                                                                                       FILED
                                                                                        OF APPEALS
                                                                                           IS ON11

                                                                          20111 JUAN - 3 AM 8: 36
    IN THE COURT OF APPEALS OF THE STATE OVSNAG                                                       ON


                                                DIVISION II {.                 Y.:
                                                                                      DE      TY




PACIFIC HIGHWAY PARK, LLC,                                              No. 44198 -5 - II


                                  Appellant,


          v.



WASHINGTON STATE DEPARTMENT OF                                     UNPUBLISHED OPINION
TRANSPORTATION,


                                  Respondent.




          MAxA, J. —     Pacific Highway Park, LLC (PHP) appeals the trial court' s dismissal on

summary judgment of its claims against the Washington State Department of Transportation

WSDOT) for inverse condemnation, trespass, and damage to property under RCW 4. 24. 630.

PHP alleged that these claims arose from WSDOT' s alterations to surface water drainage

facilities in a 2001 project to widen nearby, State Route ( SR) 99, which allegedly resulted in the .

deposit of excess stormwater on PHP' s property.

          We hold that ( 1) because PHP did not purchase the property at issue until after the

alleged taking occurred, the subsequent purchaser doctrine precludes PHP from asserting an

inverse   condemnation claim; (    2) questions of fact exist about whether WSDOT' s 2001 drainage


work resulted in an invasion of PHP' s property; and (3) PHP' s trespass and RCW 4. 24. 630

claims are not precluded on other legal grounds. Therefore, we hold that the trial court properly

dismissed      on   summary judgment PHP'   s   inverse   condemnation claim   but   erred   in granting
No. 44198 -5 - II



summary judgment on PHP' s trespass and RCW 4.24.630 claims. We affirm in part, reverse in

part, and remand for further proceedings.


                                              FACTS


        PHP purchased the property at issue in 2006. The property is adjacent to and west of SR

99. The southeastern portion of the property is the lowest part of the property, and this low area

is part of a larger wetland / asin area adjacent to SR 99. The low point of the basin is near the
                            b


eastern property line. The original construction of SR 99 ( more than 80 years ago) cut off

drainage from the west to the east. Stormwater on the west side of SR 99 was conveyed


primarily through an open ditch system to the basin area. The only drainage outlet from the

basin area was a 24 -inch culvert that ran under SR 99 and connected to the county storm sewer

system on the east side.


        In 2001, WSDOT widened SR 99 adjacent to what is now PHP' s property. As part of

this project, WSDOT installed a 36 -inch pipe along the west side of SR 99 to replace the open

ditch stormwater conveyance system. A 54 -inch catch basin adjacent to the PHP property now

collects the water from the 36 -inch pipe. WSDOT also installed- 18 -inch and 24 -inch pipes that


run from the PHP property and connect to the catch basin. The catch basin connects to the pre-

existing 24 -inch culvert under SR 99. Gravity carries the stormwater from the catch basin

through the culvert under SR 99 to WSDOT -
                                         owned stormwater detention and treatment ponds


on the east side of SR 99.


        PHP' s expert Norman Olson stated that although the 18 -inch and 24 -inch pipes appear to


flow into the catch basin, they in fact accommodate flow in both directions depending on the

amount of stormwater water present. According to Olson, at high storm water flows the catch



                                                  2
No. 44198 -5 -II


basin is inundated and backflows through the pipes onto PHP' s property. WSDOT engineer

Fred Tharp confirmed that water could flow from WSDOT' s pipe system back onto PHP' s

property. PHP contends that WSDOT designed this system to allow use of PHP' s property as a

detention pond for excess stormwater in high flow events, which causes the property to be

unusable for planned development.


        PHP applied for a conditional use permit from Pierce County to develop the property for

operation of a semi -trailer storage   business.   Pierce County determined that two wetlands existed

on the property, which would impact PHP' s proposed use of the property. PHP unsuccessfully

appealed to the Pierce County hearing examiner. PHP next filed a Land Use Petition Act

 LUPA) 1 petition in superior court to appeal the hearing examiner' s decision and asserted an

inverse condemnation claim against Pierce County. PHP also included a claim for inverse

condemnation against WSDOT for the alleged storage of stormwater on the property.

        PHP and Pierce County subsequently negotiated an interim settlement. As part of the

settlement, the hearing examiner vacated his earlier decision and approved the conditional use

permit and wetland variance, allowing PHP to develop a portion of its property. By stipulated

order, the trial court dismissed PHP' s LUPA petition and inverse condemnation claim against


Pierce County.

         PHP' s remaining claim was an inverse condemnation claim against WSDOT. PHP filed

an amended complaint, adding claims of trespass and damage to property under RCW 4.24. 630

against WSDOT. WSDOT moved for summary judgment on liability. The trial court granted

WSDOT' s motion for summary judgment and dismissed all of PHP' s claims. PHP appeals.


1
    Chapter 36. 70C RCW.


                                                      3
No. 44198 -5 -II



                                                      ANALYSIS


A.       STANDARD OF REVIEW


         We review a trial court' s order granting summary judgment de novo. Loeffelholz v. Univ.

of Wash., 175 Wn.2d 264, 271, 285 P. 3d 854 ( 2012).              Summary judgment is appropriate where

there is no genuine issue of material fact and the moving party is entitled to judgment as a matter

of   law. CR 56( c); Donatelli      v.   D.R.   Strong Consulting Eng' rs,   Inc., 179 Wn.2d 84, 90, 312 P. 3d


620 ( 2013). " A genuine issue of material fact exists where reasonable minds could differ on the


facts controlling the. outcome       of   the litigation."   Ranger Ins. Co. v. Pierce County, 164 Wn.2d

545, 552, 192 P. 3d 886 ( 2008).          In making this determination, we must view the facts and all

reasonable inferences therefrom in the light most favorable to the nonmoving party. Donatelli,

179 Wn.2d at 90. If reasonable minds can reach only one conclusion on an issue of fact, that

issue may be determined on summary judgment. M. . Mortenson Co. v. Timberline Software
                                              A

Corp.,   140 Wn.2d 568, 579, 998 P. 2d 305 ( 2000).


         The moving party bears the initial burden of showing that there is no genuine issue of

material fact. Young v. Key Pharm. -Inca 1121Wn.2d-216, 225, 770 P.2d 182 (1-989). Amoving

defendant can meet this burden by showing that there' is an absence of evidence to support the

plaintiffs case.     Howell   v.   Spokane & Inland Empire Blood Bank, 117 Wn.2d 619, 624, 818 P. 2d


1056 ( 1991).      The burden then shifts to the plaintiff to come forward with sufficient evidence to

establish the existence of each essential element of the plaintiff's case. Howell, 117 Wn.2d at

625.    If the plaintiff does not submit such evidence, summary judgment is appropriate. Howell,

117 Wn.2d     at   625.
No. 44198 -5 -II



        A nonmoving party must present more than " mere possibility or speculation" to

successfully     oppose   summary judgment. Doe          v.   Dep' t of Transp., 85 Wn. App. 143, 147, 931

P. 2d 196 ( 1997). "[     M] ere allegations, denials, opinions, or conclusory statements" do not

establish a genuine      issue   of material   fact. Int '1 Ultimate, Inc.   v.   St. Paul Fire & Marine Ins. Co.,


122 Wn. App. 736, 744, 87 P. 3d 774 ( 2004).

B.      INVERSE CONDEMNATION CLAIM


         1.      Legal Principles


        Article I, section 16 of the Washington Constitution imposes limits on the State' s

inherent power of eminent domain by requiring the government to pay reasonable compensation

for taking or damaging private property for public use. Phillips v. King County, 136 Wn.2d 946,

956 &   n. 3,   968 P. 2d 871 ( 1998).   Inverse condemnation is an action instituted by a landowner

 to recover the value of property which has been appropriated in fact, but with no formal

exercise of     the   power of eminent   domain."      Phillips, 136 Wn.2d at 957. This theory originally

was developed to provide a remedy because the government could not be sued in tort. Tom v.

State, 164 Wn.        App. 609,   614, 267 P. 3d 361          011-


         The elements of an inverse condemnation claim are ( 1) a taking or damaging (2) of

private property ( 3) for public use ( 4) without just compensation ( 5) by a governmental entity

that has   not   instituted formal   eminent    domain   proceedings.    Phillips, 136 Wn.2d        at   957.   With


regard to the first element, a taking occurs when the government " invades or interferes with the

use and enjoyment of a person' s         property, causing the property to lose          value."   Tom, 164 Wn.


App. at 614. A constitutional taking is a permanent (or reoccurring) invasion of private property




                                                              5
No. 44198 -5 -II



that causes permanent damage. Hoover v. Pierce County, 79 Wn. App. 427, 432, 903 P. 2d 464

 1995).


          2.   Subsequent Purchaser Doctrine


          The alleged inverse condemnation (if any) apparently occurred in 2001, when WSDOT

widened SR 99 and installed the drainage pipes that allegedly allow for the deposit of excess

stormwater on PHP' s property. PHP did not acquire the property until 2006. The threshold

question is whether PHP is precluded from bringing an inverse condemnation action because it

did not own the property in 2001.

          Generally, an inverse condemnation claim is personal to and actionable only by the

owner of the property at the time of the taking. Gillam v. City of Centralia, 14 Wn.2d 523, 530,

128 P. 2d 661 ( 1942);     Hoover, 79 Wn. App. at 433 -34. The property owner' s right to damages

for injury to the property does not pass to a subsequent purchaser unless expressly conveyed.

Crystal Lotus Enters., Ltd. v.        City   of Shoreline, 167 Wn.   App.   501, 505 & n. 8, 274 P. 3d 1054


 2012). This    rule, called      the "   subsequent purchaser   doctrine," is based on the assumption that


the price paid by a subsequent purchaser reflects the damaged state of the property. "See Wolfe v.

Dep' t of Transp., 173 Wn. App. 302, 308 -09, 293 P. 3d 1244, review denied, 177 Wn.2d 1026

 2013) (   where alleged appropriation occurred prior to the purchase of the property, purchase

price presumed     to   reflect   diminished    value);   Crystal Lotus, 167 Wn.   App.   at   505 ( " the price of


property is deemed to reflect its condition at the time of the sale, including any injury because of

government     interference ");      see also Tom, 164 Wn. App. at 614.

           In Hoover, we remanded for entry of a directed verdict dismissing an inverse

condemnation claim of a subsequent purchaser where the flooding problems were evident at the



                                                             6
No. 44198 -5 -II



time of the purchase and county records contained notice of the land' s propensity for flooding.

79 Wn. App. at 434, 436. We held that the purchase price either did reflect or should have

reflected the diminished value of the land caused by its propensity to flood. Hoover, 79 Wn.

App. at 434. Likewise, in Crystal Lotus, Division One of this court rejected an inverse

condemnation claim by a subsequent purchaser for a swamp -like condition that was apparent at

the time of the conveyance, which plaintiffs alleged was a result of stormwater drainage from the

government system that drained onto an adjacent lot, traveled underground, and surfaced on the

plaintiff' s   lot. 167 Wn.    App.    at   503 -05. And in Wolfe we applied the subsequent purchaser


doctrine and dismissed an inverse condemnation claim based on plaintiffs' allegations that


WSDOT' s improvement of a bridge in 1986 caused ongoing erosion to property which they

purchased      in 2003   and   2004.   173 Wn. App. at 307 -09.

         The Minnesota Supreme Court explained the reason for the subsequent purchaser


doctrine:


         The     rationale     behind this      rule   seems       to   be   simple   and   logical. When the
         government interferes with a person' s right to possession and enjoyment of his
         property to such an extent so as to create a ` taking' in the constitutional sense, a
         right to compensation vests in the person owning the property at the time of such
         interference. This right has the status of property, is personal to the owner, and
         does not run with the land if he should subsequently transfer it without an
         assignment of such right. The theory is that where the government interferes with
         a person' s property to such a substantial extent, the owner has lost a part of his
         interest in the       real
                                  property.   Substituted for the property loss is the right to
         compensation.         When the original owner conveys what remains of the realty, he
         does not transfer the right to compensation for the portion he has lost without a
         separate assignment of such right.             If the rule were otherwise, the original owner

         of damaged property would suffer a loss and the purchaser of that property would
         receive a windfall. Presumably, the purchaser will pay the seller only for the real
         property interest that the seller possesses at the time of the sale and can transfer.

Brooks Inv. Co. v. City ofBloomington, 305 Minn. 305, 315 -16, 232 N.W.2d 911 ( 1975).



