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Scalesse v. Davis

The Court of Appeals of Washington, Division Two
Feb 12, 2009
148 Wn. App. 1038 (Wash. Ct. App. 2009)

Opinion

No. 36610-0-II.

February 12, 2009.

Appeal from a judgment of the Superior Court for Cowlitz County, No. 04-2-01511-2, James J. Stonier, J., entered June 29, 2007.


Affirmed by unpublished opinion per QuinnBrintnall, J., concurred in by Van Deren, C.J., and Hunt, J.


The common enemy doctrine generally allows landowners to dispose of unwanted surface water in any way they see fit without liability for resulting damage to neighboring properties. Currens v. Sleek, 138 Wn.2d 858, 861, 983 P.2d 626, 993 P.2d 900 (1999). But because strict application is often inequitable, Washington courts have carved out three exceptions to the doctrine: landowners may not (1) block a watercourse or natural drainway; (2) collect and discharge water onto their neighbors' land in quantities greater than, or in a manner different from, its natural flow; or (3) exercise their rights in bad faith or fail to avoid unnecessary damage to others' property. Currens, 138 Wn.2d at 862-65.

Vincent F. Scalesse sued both Ken L. Davis, Sr. and Jeffrey P. Rauth, claiming that the common enemy doctrine did not apply to their water diverting actions because they had blocked a natural drainway. Scalesse also sued Rauth for failing to exercise due care to avoid unnecessary damage to Scalesse's property. In addition, Scalesse sued Davis and Rauth for trespass and nuisance. The trial court ruled that, because the diverted water involved included groundwater, the exceptions to the common enemy doctrine did not apply and, as a result, it found in Davis's and Rauth's favor. It also found that Scalesse's drainage pipes improperly encroached on Davis's property and unlawfully channeled and discharged water onto Davis's property.

On appeal, Scalesse challenges the trial court's rulings and argues that, because the presence of groundwater does not preclude application of the exceptions to the common enemy doctrine, the trial court's orders should be reversed.

We agree with Scalesse that the trial court's finding that the presence of groundwater precluded application of the exceptions to the common enemy doctrine was erroneous. But because the record establishes that Davis and Rauth did not block a natural drainway and there is no evidence that Rauth acted in bad faith, the common enemy doctrine applies to their actions and defeats Scalesse's claims. In addition, this case is grounded in equity and, according to Scalesse's testimony, the sump pumps he installed have cured the flooding issues and it is inequitable to require that Davis install a drainage system on his property to accommodate the run-off from upland properties. Accordingly, we affirm.

FACTS

Factual Background

In 1991, James Sessions purchased Lot 2 of a four-lot subdivision located on Columbia Heights Road, adjacent to West Beacon Hill Drive in Longview, Washington. In 1993, he built a home on the lot. In addition, in 1993, Sessions also purchased and developed Lot 1, where he now resides. By the end of 1993, Sessions owned and had developed both Lots 1 and 2.

Lot 1 is uphill from Lot 2 and, before the development of these lots, surface water drained from the backside of these lots toward West Beacon Hill Drive and then downhill through a ravine that went across Lot 2 and farther downhill across Lot 3. During development of the lots, Sessions filled in the ravine with dirt. Sessions also cleared the lots and installed a drainage system on Lots 1 and 2, which included a dry well that collected surface water flowing from Lot 1 and the property uphill from Lot 1. The dry well collected this surface water and emptied it into a six-inch clay tile pipe that ran underground across Lot 1 onto Lot 2.

The drainage system also included a curtain drain that ran along the backside of Lot 1 and then paralleled the boundary line between Lots 1 and 2 and joined up with the six-inch clay tile pipe. After crossing onto Lot 2, the six-inch pipe was joined at a right angle to a nonperforated pipe that directed the water toward the back of Lot 2, which ran parallel to the boundary line between Lots 1 and 2 where it then joined at a right angle with a six-inch perforated curtain drain. This perforated pipe and the curtain drain ran across the back side of Lot 2 and turned at a right angle, running toward the front of Lot 2 for approximately 25 feet. At that point, the perforated pipe was joined with a six-inch polyvinyl chloride (PVC) pipe at a right angle and the PVC pipe ran across the boundary line between Lots 2 and 3 and emptied the collected water approximately 10 feet onto Lot 3, which Davis owned at the time of this action. Before development of Lot 3, the four-inch and six-inch PVC pipes protruded from the ground, extended beyond Sessions's property line onto Lot 3, and emptied onto the sloping surface. According to Sessions, this drainage system channeled both groundwater (through the use of the curtain drain) and surface water and did not follow the path of the ravine that existed before development. Sessions also constructed a foundation drain around the house on Lot 2.

