Daily Development for Thursday, September 1, 1999

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

EMINENT DOMAIN; INVERSE CONDEMNATION: County may be liable for inverse condemnation when it allows a private developer to construct a drainage facility on public land, or land subject to public control, which facility has the effect of channelling surface waters onto adjacent property.

Phillips v. King County, 968 P. 2d 871 (Wash. 1998).

A developer building a 78-home residential housing development received preliminary plat approval for the development conditioned on subsequent County approval of a surface water drainage plant. After failing to obtain a drainage easement from an adjoining property owner, the developer submitted an alternative drainage plan which proposed a sheet flow spreader system to be built in the County right of way. The County approved the plan and allowed the developer to build the "spreaders" in the County-owned right of way within one to five feet from an adjoining owner's property. Despite objections from the adjoining owner regarding additional water flowing on to his property, the County gave final plat approval to the development. The adjoining property owner sued claiming that their land, once generally dry, became flooded and partially unuseable.

The Washington Supreme Court held that the use of County controlled property for the building of part of a drainage system from the conduit of water may give rise to liability on the part of the County. Fundamentally, the County is subject to the same water rules as any other landowner with respect to property it owns.

The court of appeals opinion arguably had ranged further, and could have imposed liability upon the County for approving the developer's design or for accepting ownership of the drainage facilities constructed upon developer's land. The Washington Supreme Court rejected both of these theories.

The court held that If the only action by the County had been to approve the draining system under the regulations, or to accept title to and manage and maintain the storm drainage system, there would be no liability against the County for the design of the sysetm. It noted that to hold otherwise would impede public agencies in the performance of their function of land use control. The County, in performance of its public function, must evaluate and approve drainage plans. This does not mean that it has liability in inverse condemnation when those plans prove to be unworkable. The principle is similar to the notion of sovreign immunity.

The court noted, however, that here the County did not simply act to approve a developer's plans or to allow run off water to pour into the public drainage system. Rather, the Court found that the County had used its property for the specific placement of drainage devices which drained water onto the adjacent owner's property. Therefore, the County may share in any potential liability, along with the developer, for damage to the owner caused by the dispersal of water from the drainage system built on County property.

Comment 1: The Court of Appeals decision had taken the position that where the County is responsible for a physical invasion by water of another's land, then the fact that it is acting in the public interest, or even that is acting non-negligently, is no defense to a claim for inverse condemntation. The Supreme Court really didn't take on that argument here, holding simply that such a ruling would be a really bad thing for governmental operations, and therefore should be avoided.

Although such reasoning could be regarded as specious, the fact is that the law has never treated the dispersion of naturally occurring surface water as akin to a trespass, but always has viewed it under the aegis of nuisance law. If, indeed we do not have a trespass, then it is hard to say that we have a "taking." And the notion that the County, acting under its legitimate police power, necessarily must make decisions that result in diversion of waters over private property strikes the editor as a sound one.

Comment 2: The court notes in dicta that the County would be liable if it negligently maintains a water system that it is given responsibility for, and further, of course holds directly that the County will be liable when it accepts onto its own land the construction of facilities that channel water onto the land of another in violation of the state's surface water laws.

Note also that every state has a different rule for balancing the equities among owners of land as to diversion of surface water runoff. The important issue here is that the County, acting as a landowner, is subject to those laws; while the state, acting as a regulator, is not. And where the county accepts the works on its own land, it doesn't matter that the works have been generated through an action of the county's regulatory power.

Comment 3: The report of the Court of Appeals case is the May 1, 1997 Daily Development, on the DIRT website.

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 16, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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