                                                               7
No. 44198 -5 -II



           Here, PHP did not acquire the property until after the alleged inverse condemnation was

complete. And there is no allegation that PHP obtained any right to damages from the prior .

owner. Therefore, PHP' s inverse condemnation claim is foreclosed if the subsequent purchaser

doctrine   applies.   See Wolfe, 173 Wn.     App.     at   308 -09; Crystal Lotus, 167 Wn.   App.   at   505 & n. 8;


Hoover, 79 Wn. App. at 433 -34.

        3.     Latent Condition Exception


        PHP argues that the subsequent purchaser doctrine should not apply when the condition

giving rise to the inverse condemnation claim was latent and undiscovered at the time the

property was purchased. However, we need not decide the existence of a latent condition

exception to the subsequent purchaser doctrine because under the facts in this case, PHP has not

created a question of fact as to whether WSDOT' s alleged use of the property for stormwater

detention was a latent condition.


        With respect to its trespass claim ( discussed below), PHP argues that there is evidence


that deposit of excess stormwater on the property has occurred beginning in 2001 and has

rendered a portion of the property undevelopalile PHP' s expertOlson opined that after

WSDOT' s drainage work in 2001, stormwater flowed from SR 99 onto PHP' s property during

times of high flow. Olson stated that given the configuration of the drainage facilities and

WSDOT' s      own     2001 drainage   report, "   it is apparent that the property is being used to store

stormwater."     Clerk' s Papers ( CP) at 256 -57 ( emphasis added).


        PHP has provided no evidence that the storage of excess stormwater on PHP' s property

was a latent condition. Further, PHP' s position regarding its trespass claim and Olson' s

testimony are inconsistent with a latent condition claim. Therefore, we need not address whether



                                                             8
No. 44198 -5 -II



there is a latent defect exception to the subsequent purchaser rule that would apply under

different facts.


         4.     New Taking

         Subsequent purchasers may sue for any new takings that occur after acquiring the

property. Hoover, 79 Wn.          App.      at   434. "   A new taking cause of action accrues with each

measurable or provable         decline in        market value of    the property."   Hoover, 79 Wn. App. at 434;

see   Highline. Sch. Dist. 401     v.   Port of Seattle, 87 Wn.2d 6, 15, 548 P. 2d 1085 ( 1976) (          new cause




of action where     the    intensity   of   the interference had increased      over   time);   Buxel v. King County,

60 Wn.2d 404, 407 -09, 374 P. 2d 250 ( 1962) ( new cause of action accrued where minor drainage


problem was exacerbated          by    a new connection).        But to bypass the subsequent purchaser rule,


the   owner must    show     some " `   additional governmental action causing a measurable decline in

market value' "     after the plaintiff's purchase of the property. Wolfe, 173 Wn. App. at 308

 footnote     omitted) (   quoting Hoover, 79 Wn. App. at 436).

          PHP argues that the stormwater conveyance system along SR 99 near its property has

materially changed since it purchased the property in 2006. It contends that a wetland to the

north of the PHP property was filled in and a constructed ditch carries surface water to a pipe

that appears to join the 36 -inch line at the catch basin upstream from PHP' s property. However,

PHP did not submit evidence that WSDOT owned or altered this wetland and did not submit

evidence that the change occurred after PHP purchased the property in 2006. As a result, the

alleged filling in of the wetland does not support PHP' s claim because there is no evidence that it

constituted government action or that it occurred after PHP purchased its property.




                                                                9
No. 44198 -5 - II



          We hold that the subsequent purchaser doctrine precludes PHP from pursuing an inverse

condemnation claim against WSDOT and that no new governmental taking has occurred since

PHP purchased the property. Accordingly, we affirm the trial court' s summary judgment order

dismissing PHP' s inverse condemnation claim.

D.        TRESPASS AND RCW 4. 24. 630 CLAIMS


          PHP' s amended complaint asserted claims for common law trespass and damage to


property       under   RCW 4. 24. 630 ( 1) ( collectively " trespass   claims ").   WSDOT argues that the trial


court   properly dismissed these        claims2 because ( 1) any trespass claim was subsumed in the

inverse   condemnation cause of action, (        2) PHP produced no evidence of any actual invasion of

its property, ( 3) PHP produced no evidence that alleged invasion resulted from WSDOT' s 2001


project, (     4) the common enemy doctrine precludes PHP from recovering for trespass relating to

surface water, and ( 5) the statute of limitations bars PHP' s trespass claims. We reject WSDOT' s


arguments, and hold that the trial court erred in granting summary judgment on PHP' s trespass

and RCW 4. 24. 630 claims.


