Opinion
No. 64752-1-I.
January 24, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 09-2-17310-9, Bruce E. Heller, J., entered December 15, 2010.
Affirmed by unpublished opinion per Cox, J., concurred in by Schindler and Lau, JJ.
This action is by landowners Jerry and Diana Jennings for trespass, negligence, nuisance, and inverse condemnation against King County. They claim the County has created and is sustaining a wetland on their property, thereby denying their right to the full use and enjoyment of the property. The superior court dismissed the suit on summary judgment. Because the Jenningses fails to identify any genuine issue of material fact concerning causation or damages, we affirm.
In December 1997, the Jenningses purchased a 4.7 acre property in Auburn. In 1998, in the course of applying for building permits, the Jenningses hired B-twelve Associates to prepare a wetland delineation report for the property. B-twelve concluded that the majority of the property was a Class 2 wetland requiring a 50 foot buffer from the wetland edge and an additional 15 foot building setback line for any structures. The Jenningses obtained a wetland buffer variance and constructed a home in the northwest corner of the property in 1999.
In April 2009, the Jenningses commenced this action alleging that the County maintains certain drainage culverts directing storm and flood water into the southeast corner of the property. They claim the County refuses to improve or maintain culverts that would alleviate the flooding of the property. Specifically, the complaint alleges that in 2005, the County raised a portion of 38th Avenue South without increasing the size of the 18-inch culvert under the road. In 2008, the County replaced the existing culvert with a 60-inch box culvert. In addition, the complaint alleges that the County refuses to properly maintain or increase the size of a 12-inch culvert in an unopened County right-of-way to the east of the Jenningses' property, allowing storm water to flow around the culvert and flood the Jenningses' property in times of heavy rain.
The County moved for summary judgment, arguing that Jennings failed to produce any evidence that any County action had increased the water flowing onto his property resulting in damages. The trial court granted summary judgment.
The Jenningses appeal.
CAUSATION AND DAMAGES
The Jenningses contends that the trial court erred in dismissing their claims. We disagree.
A motion for summary judgment may be granted when there is "no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." A summary judgment motion must be supported by affidavits and set forth facts that would be admissible in evidence. The moving party bears the initial burden of showing the absence of an issue of material fact. If the moving party is a defendant who meets the initial burden, then the inquiry shifts to the party with the burden of proof at trial. If that party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," then the court should grant the motion.
CR 56(c).
CR 56(e).
Right-Price Recreation, L.L.C. v. Connells Prairie Community Council, 146 Wn.2d 370, 381-82, 46 P.3d 789 (2002).
Id.
Id. (quoting Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989)).
Each cause of action as alleged in the complaint here requires the Jenningses to establish that additional water flowing onto their property caused actual harm or damage to the property. To prevail on a claim for trespass by water, the plaintiff must establish actual and substantial damages. Negligence and nuisance also require a showing of actual harm or damages in order to avoid summary judgment. To recover on an inverse condemnation claim, the plaintiff must establish a permanent or recurring interference with the use and enjoyment of the property, resulting in a decline in market value.
Grundy v. Brack Family Trust, 151 Wn. App. 557, 567-68, 213 P.3d 619 (2009).
Wallace v. Lewis County, 134 Wn. App. 1, 17-19, 137 P.3d 101 (2006).
Gaines v. Pierce County, 66 Wn. App. 715, 725, 834 P.2d 631 (1992).
The undisputed evidence produced at the summary judgment hearing indicates that when the Jenningses acquired the property in 1997, it had already been a wetland for a significant number of years. The declaration of Pesha Klein, a professional wetland scientist and a supervisor in the Land Use Services of the County's Department of Development and Environmental Services, shows this. Klein's declaration states that given the well-documented rate of accumulation of peat in the area of 39.6 years per inch, the 7 to 16 inches of peat found on the property by B-twelve Associates indicates that the wetland conditions have been present a very long time. In addition, aerial photos of the property show a stable and unchanging forest canopy over the wetland from 1996 through 2007, while the surrounding areas were being developed. This evidence also indicates, in Klein's opinion, that the wetland conditions have been present for a very long time.
The Jenningses fail to identify any evidence indicating that any actions or inactions attributed to the County in their complaint had any impact on the conditions on their property. They do not claim that the wetland area of their property changed in size, appearance, or conditions. Jerry Jennings admitted in his deposition that he had not measured the water coming on to the property at any time and that he had not hired any expert to investigate their claims. The Jenningses do not claim any damage to their house or garage. Thus, there is nothing in this record to show the existence of any genuine issue of material fact for either causation or damages. The County was entitled to judgment as a matter of law.
We affirm the order granting summary judgment.
WE CONCUR: