restatement (Second) of Torts § 158).
              The acts of the City are akin to damming a stream at the edge of a neighbor’s property and causing the water to back up on the neighbor’s property.  This meets prong (3) (failing to remove a thing that he or she is under a duty to remove).  It also arguable meets prong (1) causing a thing to enter the land in the possession of another because the City causes water to flow to new places on the Sabotka property.
              Thus a trespass exists.  Nuisance exists as well.
              Where a municipal corporation constructs a culvert for the passage of the waters of a watercourse or natural drain, it will be liable for damage caused by the escape of water therefrom to adjacent lands due to a negligent construction of the culvert, or its inadequacy (according to the rule in many states) to carry away water ordinarily coming into it, or for failure of the municipality to remove obstructions therein; and a culvert obstructing a watercourse, to the injury of riparian owners, is a nuisance, and damages are recoverable.

McQuillin, Municipal Corporations, 2d Ed., Vol. 6, Sec. 2877 (emphasis added).  This clearly establishes the nature of this particular type of claim as a nuisance.
              As a practical matter the distinction is unnecessary.
              Today, with the abandonment of the old procedural forms, the line between trespass and nuisance has become "wavering and uncertain." The basic distinction is that trespass can be defined as any intentional invasion of the plaintiff's interest in the exclusive possession of property, whereas a nuisance requires a substantial and unreasonable interference with his use and enjoyment of it. That is to say, in trespass cases defendant's conduct typically results in an encroachment by "something" upon plaintiff's exclusive rights of possession.

              The first and most important proposition about trespass and nuisance principles is that they are largely coextensive. Both concepts are often discussed in the same cases without differentiation between the elements of recovery....

Bradley v. American Smelting and Refining Co., 104 Wn.2d 677, 684-85, 709 P.2d 782 (Wash. 1985)
              So the City’s argument here is not only incorrect, but a distinction without a difference.  What we learn from Fradkin v. Northshore Util. Dist., 96 Wash.App. 118,125-26, 977 P.2d 1265 (1999) is that the key distinction is whether the “intrusive condition” – be it the result of trespass, nuisance, negligence or otherwise – is reasonably abatable.
              Where the intrusive condition is the reasonably abatable is the primary characteristic that distinguishes a continuing trespass from a permanent trespass.  A trespass is abatable, irrespective of the permanency of any structure involved, so long as the defendant can take curative action to stop the continuing damages. The condition must be one that can be removed "without unreasonable hardship and expense."  If an encroachment is abatable, the law does not presume that such an encroachment will be permanently maintained. The trespasser is under a continuing duty to remove the intrusive substance or condition. Periodic flooding due to defective construction of a drainage system is a recognized fact pattern in the category of continuing trespass.

Fradkin at 125-26.

              This case cannot be any more directly on point with this final quote:

              Periodic flooding due to defective construction of a drainage system is a recognized fact pattern in the category of continuing trespass.

Fradkin at 126.

              The reasoning for this is well stated in Fradkin.

              Decades later, in Bradley v. American Smelting & Refining Co., the Supreme Court applied the theory of continuing trespass to pollution of neighboring property by airborne particulates emanating from the smelter company. "Assuming that a defendant has caused actual and substantial damage to a plaintiff's property, the trespass continues until the intruding substance is removed." The three-year statute of limitations[2] runs from the date each successive cause of action accrues as manifested by actual and substantial damages. The discovery rule has no application to a claim of continuing trespass. It would be inequitable, [977 P.2d 1270] the court reasoned, to expose defendants "to claims running back for untold years when the injury many years back may have been inconsequential and the very existence of a cause of action vague and speculative."

              Bradley and Doran are consistent with authority in other jurisdictions holding that the reasonable abatability of an intrusive condition is the primary characteristic that distinguishes a continuing trespass from a permanent trespass. A trespass is abatable, irrespective of the permanency of any structure involved, so long as the defendant can take curative action to stop the continuing damages.  The condition must be one that can be removed "without unreasonable hardship and expense."  If an encroachment is abatable, the law does not presume that such an encroachment will be permanently maintained.  The trespasser is under a continuing duty to remove the intrusive substance or condition.  Periodic flooding due to defective construction of a drainage system is a recognized fact pattern in the category of continuing trespass.

              The Conservation District report provides evidence that the waterlogged condition of Fradkin's property is, like the pressure of the bulkhead in Doran and the emission of airborne particulates in Bradley, abatable rather than permanent. The report recommended the installation of underdrains through the sewer drain area, the construction of a small swale, soil replacement, regrading and reseeding. Earlier, Northshore itself attempted to fix the problem by sending a crew to work on the land. From such evidence, a jury could conclude that the bog-like condition is reasonably abatable even though the sewer line itself might be viewed as a permanent structure.
       Thus, it remains an issue of fact for the jury to decide whether Northshore trespassed, and if so, whether the trespass was continuing or permanent. If the jury finds a continuing trespass, Fradkin is not time-barred from recovering damages occurring after May 12, 1994.

Fradkin at 125-26.