          1.      Inverse Condemnation and Trespass Claims


          WSDOT argues that PHP' s trespass claims are subsumed in the inverse condemnation


claim. We disagree.


          First, because we have held here that PHP cannot assert an inverse condemnation claim


under these facts, there is no inverse condemnation claim into which PHP' s trespass claims could


2
    The trial court did not expressly mention the trespass and RCW 4.24. 630 claims in either its
memorandum decision or its order granting summary judgment. However, the trial court' s order
granted summary judgment dismissal on all claims, which includes the trespass and waste
claims.




                                                          10
No. 44198 -5 -II



be subsumed. We need not decide whether a trespass claim would be subsumed into a viable

inverse condemnation claim arising from the same facts.

        Second, WSDOT cites no authority holding that a party cannot assert both inverse

condemnation and    trespass   claims.   In fact, in Crystal Lotus —one of the cases WSDOT cites —


the court addressed both inverse condemnation and continuing trespass without indicating that

the inverse   condemnation claim precluded      the trespass   claim.   167 Wn. App. at 504 -506. And

our Supreme Court has stated that a trespass upon property is not necessarily a taking just

because the trespasser is a public entity. Dickgieser, 153 Wn.2d at 541; Olson, 7.1 Wn.2d at 284

  Every trespass upon, or tortious damaging of real property does not become a constitutional

taking or damaging simply because the trespasser or tortfeasor is the state or one of its

subdivisions, such as a county or a city. ").


        WSDOT relies primarily on a footnote in Wolfe, 173 Wn. App. at 306 n.2, in which we

stated that the takings claim subsumed the trespass claim " as discussed with counsel at oral

argument."    Because our statement in Wolfe is based on an unknown discussion with counsel at


oral argument rather than any cited legal authority and because it is inconsistent with the cases _.

noted above, it is not persuasive here. Accordingly, we hold that PHP' s trespass claims are not

subsumed into PHP' s dismissed inverse condemnation claim.


        2.     Invasion of Property

        PHP presented little direct evidence that some trespass or damage relating to the invasion

of stormwater has occurred on its property as a result of the 2001 SR 99 project. However, we

must view the evidence and all reasonable inferences therefrom in the light most favorable to




                                                     11
No. 44198 -5 -II



PHP. Donatelli, 179 Wn.2d                at   90.   Considering the evidence in this light, we hold that there is a

question of fact on the existence of some invasion of PHP' s property.

          A common law trespass is " an intrusion onto the property of another that interferes with

the   other' s right   to   exclusive possession."         Hedlund v. White, 67 Wn. App. 409, 418 n. 12, 836

P. 2d 250 ( 1992). "        To establish intentional trespass, a plaintiff must show ( 1) invasion of

property affecting          an   interest in   exclusive possession, (   2)   an   intentional   act, ( 3)   reasonable


foreseeability the act would disturb the plaintiff' s possessory interest, and ( 4) actual and

substantial   damages."           Crystal Lotus, 167 Wn. App. at 506. RCW 4.24. 630 ( 1) provides:

          Every person who goes onto the land of another and who removes timber, crops,
          minerals, or other similar valuable property from the land, or wrongfully causes
          waste  or  injury to the land, or wrongfully injures personal property or
          improvements to real estate on the land, is liable to the injured party for treble the
          amount of the damages caused by the removal, waste, or injury.

Both claims require that the defendant' s conduct cause some invasion of or entry onto the

plaintiff s property.


          PHP argues that WSDOT invaded and damaged its property, alleging that the stormwater

system WSDOT installed results inthebackflow of stormwater onto PHP' s property.- WSDOT

argues that summary judgment is appropriate on this issue because even if WSDOT' s stormwater

system theoretically allows a backflow of stormwater onto PHP' s property under certain

conditions, there is no evidence that this backflow actually has occurred.

           Upon initial review, WSDOT appears to have the better argument. No PHP witness —


including    PHP   manager          Richard Wells       and   experts Olson   and    Steven Neugebauer —has ever


actually observed water coming out of the SR 99 stormwater system onto the PHP property.

And PHP produced no clear evidence that excess stormwater has in fact been present on PHP' s




                                                                 12
No. 44198 -5 -II



property. PHP' s key evidence is Olson' s declaration, in which he opines that WSDOT' s system

is designed so that during high stormwater flows water will backflow onto PHP' s property. But

this opinion standing alone is not enough to demonstrate that WSDOT' s system has in fact

deposited excess stormwater onto PHP' s property.

         Nevertheless, reading Olson' s declaration in the light most favorable to PHP and drawing

all reasonable inferences in PHP' s favor leads to the conclusion that PHP has created a question


of fact on whether an invasion of its property has occurred. The determining factor is that

Olson' s declaration refers to WSDOT' s storage of stormwater on PHP' s property in the present

tense.   Olson   states: (   1) "   WSDOT uses the [ PHP] property to store this stormwater at times of

high flow ", CP    at   255 (   emphasis added); (      2) "[   a] t   times   of   high   stormwater   flow ... hydraulic


pressure   forces backflow ...           on to the [ PHP] property, where the excess stormwater is stored in

what ...    has many     of the characteristics of a        detention      pond ",     CP at 256 ( emphasis added and


emphasis omitted); and (            3) "[ g] iven the facts ...    regarding the as -built configuration of the

WSDOT -
      owned          storm system ...          it is apparent that the property is being used to store

stormwater.      CP at 256 -57 ( emphasis added)-.


           WSDOT argues that Olson' s testimony is based only on theory.. And in fact, Olson does

not expressly state that he actually has observed the conditions he describes. However, it is

reasonable to infer that Olson has visited and inspected the property. He states that he prepared

detailed stormwater studies of the property and surrounding areas and inspected the stormwater

piping, which generally would require a property visit. As a result, viewed in a light most

favorable to PHP, the evidence leads to a reasonable inference that Olson' s present tense




                                                                  13
No. 44198 -5 -II


descriptions are based on his personal observations of excess stormwater being stored on PHP' s

property.


        We hold that PHP has presented enough evidence and /or inferences from that evidence to

create a question of fact on whether there has been an invasion of its property. We emphasize

that this holding is based primarily on inferences and not on direct evidence. Accordingly, on

remand, WSDOT will be free to challenge the basis for Olson' s testimony and explore further
                                                      3
whether some    invasion actually has     occurred.




        3.     Cause of Invasion


        WSDOT argues that even if excess stormwater has invaded PHP' s property, the 2001

drainage work did not cause that invasion. WSDOT points out that the PHP property had

drainage problems long before 2001, and that PHP presented no evidence that the 2001 drainage

work altered   the   drainage in the   area or resulted   in any trespass   or   damage to PHP'   s




        However, Olson provided clear testimony that WSDOT' s 2001 work altered the drainage

system and operated to deposit excess stormwater on PHP' s property. Crediting PHP' s evidence

that excess stormwater did invade PHP' s property, there is also enough evidence to demonstrate

that the invasion may have resulted from WSDOT' s conduct. Accordingly, summary judgment

is not appropriate on this issue.




3 Our opinion should not be read as precluding WSDOT from bringing another summary
judgment motion on this issue if appropriate.


4 WSDOT actually made this argument in the context of PHP' s inverse condemnation claim, but
the same arguments apply to the trespass and RCW 4. 24. 630 claims.


                                                          14
No. 44198 -5 - II


          4.      Common Enemy Doctrine

          WSDOT argues that because this case involves the management of surface water, the


common enemy doctrine bars PHP' s trespass and RCW 4.24. 630 claims.

          The " common enemy doctrine" limits landowners' liability for impacts from their

management of surface water, which is defined as water from precipitation or escaping from

streets or rivers which ceases to " maintain its identity and existence as a body of water."

Fitzpatrick, 169 Wn.2d at 607. Under the common enemy doctrine:

          Water that meets the definition of surface water " 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. ". Cass [ v. Dicks], 14 Wash. [ 75,] 78, 44 P. 113
               1896)]. The common enemy rule, therefore, provides that "[ i] f one in the lawful
          exercise     of   his   right    to   control,     manage       or   improve his      own   land, finds it

          necessary to protect it from surface water flowing from higher land, he may do so,
          and    if damage thereby         results    to   another,     it is [ damage   without   remedy]." [ Cass,
           14 Wash. at 78].