In 1994, Scalesse purchased Lot 2 from Sessions, unaware that the drainage systems included two open pipes draining onto Lot 3. In 1995, Rauth purchased Lot 3 and developed the property with Robert Rouse acting as his general contractor. During construction of the home on the lot, Rauth and Rouse filled in the back of Lot 3, burying both the six-inch and four-inch pipes that Sessions had installed previously. In 1997, Rauth sold his property to Davis.

In December 1999, Scalesse's finished basement flooded. Because Scalesse discovered the water in his basement after coming home from work, he was not able to determine the source or cause of the water intrusion. In February 2003, Scalesse's basement flooded again. After the 2003 flooding, Scalesse excavated the area where water was pooling outside of his basement. Scalesse followed the pipe to Davis's property; Davis excavated the area where the pipes crossed onto his property and informed Scalesse that rock and fill had blocked the pipes.

After the February 2003 flooding, Scalesse's basement began to flood almost monthly during periods of heavy and sustained rainfall. In January 2004, Scalesse built a trench to collect the pooling water outside the basement and installed at first one sump pump, and then later a second sump pump, to transport the excess water into the street. Since installing the sump pumps, Scalesse has not experienced any flooding in his basement; but the sump pumps frequently run during periods of heavy and sustained rainfall and, because they are mechanical, are subject to potential failure. At the same time Scalesse was experiencing flooding in his basement, the Davis property developed a sinkhole in the area where the buried pipes opened up to discharge the water from the Scalesse and Sessions lots.

Procedural History

On August 19, 2004, Scalesse sued Davis, Rauth, and Rouse, alleging that they had blocked a natural drainway on Scalesse's property in violation of the first exception to the common enemy doctrine. In addition, Scalesse claimed trespass and nuisance against all defendants. Scalesse also claimed Rauth and Rouse were negligent for failing to exercise due care to maintain the natural drainage when they built the Davis house and that they should have extended the drain that originated from Scalesse's property across Davis's property. As a result of the blockage, Scalesse alleged that water was invading his property and flooding his basement. Scalesse asked the trial court to require Davis to extend the blocked drainage pipes across Davis's property as well as to award him damages incurred as a result of the flooding in his basement. Davis counterclaimed, asking the trial court to eject Scalesse's pipes that intruded on his property because Scalesse admittedly did not have an easement or any prescriptive rights.

The trial court dismissed Rouse from this case under the statute of repose, RCW 4.16.310. Scalesse does not appeal this ruling and it is not at issue on appeal.

At trial, Scalesse's expert, Steven Kenworthy, a drainage contractor, testified that the "development of [the Sessions, Scalesse, Davis, and surrounding] lots obviously changed the natural contour of these properties . . . [a]nd whatever natural drainage that existed before the lots were there, the terrain that had that natural drainage, is no longer there." 2 Report of Proceedings (RP) at 163. Davis's expert, Brett Shipton, a geotech engineer, also testified that the drainage system Sessions installed is "an unnatural flow of water" because "[y]ou have all this water from [] Scalesse's property on his uphill property directed to one point between [] Davis and [] Scalesse's property and that's . . . not the way things work in nature." 2 RP at 186. In addition, Sessions testified that the drainage system was a distinct system and "[did] not follow the course of the ravine" that had existed before the development. 3 RP at 227. Sessions also testified that the drainage system he installed collected both surface water and groundwater.

