Grundy v. Brack Family Trust

213 P.3d 619

151 Wn. App. 557

Evelyne GRUNDY, Respondent/Cross Appellant, v. The BRACK FAMILY TRUST, Calvin Brack and Joyce M. Brack, Trustees, Appellants/Cross Respondents.

No. 37251-7-II.

Court of Appeals of Washington, Division 2.

August 11, 2009.

Alexander Weal Mackie, Eric S. Merrifield, Perkins Coie LLP, J. Christopher Baird, Attorney at Law, Seattle, WA, for Appellant/Cross-Respondent.

Allen T. Miller, Attorney at Law, Olympia, WA, for Respondent/Cross-Appellant.

VAN DEREN, C.J.

¶ 1 The parties ask us to fashion new law regarding sea water and bulkheads. The Bracks¹ ask us to create an exception to trespass law for sea water, similar to the common enemy doctrine, which our Supreme Court in Grundy v. Thurston County, 155 Wash.2d 1, 10, 117 P.3d 1089 (2005) expressly held to be inapplicable to sea water. Evelyn Grundy asks us to articulate a rule that would essentially require that all property owners along Puget Sound and, necessarily, along all ocean shores, construct bulkheads the same height as their neighbors' bulkheads to avoid trespass liability for waves splashing sea water on their neighbors' properties.

¶ 2 We refuse the invitation to create new law and hold that, under the facts of this case, the Bracks are not liable for trespass for acts that the trial court found were neither intentional nor wrongful and that caused de minimis damage to Grundy. We reverse.

FACTS

¶ 3 The Bracks purchased property on Johnson Point in Thurston County in 1991. Evelyne Grundy has resided on property adjacent to the Bracks' land since 1981. In 1997 or 1998, the Bracks placed sandbags behind their existing bulkhead. In 1999, the Bracks raised their bulkhead's height approximately 18 to 21 inches.

¶ 4 Before the Bracks raised their bulkhead, it was approximately 12 inches lower than Grundy's bulkhead and "water from Puget Sound would intermittently overtop [the Bracks'] bulkhead and flood the lower portion of [their] property ... during winter months in conjunction with high tides and weather events producing high winds." Clerk's Papers (CP) at 880. After the Bracks raised their bulkhead, water would "cours[e] along the raised portion of the [Bracks'] bulkhead" and would "find[] entrance" once it reached Grundy's property. Though some wave splash entered Grundy's property during winter months before the Bracks raised their bulkhead, "the intensity and amount of the invasion from this splash increased after the Brack bulkhead was raised." CP at 881.

¶ 5 Grundy originally brought a nuisance claim against the Bracks.² Grundy, 155 Wash.2d at 4, 117 P.3d 1089. The trial court granted summary judgment to the Bracks, finding that Grundy "did not timely seek review under the Land Use Petition Act." Grundy, 155 Wash.2d at 5, 117 P.3d 1089. We affirmed, holding in part that the common enemy doctrine applied and, therefore, the Bracks were entitled to protect their land from sea water.³ Grundy v. Brack Family Trust, 116 Wash.App. 625, 67 P.3d 500 (2003), rev'd sub nom. Grundy v. Thurston County, 155 Wash.2d 1, 117 P.3d 1089 (2005). The Supreme Court reversed, holding that the common enemy doctrine applies only to surface water and does not apply to sea water. Grundy, 155 Wash.2d at 8-10, 117 P.3d 1089.

¶ 6 On remand, Grundy added trespass by water and illegal diversion claims. Grundy requested abatement of the Bracks' raised bulkhead and damages "for repair of landscaping following repeated flooding as well as for fear and anguish caused by repeated flooding and the possibility of losing [her] home."⁴ CP at 273.

¶ 7 The trial court concluded that the Bracks had a duty to not cause sea water to trespass onto Grundy's property. The trial court also found:

25. ... [Grundy] has only experienced minor water intrusion as a result of the raising of the [Bracks'] seawall....

26. ... [I]n the absence of a cap on her bulkhead, sea spray and splash causes occasional debris and yellowed and dead grass on a portion of [Grundy's] property ... [and] this limited debris and yellowed and dead grass on [Grundy's] property has been caused, on certain occasions, by high wind and waves amplified by the increase in height of [the Bracks'] bulkhead.

....

34. ... [T]he raising of the bulkhead on [the Bracks'] property has not caused a significant injury or appreciable harm to [Grundy] or [Grundy's] property

....

36. ... [R]aising of [the Bracks'] bulkhead did not proximately cause a significant compensable injury to [Grundy], other than contributing to the deposit of debris on a portion of [Grundy's] property and areas of yellow and dead grass[.]

....

44. The Court finds a water trespass of a limited nature that the Court finds is attributable to water intrusion and sea spray associated with increased energy resulting from the increase of [the Bracks'] bulkhead.