Fitzpatrick, 169 Wn.2d            at   607 ( some    alterations   in   original).   Under this    rule, "   the flow of


surface water along natural drains may be hastened or incidentally increased by artificial means,

so long as the water is not ultimately diverted from its natural flow onto the property of another."

Wilber Dev.       Corp.   v.   Les Rowland Const. Inc., 83 Wn.2d 871, 875, 523 P. 2d 186 ( 1974);                      see




Trigg    v.    Timmerman, 90 Wash. 678, 682, 156 P. 846 ( 1916) (                    no liability for collecting water in a

ditch).


          However, the common enemy doctrine does not apply when a person artificially collects

water and       directs that   water onto another' s         property. See      Feeley   v.   E.R. Butterworth & Sons, 42


Wn.2d 837, 842, 259 P. 2d 393 ( 1953) (                cannot convey by artificial means, a concealed drain

pipe);    Harkoff v.   Whatcom          County,   40 Wn.2d 147, 151, 241 P. 2d 932 ( 1952) (             county had duty to




                                                                   15
No. 44198 -5 -II



construct roadside drainage ditches /culverts of sufficient capacity to carry drainage waters in a

manner as not    to   overflow onto   the   property   of others).   Our Supreme Court stated that


        municipal authorities may pave and grade streets and are not ordinarily liable for
        an increase in surface water naturally falling on the land of a private owner where
        the work is properly done, they are not permitted to concentrate and gather such
        water into artificial drains or channels and throw it on the land of an individual
        owner in such manner and volume as to cause substantial injury to such land and
        without making adequate provision for its proper outflow, unless compensation is
        made....    Surface waters may not be artificially collected and discharged upon
        adjoining lands in quantities greater than or in a manner different from the natural
        flow thereof.

Wilber, 83 Wn.2d at 874 -875 ( internal citations omitted).


        The prohibition described in Wilber applies here. PHP alleges that WSDOT replaced the

roadside ditch with a 36 -inch buried pipe that gathers water from outside the natural drainage

basin. PHP also argues that the pipe is a different method and carries a different amount of water

onto the PHP property. For instance, at high flows the ditch flooded several adjoining properties,

but now more water reaches the catch basin and more rapidly by way of the pipe, and any water

that cannot pass though the 24 -inch culvert under SR 99 floods onto the PHP property

exclusively. -


        According to Olson, calculations from WSDOT' s hydraulic report showed that replacing

the open ditch with 24 -inch pipe would be inadequate in times of high flows. WSDOT upsized

the roadside pipe to 36 inches to move the water to the catch basin adjacent to the PHP property

more efficiently, but WSDOT did not upsize the existing pipe that runs under SR 99. PHP
argues that this shortcut created a bottleneck and that WSDOT installed two pipes connecting its

catch basin to the PHP property so stormwater that could not flow under the highway would

backflow onto the PHP property.




                                                           16
No. 44198 -5 -I1



        Based on the evidence that WSDOT collected surface water into a pipe that transported

the water to a smaller culvert under the highway and provided a pipe to allow backflow onto

PHP' s property for large storm events, it cannot be said as a matter of law that the common

enemy doctrine would bar PHP' s claims for trespass and damage to land under RCW 4.24. 630.

There is at least a question of fact on the doctrine' s applicability. Accordingly, we hold that the

common enemy doctrine does not provide a basis for summary judgment dismissal of PHP' s

trespass and RCW 4. 24. 630 claims.


        5.      Statute of Limitations


        RCW 4. 16. 080 imposes a three -year statute of limitations for trespass or waste upon real


property. WSDOT argues that this statute of limitations forecloses PHP' s trespass and RCW

4.24. 630 claims because it committed no relevant acts resulting in the invasion of PHP' s

property within the three -year statute of limitations. WSDOT apparently claims that any trespass

of or damage to PHP' s property first occurred, and the statute of limitations started running, at

the date of purchase in November 2006, which is more than three years before PHP filed its

initial complaint against WSDOT in March 2010 and its amended complaint asserting the

trespass and RCW 4. 24. 630 claims in February 2012. However, because genuine questions of

material     fact   remain   concerning ( 1)   when   the   alleged   invasion first   occurred, (   2) when it was


reasonably discoverable, and ( 3) whether the alleged trespass is abatable ( and therefore

continuing in nature) or permanent, we hold that the statute of limitations is not a basis for

summary judgment dismissal of the trespass and RCW 4.24.630 claims.

