Opinion
No. 57340-3-I.
May 29, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-2-11258-3, John P. Erlick, J., entered November 9, 2005.
Jean Veldwyk's backyard became flooded with groundwater shortly after defendants installed new utility lines underneath the alley behind her yard. Veldwyk retained an engineer who deduced that the utility project caused the flooding by disturbing and rerouting the natural flow of groundwater in the area. Because the engineer plausibly explained the mechanism by which water is reaching Veldwyk's property, the case was improperly dismissed on summary judgment.
"The standard of review of an order of summary judgment is de novo, and the appellate court performs the same inquiry as the trial court." Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). "Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law." Sheehan v. Central Puget Sound Regional Transit Authority, 155 Wn.2d 790, 797, 123 P.3d 88 (2005).
Jean Veldwyk owns commercially zoned property on South Director Street in Rainier Valley in Seattle. In 1992 she sold the western portion of her original property to the Bonney family, who developed it for use in their custom fish canning operation. Of her remaining lots, one is vacant and the other is developed with a single family home that she uses as a rental property. In back of these lots, to the south, is a short alley called Fisher Place. On the south side of Fisher Place, up on a slight bluff, is a Safeway store.
Veldwyk's property, which sits on the former lakebed of Lake Washington, has a naturally high groundwater table. Before 2002, the lawn on the southern portion of the Veldwyk property was regularly damp during the winter and early spring, but during the summer it dried out. Now, there are pools of standing water year-round in areas of her yard that used to be dry.
The change in water levels coincided with a project undertaken by the City of Seattle to install water lines along Fisher Place. At the time, the neighboring Safeway was in the process of remodeling and expanding its store. In exchange for City approval of the expansion of the store, Safeway agreed to install a new domestic water and fire water main and a new stormwater line underneath the alley. The location for the new lines was behind Veldwyk's lot, approximately 15 feet south of her property line. Safeway placed the pipes in trenches backfilled with gravel and sand, and then buried them with the natural soil that had been excavated along Fisher Place.
Veldwyk contends the new trenches underneath Fisher Place are channeling groundwater to her property. Shortly after the installation of the new water lines, Veldwyk's neighbor Mr. Bonney began having flooding problems in his fish processing plant. Water began to enter the southeast corner of his building, the area immediately adjacent to Fisher Place and the new utility trenches. Bonney complained to the City. The City responded by constructing a curtain drain to intercept groundwater infiltrating Bonney's plant, but the problem was not solved. Bonney's plant sits slightly higher than Veldwyk's property, so when water flows around the southeast corner of his building it continues downhill into Veldwyk's back yard.
Clerk's Papers at 493 (Declaration of Holz in Opposition to Summary Judgment, October 18, 2005).
Veldwyk also contends the project impaired her access to the back of her lot. Only the western half of South Fisher Place is a paved road. The paved portion extends from Rainier Avenue South to where it connects with Safeway's parking lot. Before the new water lines were installed, Fisher Place continued to be open to traffic past the Safeway parking lot as an unimproved alley. It ran behind the back of Veldwyk's lot where it traced a natural depression, and then turned uphill again for a short distance until terminating in a dead end just short of 52nd Avenue South. Veldwyk used to be able to bring a vehicle along Fisher Place from Rainier Avenue South to the back of her lot which used to be level with Fisher Place. The alley is now four or five feet higher to accommodate the new stormwater line that conveys water solely by gravity from Rainier Avenue to 52nd Avenue South. To make it possible for the water to go straight downhill, Safeway raised the elevation of Fisher Place. Safeway also installed a barricade where the paved portion of Fisher Place ends, to prevent traffic from continuing eastward. Now, Veldwyk has access only to the front of her property, from South Director Street.
Veldwyk sued the City and Safeway in May of 2004. Her complaint alleged that the City had inversely condemned her property by inundating it with water and by depriving her of access. The City and Safeway jointly filed two motions for partial summary judgment on these issues. The trial court dismissed the access claim on October 3, 2005, and the water inundation claim on November 9, 2005. Veldwyk appeals.
WATER INUNDATION
Inverse condemnation is an action alleging a governmental taking where the plaintiff seeks to recover the value of the property that has been appropriated in fact without formal exercise of eminent domain. Phillips v. King County, 136 Wn.2d 946, 958, 968 P.2d 871 (1998). 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. For an inverse condemnation action alleging water inundation, "there may be liability on the part of a city for damages caused by water from a city street if the street acted to collect, concentrate and channel surface water onto private property in a manner different than the natural flow."Phillips, 136 Wn.2d at 959.
Like any landowner, a city may rely on the common enemy doctrine as a defense. The common enemy doctrine "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 v. City of Seattle, 136 Wn.2d 865, 875, 969 P.2d 10 (1998) (quoting Cass v. Dicks, 14 Wash. 75, 78, 44 P. 113 (1896)). However, the common enemy doctrine is not absolute. An uphill landowner cannot lawfully collect water in an artificial channel, then discharge it upon adjoining lands "in quantities greater than or in a manner different from the natural flow thereof."Rothweiler v. Clark County, 108 Wn. App. 91, 99, 29 P.3d 758 (2001). This is known as the "channel-and-discharge" exception. Borden v. City of Olympia, 113 Wn. App. 359, 367, 53 P.3d 1020 (2002).
Veldwyk contends that the utility trenches artificially intercept normal groundwater flow and redirect it into her property in excessive amounts and in a manner different from the natural flow, raising the water table. She supports her claim with the expert opinion of engineer Thomas Holz that her water problems are "probably related to groundwater interception in the utility trenches."
Clerk's Paper at 494-495 (Declaration of Holz in Opposition to Summary Judgment, October 18, 2005).
Respondents Safeway and the City acknowledge that principles governing surface water also apply to a dispute involving groundwater. Wilkening v. State, 54 Wn.2d 692, 698, 344 P.2d 204 (1959). But they say the channel-and-discharge exception to the common enemy rule applies only if the artificially-channeled water is discharged upon the surface of the land. For this proposition they cite Borden, 113 Wn. App. at 368.
In Borden, the City facilitated the construction of a stormwater drainage project that collected water from three new subdivisions and discharged it into a wetland downhill and to the west of the Borden property. The additional water saturated the wetland and raised the water table, thereby obstructing the normal flow of surface and groundwater draining from the Borden lot. Borden, 113 Wn. App. at 366. This court concluded that these allegations stated a claim for the "due care" exception to the common enemy rule, but the "channel-and-discharge" exception did not apply because the Bordens did not claim the additional water from the new development physically invaded their property.Borden, 113 Wn. App. at 368. In other words, the water must reach the plaintiff's land; there is no requirement, however, that it be discharged on the surface. Here, Veldwyk does contend that the groundwater artificially channeled by the utility trenches is reaching her property, and so the channel-and-discharge exception is applicable.
Safeway and the City contend Veldwyk's inverse condemnation claim was properly dismissed because it relies solely on "post hoc, ergo propter hoc" logic rather than hard facts. They say Veldwyk's case relies solely on the coincidence that the Safeway project was constructed about the time that Ms. Veldwyk noticed that her property was wetter than it had been in the past.
Respondent's Brief at 57.
Attempting to prove causation merely by showing a coincidence in time is the logical fallacy known as "post hoc, ergo propter hoc" (after this, therefore because of this). Without more, a coincidence in time between damage and the alleged cause may be judged insufficient. See Loesch v. United States, 645 F.2d 905 (1981); Owen v. United States, 20 Cl. Ct. 574 (1990). In each of these cases cited by respondents, a trial of a claim for erosion damages ended in a defense verdict. In Loesch, the plaintiffs alleged that erosion on their land was caused by the construction of a series of locks and dams along the Ohio River. The court characterized the plaintiffs' proof as "generalized and lacking in investigative detail and study" whereas the defendants' investigative study was thorough and entitled to "great weight". Loesch, 645 F.2d at 916, 917. The court concluded that most of the erosion probably would have occurred even if the locks and dams had not been built.Loesch, 645 F.2d at 919.
In Owen, the plaintiffs claimed that dredging conducted by the Army Corps of Engineers had caused their riverbank to collapse. The court found the plaintiffs' expert testimony unhelpful because it lacked precision and empirical analysis. The defendants offered more persuasive expert testimony attributing the erosion to other causes.Owen, 20 Cl. Ct. at 579. "The court is left with the bare assertion that widening the curve and dredging the existing channel caused a change in the way the river current hit the Payne lot." Owen, 20 Cl. Ct. at 584. Because the plaintiff failed to establish that the dredging was a factor in the erosion, the court ruled in favor of the defendant and dismissed the claim. Owen, 20 Cl. Ct. at 588.
Unlike in Loesch and Owen, here the posture of the case is review of a dismissal on summary judgment. It is not our task to weigh the evidence and decide which side is more persuasive. The question is whether the record contains evidence from which a reasonable factfinder could conclude that the utility project caused the water table on Veldwyk's property to rise. While Veldwyk does not rely solely on the fact that her yard used to be fairly dry and did not flood until after the pipes were laid in Fisher Place, that coincidence in timing does give rise to an inference of causation. See Borden, 113 Wn. App. at 372 (flooding on plaintiff's lot began after the city completed a stormwater drainage project and recurred each winter for the next several years until the city built another drainage facility to channel water out of the area; summary judgment for city reversed on appeal).
In addition to the coincidence in timing, Veldwyk relies on testimony by engineer Thomas Holz, hired to determine the cause of the increased water on her property. During his investigation, Holz made two site visits, spoke with Mr. Bonney about the flooding problems he was experiencing, reviewed drawings for the development project, and read a soils report prepared for the construction of the Safeway store that specifically called for porous gravel. Holz explained that a "piping effect" is a common phenomenon in utility trench installations excavated on steep grades. He said that once the trench is dug, it intercepts groundwater that flows into the porous gravel and "pipes" downhill along the bottom of the trench, impelled by gravity. In his opinion, this phenomenon explains how groundwater migrated from the newly
Clerk's Papers at 495 (Declaration of Thomas Holz, October 18, 2005).
installed pipes to the nearby properties: This "piping" effect in the storm sewer and potable water trenches is probably the source of additional water on the Veldwyk property as well. The two utility trenches are about 300 feet long up-gradient of the Veldwyk property. Furthermore, the steeply sloped portion of the trenches end on the Veldwyk property meaning that the rapidly moving "piped" water will slow and tend to migrate laterally through the clean gravels of the new road bed and be discharged to the Veldwyk and Dressel-Collins properties.
Clerk's Papers at 496 (Declaration of Thomas Holz, October 18, 2005).
The City and Safeway characterize Holz's opinion as conjecture that cannot support a finding of proximate cause. "In matters of proof the existence of facts may not be inferred from mere possibilities." Nejin v. City of Seattle, 40 Wn. App. 414, 421, 698 P.2d 615 (1985). Proximate cause "must be proved by evidence, whether direct or circumstantial, not by speculation or conjecture or by inference piled upon inference." Neijin, 40 Wn. App. at 421. In Nejin, the plaintiff went to trial against the City of Seattle on a claim for landslide damages. The trial court found that the landslide was caused by the escape of water from a broken sewer line that the City had negligently failed to inspect. However, the judgment for the plaintiff was reversed on appeal for insufficient evidence of causation. Landslides in the area had occurred before. The City established that the contributory effect of a broken pipe diminished beyond 50 feet from the break, while in Neijin's case the sewer break was 240 feet from the landslide site. Evidence was adduced that under certain circumstances water "could have exfiltrated" from the sewer pipe and "conceivably in some manner or fashion" could have reached the landslide site.Neijin, 40 Wn. App. at 421. But when repair crews dug down to fix the pipe, the ground around the break did not show any signs that water or sewage had actually escaped from the pipe. Nejin, 40 Wn. App. at 421. On this record, a reasonable person could not conclude that the broken pipe was a more likely cause of the slide than natural groundwater seepage, which was prevalent in the area. Nejin, 40 Wn. App. at 422.