44a. The Court's definition of water intrusion includes jetsam, flotsam and debris left by water; but the Court specifically finds that the term does not include flooding.

....

46. ... [T]he water trespass ... could be averted or remedied by the placement of a "cap" or "lip" atop [Grundy's] bulkhead ....

47. Based on the post trial representations of the parties the installation of a cap or lip will cost approximately $16,000[].

CP at 883-87.

¶ 8 The trial court concluded that Grundy had not suffered a private nuisance because the Bracks had not "unreasonably annoyed, injured or endangered her comfort, repose[,] health or safety or substantially interfered with her use of property." It further concluded that Grundy "failed to carry her burden of showing that [the Bracks'] raising of their bulkhead caused flooding of [her] property." CP at 889. It found, however, that the Bracks "raised their bulkhead without considering the consequences to Grundy" and that "water thereby intruded onto [Grundy's] property." Further, it concluded that Grundy "has established water trespass in that the Court finds that debris and yellowed and dead grass on [Grundy's] property has been proximately caused[] by water intrusion and sea spray from high wind and waves amplified by the increase in height of [the Bracks'] bulkhead."⁵ CP at 891. The trial court found that the Bracks' actions were neither intentional nor wrongful.

¶ 9 The trial court determined that "abatement of the increase in [the Bracks'] bulkhead would not be an appropriate equitable remedy" because "removing the increased portion ... could be considered environmentally unsound due to the impact of fine sediments on fish habitats and other impacts associated with excavation and cutting concrete along the shoreline." CP at 885. It awarded Grundy $16,000 as an "exercise [of] its equitable powers." CP at 891. The trial court also awarded Grundy $22,500 in attorney fees "pursuant to RCW 4.24.630." CP at 888.

¶ 10 The Bracks appeal.

ANALYSIS

I. Common Enemy Doctrine

¶ 11 The common enemy doctrine originated in England in approximately 1828, in response to flooding caused by sea water. See Lamb v. Reclamation Dist. No. 108, 73 Cal 125, 130, 14 P. 625 (1887) (citing Rex v. Commissioners, (1828) 8 Barn. & C. 355 (K.B.)); see also Weaver v. Bishop, 206 Cal. App.3d 1351, 1356, 254 Cal.Rptr. 425 (1988). Washington courts first applied the common enemy doctrine in Cass v. Dicks, 14 Wash. 75, 44 P. 113 (1896). In Cass, our Supreme Court held that "surface water, caused by the falling of rain or the melting of snow, and that escaping from running streams and rivers, is regarded as an outlaw and a common enemy against which anyone may defend himself, even though by so doing injury may result to others." It explained that "such water is a part of the land upon which it lies, or over which it temporarily flows, and that an owner of lands has a right to the free and unrestrained use of it." Cass, 14 Wash. at 78, 44 P. 113. The Cass court recognized that sea water was also a common enemy when it further articulated:

"If a land[-]owner whose lands are exposed to inroads of the sea, or to inundations from adjacent creeks or rivers, erects sea-walls or dams, for the protection of his land, and by so doing causes the tide, the current, or the waves to flow against the land of his neighbor, and wash it away, or cover it with water, the land-owner so causing an injury to his neighbor is not responsible in damages to the latter, as he has done no wrong, having acted in self-defense and having a right to protect his land and his crops from inundation."

Cass, 14 Wash. at 79, 44 P. 113 (emphasis added) (quoting Edward P. Weeks, Damnum Absque Injuria 3-4 (1879)).

¶ 12 We have found no Washington cases directly dealing with trespass by sea water since the introduction of the common enemy doctrine, until this one. No previous Washington case (1) excluded sea water from the definition of surface water or (2) excluded sea water from the application of the common enemy doctrine. But in 2005, our Supreme Court expressly held that the common enemy doctrine does not apply to sea water. Grundy, 155 Wash.2d at 10, 117 P.3d 1089. It restricted "the common enemy doctrine to surface water" and noted that "`[t]he chief characteristic of surface water is its inability to maintain its identity and existence as a body of water.'" Grundy, 155 Wash.2d at 10, 117 P.3d 1089 (quoting Halverson v. Skagit County, 139 Wash.2d 1, 15, 983 P.2d 643 (1999)). Because "[s]torm-driven waves in Puget Sound remain part of a definite and identifiable body of water when splashing onto waterfront property," the court held that these waves are not surface water. Grundy, 155 Wash.2d at 10, 117 P.3d 1089. The court characterized "[t]he mention of seawater in [Cass as] obiter dictum and [it was], therefore, not controlling" because the facts in Cass did not "concern[] protection of land from the sea." Grundy, 155 Wash.2d at 9, 117 P.3d 1089. It did not address the implications or application of its holding in actions concerning sea water splashing onto neighboring properties.⁶

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