        Washington recognizes the theory of continuing trespass, which impacts application of

the statute of limitations. See Woldson v. Woodhead, 159 Wn.2d 215, 219, 149 P. 3d 361 ( 2006).




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A claim for trespass will be barred if not brought within three years of the injury unless it may

properly be      characterized as a     continuing trespass.            Fradkin v. Northshore Util. Dist., 96 Wn.


App.   118, 124, 977 P. 2d 1265 ( 1999).         For continuing trespass, the statute of limitations serves

only to limit recoverable damages and does not preclude an action against the. trespasser.

Wallace    v.   Lewis     County,   134 Wn.   App.    1, 15, 137 P. 3d 101 ( 2006). The rule is that the statute


of limitations only excludes recovery for any trespass occurring more than three years before the

complaint       is filed. Woldson ,     159 Wn.2d at 219. The property owner can recover for any

continuing trespass occurring less than three years before the filing date until the date of trial.
Woldson, 159 Wn.2d at 222 -23.


         The difference between a permanent and a continuing trespass is that a continuing

trespass is     abatable, while a permanent       trespass       is    not.   Fradkin, 96 Wn.   App.   at   125. " A


trespass is abatable, irrespective of the permanency of any structure involved, so long as the

defendant can take curative action to stop the continuing damages. The condition must be one

that can   be    removed ` without unreasonable            hardship      and expense.' "   Fradkin, 96 Wn. App. at

125 -26 (footnote omitted) ( quoting Mangini                v.   Aerojet- General     Corp.,   12 Cal: 4th 1087, 1097,


912 P. 2d 1220 ( 1996)). "          Periodic flooding due to defective construction of a drainage system is

a recognized       fact   pattern   in the category   of   continuing trespass."       Fradkin, 96 Wn. App. at 126.

However, whether a trespass is continuing or permanent generally is a question of fact. See

Fradkin, 96 Wn. App. at 126.

          Here, determining whether the statute of limitations bars recovery for PHP' s trespass and

RCW 4.24. 630 claims requires additional factual development in the superior court. There are

material questions of fact about when injury first occurred, when it should have been discovered,



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and whether the alleged trespass is abatable. Therefore, we agree with PHP that the statute of

limitations affirmative defense would not be a basis for summary judgment dismissal of PHP' s

trespass and RCW 4.24. 630 claims.


E.      ESTOPPEL REGARDING EXISTENCE OF WETLAND


        WSDOT argues that PHP should not be allowed to assert claims against it premised on

WSDOT' s alleged use of its property for stormwater detention when the existence of wetlands

on PHP' s property has been legally established. WSDOT contends that the existence of the

wetlands was established by final findings from PHP' s administrative land use dispute with

Pierce County. According to WSDOT, because there are wetlands on the property, there cannot

be detention ponds on the property, and therefore WSDOT cannot be liable for creating detention

ponds. We disagree.


        Even if we assume that PHP should be estopped from relitigating the existence of

wetlands, it is not clear why the presence of preexisting wetlands would defeat PHP' s inverse

condemnation claim or trespass claims against WSDOT. The viability of these claims does not

depend on the resolution of whether or riot a wetland exists on the property. Olson' s calculations
                                                                    "

show that the WSDOT- caused flooding flows beyond the boundary and buffer of the wetland

PHP stipulated to for permitting purposes. Therefore, the presence or absence of a wetland is

relevant only to the amount of damages. Further, whether there is a wetland or not, WSDOT' s

alleged use of the area as a detention facility could constitute a taking, trespass, or result in

damage to the property. Therefore, we hold that WSDOT has not shown 'that estoppel relating to

the existence of wetlands on PHP' s property requires summary judgment dismissal of PHP' s

inverse condemnation claim or trespass and RCW 4. 24. 630 claims.




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        We affirm the superior court' s order granting summary judgment to WSDOT on PHP' s

inverse condemnation claim, but reverse the dismissal of PHP' s trespass and RCW 4. 24. 630

claims. We remand for further proceedings.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




We concur:




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