Appeal from Superior Court of King County. Docket No: 93-2-17734-8. Date filed: 02/02/95. Judge signing: Hon. Marsha J. Pechman.
Petition for Review Granted September 3, 1997,
Authored by Walter E. Webster. Concurring: Susan R. Agid, C. Kenneth Grosse.
The opinion of the court was delivered by: Webster
WEBSTER, J. -- This is a water law case involving the common enemy rule. DiBlasi's land initially slumped and later collapsed due to water soaked soil. She sued the City of Seattle, alleging that it collected and thrust surface water on to her property from a city street. The trial court granted DiBlasi summary judgment.
On appeal, the City contends that the mere improvement of a public right of way can not constitute artificial collection, concentration, or channeling of water under the common enemy rule of water law. We agree.
And because the expert testimony upon which DiBlasi relies demonstrates only that the city's initial grading and opening of dedicated rights of way contributed to the damage, we hold that the city is not liable for surface water damage. Hence, we reverse and remand to the trial court, with instructions to grant summary judgment in favor of the city.
The City of Seattle accepted the Daugherty Addition plat, located in West Seattle, in 1924. The plat dedicated S.W. Barton Street, 38th Ave. S.W., S.W. Bernice Pl., and S.W. Fletcher St. to the city for public use as roadways, including "the right to make necessary slopes or cuts or fills upon the lots, blocks, tracts etc. shown on this plat in the reasonable original grading of all the street avenues etc." The city graded and opened S.W. Barton Street. Later, it opened the first 135 feet of 38th Ave. S.W. south and west from S.W. Barton Street utilizing asphalt and seal coating. The city owns the property west of 38th Ave. S.W., commonly known as Fauntleroy Park.
In 1975, a contractor graded and graveled approximately 165 feet further south and west along S.W. 38th Ave., up to the point of a large ravine running west to east. At the same time as grading and graveling 38th, the contractor constructed DiBlasi's home east of 38th Ave. S.W. The city alleges that the contractor, during construction, filled a smaller ravine which ran north to south adjacent to the home; the city relies on a 1956 topographical map, and the presence of non-native material among soil which subsequently collapsed and slid into the ravine. The contractor denies placing any fill "under 38th Ave. S.W. or the area where the landslide occurred on the DiBlasi property."
Thirty-eighth Ave. S.W. slopes downward from S.W. Barton, with an elevation of 275 feet above sea level close to S.W. Barton and 245-255 feet on 38th Ave. S.W. adjacent to the DiBlasi residence. The city constructed no catch basins, channels, ditches, or artificial drains on that portion of 38th Ave. S.W. which it opened. Diffuse surface water runoff from the impermeable street surface has created gullies on the graded graveled portion of 38th Ave. S.W. On the southern side of S.W. Barton St., which lies north and runs perpendicular to 38th Ave. S.W., the city constructed a berm, in 1975, to prevent S.W. Barton St. surface water from entering 38th Ave. S.W. When the city resurfaced S.W. Barton in 1986, it removed the berm. Responding to citizen complaints, the city reinstalled the berm well before 1991. Despite the berm, in times of heavy rain, some water would flow from S.W. Barton street onto 38th Ave. S.W., although the city alleges that any such surface waters are within the "natural watershed or drainage basin" of the area.
In March 1991, DiBlasi asked P. Erik Mikkelsen, a geotechnical engineer, to inspect the slope at the end of 38th Ave. S.W. adjacent to DiBlasi's property. Mikkelsen detected a slump or setting down of earth, exposing three feet of the underlying soil. A continuation of the slump, or another slump, was on the dedicated roads or in Fauntleroy Park.
Mikkelsen met with city officials who denied his request that the city de-water portions of the property or redirect or rechannel surface flows away from the slumping area. De-watering would have cost approximately $15,000 and, in Mikkelsen's opinion, would have permanently remedied the problem.
During a rainstorm in early April 1991, diffuse surface waters entered the slump, causing a landslide from DiBlasi's property onto. S.W. 38th St., and S.W. Fletcher St., and Fauntleroy Park. DiBlasi eventually erected a concrete cantilevered wall costing $140,000.
DiBlasi sued the city. On cross motions, the trial court granted summary judgment in favor of DiBlasi as to the city's liability, and later granted DiBlasi's motion to strike the city's affirmative defenses of contribution and contributory negligence. The parties stipulated to the amount of damages and the trial court then entered judgment in DiBlasi's favor.
Common Enemy Rule: Municipal Grading Versus Artificial Thrusting
A municipality is not liable for consequential injury to private property occasioned by the original grading of streets. *fn1 When a lawsuit alleges that diffuse surface waters damaged property as a result of street building, however, municipal law must be fused with water law.
"Municipal rights and liabilities as to surface waters are the same as those of private landowners within the city." *fn2 Diffuse surface water is a common enemy, against which every proprietor of land may defend himself, even to the consequent injury of others. *fn3 Thus, a municipality is not liable for consequential injury when, in opening ...