              We know from the evidence currently before the court that the condition is reasonably abatable.  A trench drain can be installed for $40,000.  The drain could have been installed for less at the time of initial construction and – indeed – it should have been according to civil engineering standards.
So the City’s argument that these claims are not trespass or nuisance claims is incorrect.  Further the City’s claim that these claims are time-barred is misplaced.  Where there is continuing nuisance or trespass, the theory of continuing torts applies from the date of each successive injury – in our case, each time water is blocked from leaving the property, sits in pools and depressions where it can seep into the building and cause injury and is directed in an uncontrolled manner down the west side of the Sabotka property.
              Washington recognizes the theory of continuing torts. See Island Lime Co. v. Seattle, 122 Wash. 632, 211 P. 285 (1922) (nuisance); Doran v. City of Seattle, 24 Wash. 182, 183, 64 P. 230 (1901) (negligence); Fradkin v. Northshore Util. Dist., 96 Wash.App. 118, 977 P.2d 1265 (1999) (trespass). When a tort is continuing, the "statute of limitations runs from the date each successive cause of action accrues as manifested by actual and substantial damages." Fradkin, 96 Wash.App. at 125, 977 P.2d 1265 (emphasis added). A tort is continuing if the intrusive condition is reasonably abatable and not permanent. Id. The tort continues until the intrusive substance is removed. Bradley v. Am. Smelting & Refining Co., 104 Wash.2d 677, 693, 709 P.2d 782 (1985).
              Once the Sabotkas establish that the condition is reasonably abatable, they establish a continuing tort.  The evidence does establish that the condition is abatable through installation of a trench drain connected to the City’s storm drain located under Highway 99.
              Thus the Sabotka analysis that the City’s acts are a continuing tort is supported by Washington cases such as Fradkin, Bradley and Doran and treatises such as McQuillan’s Municipal Corporations.
              Other states and authorities also recognize that the City’s acts are a continuing tort.  To begin with there is the definition of an abatable nuisance form the Restatement of Torts
              Restatement – Nuisance - abatable

              [a] possessor of land is subject to liability for a nuisance caused while he is in possession by an abatable artificial condition on the land, if the nuisance is otherwise actionable, and

                             (a) the possessor knows or should know of the condition and the nuisance or unreasonable risk of nuisance involved, and
                             (b) he knows or should know that it exists without the consent of those affected by it, and
                             (c) he has failed after a reasonable opportunity to take reasonable steps to abate the condition or to protect the affected persons against it.

Restatement (Second) of Torts § 839 (1979).

              Other states treat these claims as nuisances and apply the continuing injury rule when water is blocked or redirected.
The levees, as constructed by defendants, constitute a nuisance to plaintiff. … [W]here one creates a nuisance, and permits it to remain, so long as it remains it is treated as a continuing wrong, and giving rise, over and over again, to causes of action." (Simon v. Neises (1964), 193 Kan. 343<http://lawriter.net/getCitState.aspx?series=Kan.&citationno=193+Kan.+343&scd=AL>, 348, 395 P.2d 308<http://lawriter.net/getCitState.aspx?series=P.2d&citationno=395+P.2d+308&scd=AL>, 312.) Since defendants' levees constituted a nuisance to plaintiff by increasing the washing, erosion, and scouring of his land, the mere passage of five years does not change the levees' character. "[T]he maintenance of a structure [149 Ill.2d 11] which will continue to cause a wrongful diversion of water upon the plaintiff's land, in quantities varying with the seasons, is a continuing nuisance, and an invasion of the plaintiff's right from day to day, and he may select his own time for bringing an action therefor," and he is not barred by the lapse of five years from the erection of the structure. (Wells v. New Haven & Northampton Co. (1890), 151 Mass. 46<http://lawriter.net/getCitState.aspx?series=Mass.&citationno=151+Mass.+46&scd=AL>, 49, 23 N.E. 724, 725; see also Baldwin v. Calkins (1833), 10 N.Y. (Wend.) 167, 178.) For continuing violations such as the one at hand, the five-year statute of limitations merely specifies the window in time for which monetary damages may be recovered prior to the filing of the complaint. Thus, we hold that this case falls within the ordinary rules applicable to continuing nuisances and continuing trespasses and that plaintiff is not barred from recovering monetary damages for the five-year period preceding the filing of the complaint. (See Eppling v. Seuntjens (1962), 254 Iowa 396, 404, 117 N.W.2d 820<http://lawriter.net/getCitState.aspx?series=N.W.2d&citationno=117+N.W.2d+820&scd=AL>, 825.)

Meyers v. Kissner, 149 Ill.2d 1, 10-11 594 N.E.2d 336, 340 (Ill. 1992).  As this case acknowledges – consistent with Doran, Bradley and Fradkin,
[T]he maintenance of a structure which will continue to cause a wrongful diversion of water upon the plaintiff's land, in quantities varying with the seasons, is a continuing nuisance, and an invasion of the plaintiff's right from day to day, and he may select his own time for bringing an action therefor….

Id. (emphasis added).

              Thus the argument that the Sabotka tort claims are time barred is meritless.  The injury is continuing and the condition is abatable.[3]


From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Inge Fordham
Sent: Tuesday, October 20, 2020 3:32 PM
To: jeff at bellanddavispllc.com; WSBA Real Property Listserv
Subject: Re: [WSBARP] Neighbor's sprinkler water damaging adjoining property owner's home

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


________________________________

[1] Plaintiffs reassert all arguments made in response to the City’s initial motion for SJT in their Plaintiffs’ Legal Memorandum Opposing the City’s Motion for Summary Judgment dated April 19, 2012.

[2] Note that Bradley applied a 3-year statute of limitations.

[3] This applies equally to the Sabotkas claim for injunctive relief to stop the City from continuing to block storm water drainage form the Sabotka property.
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