In the face of physical evidence plainly contradicting her theory, Nejin could only speculate about how the water might have traveled from the broken pipe to the landslide site. Here, by contrast, the physical evidence did not contradict testimony by Holz explaining how the gravel-lined utility trenches conducted groundwater to Veldwyk's property. There was no evidence that flooding had occurred in the same location prior to the Fisher Place project. Holz acknowledged alternative theories of causation proposed by the respondents, but discounted them as inadequate to explain how Veldwyk's property went so quickly from dry most of the time to soggy all the time. Rather than stating that the piping effect conceivablymight explain the flooding, Holz stated that itwas the cause more probably than not:
And the reason that that is my opinion . . . is because we have eliminated everything else, rainfall hasn't, patterns haven't changed dramatically. We have eliminated surface water as a possibility. We know the evapo-transpiration hasn't changed. The only possible source for that additional water is ground water movement. And the most likely cause of that ground water movement is the effect called piping in those trenches.
Clerk's Papers at 1093 (Holz Deposition, November 1, 2005).
Respondents claim that the opinion offered by Holz should be disregarded as lacking an adequate factual basis, as was done inRothweiler v. Clark County, 108 Wn. App. 91, 29 P.3d 758 (2001). In that case the Rothweilers attempted to show through expert testimony that the County drainage system, including a concededly inadequate 12-inch pipe, unnaturally channeled and discharged stormwater onto their property. But the first expert could only say that the inadequate pipe failed to provide for proper outflow of water; he did not support the theory of improper discharge. The second expert initially stated that the pipe caused water to back up and be thrust onto the Rothweilers' property, but he later admitted that he had no factual basis for this opinion, so the court disregarded it.Rothweiler, 108 Wn. App. at 100-101. The trial court properly granted summary judgment on this record. Here, however, Holz testified to specific facts supporting his opinion that the Fisher Place project proximately caused the flooding. Respondents contend that Holz did not compare the amount of water that reached Veldwyk's property after the project to the amount that would naturally reach it. Yet their brief recites his testimony describing the increased wetness as a small one, measurable in "millimeters" but noticeable because the water table on the property had always been very close to the surface.
The respondents allege that Holz did not take as many measurements as he should have, inaccurately described the condition of the site, did not investigate as thoroughly as he should have, and offered inconsistent theories at different points during his investigation. These are matters that can be probed through cross-examination at trial. Reviewing the record in the light most favorable to Veldwyk, we conclude there is adequate evidence from which a reasonable jury could find that the Fisher Place project caused Veldwyk's property to flood.
ACCESS
Veldwyk's complaint alleged that the utility project impaired vehicular access to the back of her lot from Fisher Place in two different ways. First, the regrade physically altered Fisher Place where it passes behind the Veldwyk property, so that her yard is four or five feet below the alley instead of level with it. Second, a curb and barricade installed where the paved portion ends deters vehicles from proceeding past the barricade and driving down the unpaved portion of Fisher Place to her property. Veldwyk alleged that the impairment of access was a taking or damaging of property, and requested relief either in the form of an injunction to reopen vehicular access or in the form of damages compensating her for the loss of such access.
Respondents contend Veldwyk's claim for loss of access was properly dismissed based on the "original grade" doctrine, under which a landowner's construction of improvements is subject to a city's right to establish the original grade of a public right of way.
On appeal, Veldwyk argues that the original grade doctrine has no bearing on the total elimination of vehicular access brought about by the erection of the barricade. She suggests that we can reinstate her claim for loss of access solely on the basis of the barricade and need not reach the original grade issue.
Both parties assume that the barricade issue was litigated in the trial court. We question that assumption. The City's motion for partial summary judgment asked the trial court to dismiss "all claims arising out of [Veldwyk's] alleged loss of access to Fisher Place due to the regrading of this unimproved right of way in connection with installation of public utilities that were a City requirement for a Safeway redevelopment project." The City's motion did not address the loss of access due to the barricade that was alleged in her complaint. It is therefore not surprising that Veldwyk's opposition to the motion for summary judgment refers to the barricade only obliquely, and only in connection with the impairment of access caused by the regrade. It is also not surprising that the barricade was scarcely mentioned at all during oral argument on the motion. Nevertheless, the order of October 3, 2005, dismisses "all claims arising out of Plaintiff's alleged loss of access to Fisher Place." And the order of November 9, 2005 not only grants the defendants' motion for partial summary judgment to dismiss the water inundation claim, it also orders "that all of Plaintiff's remaining claims are hereby DISMISSED."