The trial court determined that, although Rauth and Davis had improperly blocked a natural drainway in violation of the first exception to the common enemy doctrine, none of the common enemy doctrine exceptions applied because the water in the pipe was a mixture of both surface water and groundwater and the common enemy doctrine and its exceptions applied only to surface water. The trial court further found that some of the roof drains on Sessions's and Scalesse's lots emptied into the drainage systems that ultimately emptied through the six-inch PVC pipe onto Davis's lot. In addition, the trial court found that, before development, water in the lots drained toward the ravine in the front of the lots. Because Scalesse could not establish that one of the exceptions to the common enemy doctrine applied, the trial court found that his trespass, nuisance, and negligence claims failed. The trial court also found that Scalesse and Sessions violated one of the exceptions to the common enemy doctrine because they had artificially collected water from Sessions's lot and Scalesse's lot, and channeled it onto Davis's lot. Lastly, because Davis had established that Scalesse's pipes encroached on Davis's property, the trial court ordered Scalesse to either remove or block the six-inch drainpipe and the four-inch drainpipe.

Scalesse timely appeals.

ANALYSIS

Findings of Fact

Scalesse argues that substantial evidence does not support the trial court's finding that (1) the drainage systems Sessions installed collected both groundwater and surface water; (2) some of the roof drains on Lots 1 and 2 emptied into Lot 3; and (3) before development, the water drained toward the front of the lots. We disagree. Our review of the record reveals that substantial evidence supports the trial court's findings of fact 5, 6, and 17 that the drainage systems collected both surface water and groundwater; the trial court's finding of fact 7 that some of the roof drains emptied into Davis's lot; and finding of fact 20 that, before development, water drained toward the front of the lots. Standard of Review

When reviewing a bench trial, we determine "whether the findings [of fact] are supported by substantial evidence and whether those findings support the [trial court's] conclusions of law." Dorsey v. King County, 51 Wn. App. 664, 668-69, 754 P.2d 1255, review denied, 111 Wn.2d 1022 (1988). Substantial evidence supports a finding of fact where the "`record contains evidence of sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise.'" King County v. Washington State Boundary Review Bd., 122 Wn.2d 648, 675, 860 P.2d 1024 (1993) (quoting World Wide Video, Inc. v. City of Tukwila, 117 Wn.2d 382, 387, 816 P.2d 18 (1991), cert. denied, 503 U.S. 986 (1992)). We review conclusions of law de novo. See Mountain Park Homeowners Ass'n, Inc. v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994) (citing Syrovy v. Alpine Res., Inc., 122 Wn.2d 544, 548-49 n. 3, 859 P.2d 51 (1993)).

A. Groundwater and Surface Water

Scalesse argues that substantial evidence does not support the trial court's finding that the drainage system that Sessions installed collected groundwater. Specifically, Scalesse argues that there was no testimony that the drainage system collected anything but surface water. But Sessions testified that the curtain drain he installed collected groundwater. Sessions also testified that the water in the curtain drain and foundation drain fed into the dry well and then into the four-inch pipe that terminated in the Davis lot. Substantial evidence supports the trial court's finding that the drainage system Sessions installed on Scalesse's property which discharged onto Davis's property, collected both groundwater and surface water.

B. Roof Drains

Scalesse also argues that substantial evidence does not support the trial court's finding that some of the roof drains on Sessions's lot and his lot emptied into Davis's lot. Specifically, he argues that the testimony at trial established that only one roof drain fed into the drainage system and that all other drains fed directly into the street. But again, Scalesse ignores Sessions's testimony. Sessions testified that approximately 50 percent of the water from his roof drains, as well as 50 percent of the water from Scalesse's roof drains, went into the groundwater system he installed on Scalesse's property. And Sessions testified that there are approximately a "half a dozen" drains that come off the roof of the Scalesse property and four or five of them go into the drainage system, while the other "1 or 2 on . . . Scalesse's lot . . . actually go down into the canyon." 3 RP at 230. Substantial evidence supports the trial court's finding that some of the roof drains on both Sessions's lot and Scalesse's lot emptied onto Davis's lot.

