for Thursday, September 1, 1999
Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
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).
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.
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
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.
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
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