Clerk's Papers at 18 (Defendants City of Seattle's and Safeway's Joint Motion for Partial Summary Judgment, September 2, 2005).
Clerk's Papers at 73, 76 and 78 (Veldwyk's Opposition to Summary Judgment, September 22, 2005).
Clerk's Papers at 463 (Order Granting Defendants Joint Motion for Partial Summary Judgment, October 3, 2005).
Clerk's Papers at 902 (Order Granting Defendants Joint Motion for Partial Summary Judgment on Water Inundation Claims, November 9, 2005).
If the barricade issue was truly a separate issue that remained unresolved after the trial court had granted the two partial motions for summary judgment, then there was no final judgment to appeal. However, Veldwyk's Notice of Appeal filed with this court on November 30, 2005, states that the order of November 9, 2005, "is the final judgment dismissing all of plaintiff's claims." By appealing without getting the barricade issue resolved in the trial court, Veldwyk has waived the right to have it reviewed in this court. There simply is not enough in the record to show that she presented the trial court with her present argument that installation of the barricade is enough by itself to support a claim for impairment of access.
Thus, the only issue properly before us relating to impairment of access is whether the City damaged Veldwyk's abutting property by modifying the original grade of Fisher Place.
Where a proposed change to the established grade of a street will seriously damage an abutting owner's property, the change may be enjoined, unless the damage has been ascertained and paid. Hart v. City of Seattle, 42 Wash. 113, 115, 84 P. 640 (1906). But "there can be no taking or damaging of abutting property subject to an initial grade". City of Spokane v. Ladies' Benevolent Society, 83 Wash. 382, 387, 145 P. 443 (1915). Before getting to the question of whether a change in the grade of a street has damaged her property, the plaintiff has the initial burden of showing the existence of a grade already duly established by the city authorities at the time the improvements were made and that the improvements were made with reference to a grade so established. Ladies' Benevolent Society, 83 Wash. 387, citing Mattingly v. City of Plymouth, 100 Ind. 545 (1885).
An ordinance is not strictly necessary to prove an established original grade. In certain circumstances, a municipality establishes an original grade by improving the road with the intention that the improvements establish an original grade. The intention of the city is a question of fact. "The question in each case is whether the county or municipality, in making improvements to render the roadway usable, intended thereby to establish a grade which might not be altered at some future date without paying abutting landowners compensation for interference with their access." Schrock v. King County, 55 Wn.2d 655, 658, 349 P.2d 594 (1960).
In Schrock, the roadway had been dedicated by plat in 1909, but the county did not adopt a resolution fixing a grade line until 1957. Abutting landowners claimed their properties had been damaged by the construction of a road conforming to the newly established grade. They obtained a judgment against the county after a trial on the merits. Reversing the judgment, the Supreme Court found it "clear" that improvements made prior to 1957 "neither affected the entire roadway nor materially altered its natural surface." Schrock, 55 Wn.2d at 659. Because the prior improvements were made "merely to render the roadway temporarily usable in its then condition," the trial court erred in finding that the prior improvements were done with the intent of establishing an original grade.Schrock, 55 Wn.2d at 659.
Veldwyk claims that she has raised a material issue of fact as to whether the City intended the established grade of Fisher Place as it existed prior to the Safeway development to be the original grade. But the only evidence she offers is that Fisher Place remained level with the eastern portion of her backyard for many years before she purchased her property. This is insufficient to create an issue of fact as to the City's intent. The trial court properly dismissed the loss of access claim because Veldwyk did not carry her burden to prove an original grade. Having resolved the issue of access on that basis, it is unnecessary to consider the City's alternative argument that Veldwyk cannot have a claim for impairment of access to her property from Fisher Place when she still has unimpaired access from South Director Street.
The order dismissing the claim of inverse condemnation by water inundation is reversed; that claim is remanded for trial. In all other respects the judgment of the trial court is affirmed.