C. Water Flow Before Development

Next, Scalesse argues that the evidence does not support the trial court's finding that, before development, water flowed to the front of the lots and then into the ravine. Specifically, Scalesse argues that the water did not flow to the front of the lots because the ravine was approximately 40 feet back from the curb. But evidence shows that, although the ravine was not adjacent to the street, it was located toward the front of the lots. Because of its location toward the front of the lots, the water did, in fact, run toward the front of the lots before the development of the property. Thus, substantial evidence supports the trial court's finding. Burden of Proof

Scalesse further argues that the trial court erred when it imposed the burden of proof on him, the plaintiff, when the burden of proof should have properly rested with Davis to prove that he had the right to block Scalesse's "natural drainway." Br. of Appellant at 21. To support his argument that Rauth and Davis should have borne the burden of proof below, Scalesse points us to a 1983 law review article (Gregory C. Sisk, Toward a Unified Reasonable Use Approach to Water Drainage in Washington, 59 Wash. L. Rev. 61 (1983)) suggesting that Washington law imposes strict liability for blockage of a natural drainway. Specifically, he argues that, because Davis is strictly liable for the damage, the burden of proof rests with him to assert "the existence of facts which excuse what would otherwise be a wrongful act." Br. of Appellant at 21 (citing Olpinski v. Clement, 73 Wn.2d 944, 442 P.2d 260 (1968)). But before the burden shifts to the defendants, Scalesse, as the plaintiff, bears the initial burden of proving that Rauth violated one of the exceptions to the common enemy doctrine. In Currens, 138 Wn.2d at 868, our Supreme Court held that, under the common enemy doctrine, the property owner who seeks to recover for flooding damage alleged to have been caused by actions of an adjoining landowner bears the burden of showing that the damage was due to the adjoining landowner's bad faith or that it was in excess of that necessary for the completion of the project. Here, Scalesse is the plaintiff and the trial court properly placed the initial burden of proof on him.

Common Enemy Doctrine

Scalesse next argues that the trial court erred when it applied the common enemy doctrine because, when Rauth hired Rouse to build the Davis home, Rouse blocked a natural drainway. Davis and Rauth respond that the drainway they blocked is an unnatural drainway and allege that Scalesse himself artificially collected and discharged water in violation of an exception to the common enemy doctrine. We agree with Davis and Rauth.

The common enemy doctrine has directed the law of surface water in Washington since 1896. Currens, 138 Wn.2d at 861 (citing Cass v. Dicks, 14 Wash. 75, 44 P. 113 (1896)). Surface water is "`vagrant or diffused [water] produced by rain, melting snow, or springs.'" Currens, 138 Wn.2d at 861 (quoting King County v. Boeing Co., 62 Wn.2d 545, 550, 384 P.2d 122 (1963)). In its strictest application, the common enemy doctrine allows landowners to dispose of unwanted surface water in any way they see fit, without liability for resulting damage to neighboring properties. Currens, 138 Wn.2d at 861. Under this doctrine, a landowner may develop his or her land "without regard for the drainage consequences to other landowners." Currens, 138 Wn.2d at 861. But because strict application is often inequitable, Washington courts have carved out three exceptions to the doctrine: landowners may not (1) block a watercourse or natural drainway, (2) collect and discharge water onto their neighbors' land in quantities greater than or in a manner different from its natural flow, or (3) exercise their rights in bad faith or fail to avoid unnecessary damage to the property of others. Currens, 138 Wn.2d at 862-65. Scalesse claims that Rauth and Davis are liable for blocking his natural drainway under the first exception and that Rauth, at least, is liable for failing to avoid unnecessary damage under the third exception. Rauth and Davis argue that Scalesse violated the second exception. We discuss each exception separately.

