Daily Development for
Wednesday, October 1, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

NUISANCE; MUNICIPAL CORPORATIONS; WATER RUNOFF: City not liable for damage to land adjacent to street caused by runoff from street.

Diblasi v. City of Seattle, 933 P.2d 443 (Wash. Ct. App. 1997).

The plaintiff owned property adjacent to a roadway constructed by the defendant city. The roadway was graded and paved so as to have an impermeable surface. Runoff from various storms eventually caused the plaintiff's land to slump and then collapse. The plaintiff then sued the city, alleging that the grading and paving of the roadway actedto collect and discharge water artificially onto her land. The trial court granted summary judgment in favor of the plaintiff, and the city appealed.

The Washington Court of Appeals reversed and remanded with instructions to the trial court to enter summary judgment in favor of the defendant city, holding that, under the "common enemy" rule, all landowners can defend themselves against surface water, even to the detriment of neighbors. Relying on Wood v. Tacoma, 119 P. 859 (Wash. 1911), where it was held that a city cannot be held liable for damage to private property caused by the initial grading or improvement of its streets and alleys, the court found that, even though the construction of a road changes the character of the surface, and may change the course of surface waters, it does not constitute an artificial collection and discharge of water. Moreover, even the location of the road in question could not form the basis of liability for the city because the road was built entirely within the easement dedicated for that purpose.

Comment 1: The case is unusual because most modern decisions have moved away from the strict "common enemy" theory to some other theory that gives the court more discretion to balance the reasonableness of the defendant's conduct against the injury to the neighboring properties, particularly when the conduct consists of gathering and channeling water runoff. Although the city was a defendant here, the court's analysis appears to pertain to both public and private defendants, and thus is an important development (or non development) in Washington.

Comment 2: Unlike the modern trend of decisions, the editor favors the preservation of the common enemy doctrine as to situations in which public land use authorities have not independently "balanced the equities" and established a predictable set of rules for dealing with water runoff. The currently trendy "reasonable use" doctrine is an anti-development doctrine in that it exposes every developer to potential liability which may not come to roost until much later, when neighboring properties discover that their intended uses may be in conflict with water runoff from the developed parcel. To argue that the neighbor "moved to the nuisance" or that the water discharger should have priority as a first user are a useful, but not dependable defenses in such cases.

Water is naturally occurring, and not really anyone's "fault." In fact, when one discharges water from one's land, it may not even be water that "belongs" to that land. Identifying the real cause of heavy water runoff is always an uncertain science, since development in the general area will cause increased water on a given parcel, and it may be this increase that leads to the greatest difficulty for downstream neighbors.

The editor believes that land use authorities play a definite role in this analysis, since they can take into account regional needs and can develop a neutral (or at least broad based) model of acceptable water runoff policies. Courts and trials are ill equipped to resolve these issues, which fundamentally involve broad public policy issues, and not really the question of whether one party has been unreasonable toward another.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Walter at the ABA. (312) 988 5260 or stacywalter@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.