Appeal from Superior Court of Whatcom County. Docket No: 94-2-00892-3. Date filed: 05/26/95.
PER CURIAM. Gordon Overby filed a complaint alleging damage from flooding caused by Campbell Motel Properties. He alleged Campbell's construction of a motel building diverted surface waters onto Overby's neighboring property. Overby appeals an order granting summary judgment to Campbell. Because Overby alleges a continuing trespass by water on his land, which raises issues of fact as to liability and damages arising within the period of the statute of limitations, we reverse in part the order of summary judgment.
In 1994, Overby filed a complaint for specific performance and damages, alleging that in 1988 Campbell built a berm and raised the height of land upon which they were building a motel, "blocking an established waterway drainage" and stream from Overby's land to the east. He alleged that the construction caused his land to become a swamp, "unfit for building," which killed his prune trees. He asked that Campbell be ordered "to restore the drainage pattern to its original condition" and pay damages of $50,000 for the land and $2,000 for the prune trees.
Campbell moved for judgment on the pleadings, which we treat here as a motion for summary judgment because the court considered materials outside the pleadings, including a deposition and interrogatories. Campbell argued the tort claim was barred by the three-year statute of limitations and the specific performance claim was unsupported by facts showing the existence of a contract.
Overby filed a memorandum opposing the motion for judgment on the pleadings, arguing: (1) the building supervisor breached his oral agreement to properly drain the water; and (2) Overby should be granted specific performance and damages for the continuing trespass, which he argued was not barred by the statute of limitations. In his answers to interrogatories, Overby asserted that lots in that area were worth $50,000, but the swampy part of his land, approximately the size of a lot, was worth $0.
The trial court dismissed the complaint for damages, ruling that the tort action was barred by the statute of limitations. The court also refused to hear Overby's oral motion to amend the complaint and dismissed the cause of action for specific performance without prejudice because Overby had failed to file a written motion to amend the complaint. Overby appeals these decisions.
The principal issue is whether the trial court erred in concluding that Overby's action was barred by the statute of limitations. In reviewing the order of summary judgment, this court engages in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash. 2d 434, 437, 656 P.2d 1030 (1982). In this case, whether the statute of limitations bars the complaint is an issue of law reviewed de novo. See Ellis v. Barto, 82 Wash. App. 454, 457, 918 P.2d 540 (1996), review denied, 130 Wash. 2d 1026, 930 P.2d 1229 (1997).
There seems to be no real dispute that the controlling statute is RCW 4.16.080(1), which provides a limitation of three years for actions for "waste or trespass upon real property." *fn1 See Bradley v. American Smelting and Refining Co., 104 Wash. 2d 677, 692, 709 P.2d 782 (1985) (intrusion upon land subject to three-year statute of limitations). Campbell contends that a single cause of action accrued upon discovery of the damage in 1989, which is beyond the limitation period. Overby contends there is a continuing trespass giving rise to new causes of action and/or damages accruing during the three-year period before commencement of the lawsuit.
We agree with Overby. Taken as a whole, his original complaint, affidavit and memorandum opposing the motion for summary judgment alleged a continuing trespass caused by the construction on Campbell's land. "One suffering from an injury in the nature of a continuing nuisance may recover damages as often as he brings action therefor." Island Lime Co. v. Seattle, 122 Wash. 632, 635, 211 P. 285 (1922); Weller v. Snoqualmie Falls Lumber Co., 155 Wash. 526, 285 P. 446 (1930), overruled on other grounds, Bradley v. American Smelting, 104 Wash. 2d at 693. Accord, Pepper v. J.J. Welcome Construction, 73 Wash. App. 523, 871 P.2d 601, review denied, 124 Wash. 2d 1029, 883 P.2d 326 (1994) (regarding damages from water run-off due to construction on adjoining land, statute of limitations served only to cut off damages prior to three years before commencement of lawsuit). See also Restatement (Second) OF Torts sec. 161 cmt. b, illus. 1 (1965) (recognizing the option of a landowner "to maintain a succession of actions based on the theory of continuing trespass or to treat the continuance of the thing on the land as an aggravation of the original trespass").
Hence, to the extent that Overby has shown that the water saturation and/or flooding continues, he is not barred from recovering damages to the land during the three years prior to filing the lawsuit. As to damages for killing the trees, however, the action is barred because Overby asserted in his answers to interrogatories that they were dying in 1989, and there is no evidence of damage to the trees during 1991-94.
The remaining issue is whether Overby has shown the existence of a genuine issue of fact as to damages occurring during 1991-94. In ruling on the motion, the court must consider the facts in the light most favorable to the nonmoving party. Hash v. Children's Orthopedic Hosp. and Med. Ctr., 110 Wash. 2d 912, 915, 757 P.2d 507 (1988).
We conclude that Overby sustained his burden. He alleged that Campbell blocked a waterway, causing saturation of his land which "has continued to this day." He asserted in his answers to interrogatories that lots in that area of Bellingham were worth $50,000. Therefore, the value of his land was $50,000 "before swamp" and $0 after. When viewed in the light most favorable to Overby, his firsthand observation of the swampy conditions and his opinion as to the value of the property are sufficient to present an issue of fact regarding damages during the three years before filing suit.
Overby contends the trial court erred in declining to hear his oral motion to amend the pleadings to include a claim for specific performance. This argument is without merit. Regardless of whether he should have been allowed to make an oral motion, the outcome would not have changed. Overby's claim for specific performance was beyond the three-year statute of ...