A. Distinction Between Surface Water and Groundwater

As an initial matter, Scalesse argues that the trial court erred when it held that the exceptions to the common enemy doctrine are limited to damage that surface water causes and, here, Scalesse could not quantify how much damage surface water caused instead of groundwater. Specifically, he argues that this is a distinction without a difference because Washington courts have expanded the common enemy doctrine and its exceptions to include both surface water and groundwater. While case law suggests that the common enemy doctrine and its exceptions apply to groundwater, the nature and extent of its application is unclear. See, e.g., Wilkening v. State, 54 Wn.2d 692, 344 P.2d 204 (1959) (because a landowner may protect his land from surface waters without liability, he should not be liable for lawful acts that impede the flow of underground percolating waters); Borden v. City of Olympia, 113 Wn. App. 359, 53 P.3d 1020 (2002) (recognizing that Wilkening extended the common enemy doctrine and its exceptions from surface water to groundwater), review denied, 149 Wn.2d 1021 (2003). After careful review, it appears that the doctrine and its exceptions apply to percolating groundwater in addition to surface water but do not apply to underground water from an underground water source such as a permanent underground channel or stream.

In Wilkening, the plaintiff owned land with a high, natural embankment. 54 Wn.2d at 693-96. When the state lawfully constructed improvements at the bottom of the embankment, the improvements interfered with the embankment's drainage, thereby raising the water table and weakening the toe of the slope. Wilkening, 54 Wn.2d at 696. Our Supreme Court held that the state was not liable for the resulting damage and stated:

Since a landowner, in the lawful exercise of his right to improve his own land, may protect it from surface waters without liability, no reason occurs to us why he should be liable for the result of lawful acts upon his own land which impede the flow of underground percolating waters.

Wilkening, 54 Wn.2d at 698 (citations omitted).

Borden also addressed a claim that the City of Olympia obstructed the flow of both surface water and groundwater, which raised the plaintiff's water table, causing the plaintiff's property to flood. 113 Wn. App. at 366. There is no language in either Wilkening or Borden to suggest that the courts intended those cases to be limited to their facts. Thus, the trial court erred when it found that, because Scalesse sought to some extent to route groundwater, the exceptions to the common enemy doctrine did not apply. But even though these cases suggest that the trial court's reasoning was flawed, the result was correct: Scalesse is not entitled to relief under any of the exceptions to the common enemy doctrine. We will sustain a trial court's proper ruling on any correct ground appearing in the record even though the trial court did not consider that ground. Nast v. Michels, 107 Wn.2d 300, 308, 730 P.2d 54 (1986) (citing Reed v. Streib, 65 Wn.2d 700, 709, 399 P.2d 338 (1965)).

B. Natural Drainway or Watercourse

Scalesse argues that the trial court erred when it refused to apply the first exception to the common enemy doctrine to his claims against Davis and Rauth because the evidence established that Davis and Rauth blocked a natural drainway during construction of the Davis home. Rauth and Davis respond that the drainage system they blocked during development of the Davis property was an artificial drainway, not a natural drainway. Our review of the record clearly establishes that the development of the lots at issue destroyed the previously existing natural drainway and that the drainage system Sessions installed was artificial.

Scalesse argues that we should not permit Davis and Rauth to argue that the drainage system is not a natural drainway because they failed to cross-appeal and the trial court's finding that the drainage system was a natural drainway. But while failure to cross-appeal an issue generally precludes its review on appeal, a successful litigant need not cross-appeal in order to urge any additional reasons in support of the judgment, even though the trial court rejected these reasons. Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 202, 11 P.3d 762, 27 P.3d 608 (2000) (citing Tellevik v. Real Prop. Known As 31641 W. Rutherford St., 120 Wn.2d 68, 89, 838 P.2d 111, 845 P.2d 1325 (1992); Peterson v. Hagan, 56 Wn.2d 48, 52, 351 P.2d 127 (1960)).

Under the first exception to the common enemy doctrine, although a landowner may block the flow of diffuse surface water, he or she may not block or inhibit the flow of a watercourse or natural drainway. Currens, 138 Wn.2d at 862 (citing Island County v. Mackie, 36 Wn. App. 385, 388, 675 P.2d 607, review denied, 101 Wn.2d 1008 (1984)). "`A natural drain is that course, formed by nature, which waters naturally and normally follow in draining from higher to lower lands.'" Rothweiler v. Clark County, 108 Wn. App. 91, 98-99, 29 P.3d 758 (2001) (quoting Boeing Co., 62 Wn.2d at 550), review denied, 145 Wn.2d 1029 (2002). A landowner who dams up a stream, gully, or drainway is not exempt from liability under the common enemy doctrine. Currens, 138 Wn.2d at 862.

Here, Scalesse's drainage system collects surface water, combines it with percolating groundwater, and channels that water through a system of subterranean drainage pipes, catch basins, and dry wells. It is not a drain "formed by nature." See Rothweiler, 108 Wn. App at 99. Furthermore, the extensive development of the lots, including the leveling of the lots, altered the natural grade of the land, creating flat spots where water can pool. And Kenworthy, Scalesse's own expert, testified that the "development of [the Sessions, Scalesse, Davis, and surrounding] lots . . . changed the natural contour of those properties . . . and so obviously whatever natural drainage that existed before the lots were there, the terrain that had that natural drainage, is no longer there." 2 RP at 163. Davis's expert, Shipton, testified similarly that the drainage system Sessions installed is "an unnatural flow of water" because "[y]ou have all this water from [] Scalesse's property on his uphill property directed to one point between [] Davis and [] Scalesse's property and that's . . . not the way things work in nature." 2 RP at 186. In addition, Sessions testified that the drainage system "[did] not follow the course of the ravine" that had existed before the development. 3 RP at 227. Thus, when Sessions installed the drainage system, he created a new, distinct, and artificial drainage system that did not follow the natural drainage that existed before the development. As a result, it is clear from the record that Davis and Rauth did not block the flow of a waterway or natural drain and that the trial court did not err when it found that the first exception to the common enemy doctrine did not apply.

C. Channel and Discharge

Scalesse argues that the trial court erred when it determined that he violated one of the exceptions to the common enemy doctrine by collecting and discharging water onto Davis's property. Specifically, Scalesse argues that he and Sessions, although they employed a series of catch basins and roof drains, did not collect any water in addition to that which would flow down the natural drainway. But as Davis points out, Scalesse violated this exception because the "source, amount, velocity, and nature of those waters is not in any manner the same as the water that flowed naturally into [the] ravine on part of the properties at an earlier time." Br. of Resp't (Davis) at 19.

The channel and discharge exception to the common enemy doctrine prohibits landowners from collecting water and discharging it onto their neighbors' land in quantities greater than, or in a manner different from, its natural flow. Currens, 138 Wn.2d at 862 (citing Wilber Dev. Corp. v. Les Rowland Constr. Inc., 83 Wn.2d 871, 875, 523 P.2d 186 (1974), overruled on other grounds by Phillips v. King County, 136 Wn.2d 946, 968 P.2d 871 (1998)). Thus, although a landowner may direct diffuse surface waters into preexisting natural waterways and drainways, he or she may not create an unnatural conduit. Currens, 138 Wn.2d at 862 (citing Laurelon Terrace v. City of Seattle, 40 Wn.2d 883, 892, 246 P.2d 1113 (1952)). "[T]he flow of surface water along natural drains may be hastened or incidentally increased by artificial means, so long as the water is not ultimately diverted from its natural flow onto the property of another." Laurelon Terrace, Inc., 40 Wn.2d at 892 (emphasis added).

Here, Scalesse's drainage system does not incidentally increase water along a preexisting natural drain; instead, he is channeling both surface water and groundwater and discharging that cumulative water into an artificial drainage system to a single point on Davis's property. Because the artificial drainage system collected water from various locations, including Scalesse's roof and subterranean sources, it does not mirror or act as a substitute for the previously existing ravine and does not collect the same velocity, flow, or quantity of waters from the same source as before the development. As a result, Scalesse violated the channel and discharge exception to the common enemy doctrine and is not entitled to rely on the protection of the common enemy doctrine to insulate him from responsibility for the sink hole on Davis's property.

D. Due Care

Scalesse next appears to argue that Rauth acted in bad faith when he blocked Scalesse's artificial drainway. The common enemy doctrine requires landowners to exercise "due care" when altering the flow of surface water in order to avoid unnecessary damage to others' property. Currens, 138 Wn.2d at 865. A landowner, therefore, must "limit any harm caused by changes in the flow to that which is reasonably necessary." Pruitt v. Douglas County, 116 Wn. App. 547, 557, 66 P.3d 1111 (2003). And a landowner's actions are "reasonably necessary" as long as they do not damage adjacent property in excess of that called for by the particular project. Currens, 138 Wn.2d at 864; Pruitt, 116 Wn. App. at 557. Thus, "landowners who alter the flow of surface water on their property must exercise their rights with due care by acting in good faith and by avoiding unnecessary damage to the property of others." Currens, 138 Wn.2d at 865.

The due care exception to the common enemy doctrine is essentially a limited cause of action for negligence. Borden, 113 Wn. App. at 373. Scalesse limited his claim of negligence to Rauth.

Here, Scalesse failed to present any evidence that Rauth acted in bad faith; to the contrary, Scalesse testified that he did not believe that Rauth acted in bad faith and thought that it was likely the pipes were accidentally blocked during construction. More importantly, Scalesse did not present any evidence that Rauth failed to avoid unnecessary damage to Scalesse's property other than the flooding he was experiencing intermittently before he installed the sump pump system he currently uses. Thus, Scalesse failed to meet his burden to prove that the damage to his property was a result of Rauth's bad faith or that the damage was unnecessary to the development of the Davis estate. See Currens, 138 Wn.2d at 868; Ripley v. Grays Harbor County, 107 Wn. App. 575, 584, 27 P.3d 1197 (2001).

Whether Davis intends to cooperate willingly with Scalesse's suggested remedial efforts today is not evidence of any lack of good faith when Rauth constructed the Davis home.

Accordingly, because neither Rauth nor Davis blocked a waterway or natural drainway and Scalesse failed to present any evidence that Rauth acted in bad faith or failed to avoid unnecessary damage to Scalesse's property, no exception to the common enemy doctrine applies. As a result, we affirm the trial court's dismissal of Scalesse's negligence, trespass, water trespass, and nuisance claims. Moreover, based on the trial court's findings and Scalesse's testimony that the two sump pumps he installed have channeled the water away from his lot, it appears on this record that the flooding issue has been resolved and that it would be inequitable to require that Davis put in a drainage system to accommodate run off from Sessions's and Scalesse's lots which they combined and redirected to flow onto Davis's land. Encroachment

If installing additional drainage is needed, the proper remedy is an adverse condemnation action under RCW 8.24.030 at Scalesse's expense.

Scalesse argues that the trial court erred when it found that the pipes that terminated on Davis's property constituted an encroachment and ordered Scalesse to remove the pipes. Specifically, Scalesse argues that, because the pipes emptied into a natural drainway, Davis could not block the pipes without providing an adequate means of drainage. But, as demonstrated above, the record does not support Scalesse's contention that a natural drainway exists. Moreover, Scalesse fails to cite to any authority or offer argument as to why the pipes, which extend 10 feet onto the Davis land, are not impermissibly encroaching on Davis's property. See Howell v. Spokane Inland Empire Blood Bank, 117 Wn.2d 619, 624, 818 P.2d 1056 (1991) (assignment of error unsupported by legal argument will not be considered on appeal). Accordingly, the trial court's ejectment order was proper. Attorney Fees

Scalesse argues that the trial court erred when it awarded Davis attorney fees because Scalesse should have prevailed below and been awarded attorney fees. Because Scalesse is not the prevailing party on appeal, he is not entitled to attorney fees and the trial court's award of attorney fees to Davis is affirmed.

Affirmed.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

HUNT, J. and VAN DEREN, C.J., concur.


Summaries of

Scalesse v. Davis

The Court of Appeals of Washington, Division Two
Feb 12, 2009
148 Wn. App. 1038 (Wash. Ct. App. 2009)
Case details for

Scalesse v. Davis

Case Details

Full title:VINCENT F. SCALESSE ET AL., Appellants, v. KEN L. DAVIS, SR., ET AL.…

Court:The Court of Appeals of Washington, Division Two

Date published: Feb 12, 2009

Citations

148 Wn. App. 1038 (Wash. Ct. App. 2009)
148 Wash. App. 1038