                                                                                               FlL.E:
                                                                                                    D
                                                                                    LCOURT OF APPEALS


                                                                                   2013 NAAR    9 !              4I
                                                                                     r     0    V     SI'1NG 1
                                                                                                        l

                                                                                   Sv
                                                                                           OE 0 Xy




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II

KYLE WOOD and TAMMY WOOD, husband                                No..42110 1 II
                                                                           - -
and wife,                                        I
                                 Appellants,

        V.




MASON COUNTY,                                              UNPUBLISHED OPINION


                                 Respondent,

MICHAEL DERMOND and NORMA
DERMOND, husband and wife; and JOHN
DOE,

                                 Defendants


              BRINTNALL, J.
         QUINN-                   —    Kyle and. Tammy Wood own property adjacent to Michael

Dermond      on   a   60 foot marine bluff above Totten Inlet in Mason
                         -                                               County.    In June 2007,

Dermond cleared an unattached stump, blackberry bushes, and at least one tree from the portion

of his property abutting the bluff face. Approximately 18 months later, a landslide occurred at

the bluff's edge during a severe rainstorm. The slide damaged a large section of the Dermond

property -   including the area Dermond had earlier clearedand a seven- to ten foot section of
                                                           —                    -

the   adjoining Woods' property.      The Woods sued Dermond and Mason     County alleging, inter
No. 42110 1 II
          - -



alia, negligent stormwater management, statutory waste, trespass by water, and civil conspiracy.

The trial court dismissed all of the claims against the County on summary judgment.

          The Woods appeal, arguing that (1) County is partially liable for Dermond's damage
                                            the

to the bluff because it failed to enforce its resource ordinances; (
                                                                   2)the.County committed

statutory waste through trespass by water; and (3)after the landslide, the County conspired with

Dermond to construct a drainage system without requiring the appropriate permits. Because the

County has no liability for Dermond's brush clearing and neither committed statutory waste nor

conspired with Dermond to trespass on Woods' property, we affirm.
                                             FACTS


BACKGROUND-


          In June 2007, Dermond began constructing a storage shed on his marine bluff property

above Totten Inlet in Mason County. In preparation for this work, a crew removed trees in the

area where the shed would be placed and an excavator dug up tree stumps and removed the brush

and groundcover. Dermond also asked the excavator to cut down a cherry tree that was growing

upfrombelow the bank the -marine bluff aridto remove blackberry bushes and an unroote - - - - -
       -                                   - -                         - -

tree stump near the bluff's edge. In making the attempt, the excavator accidentally knocked the

stump over the side of the marine bluff to the beach below.

          Concerned over the activity at the Dermond property, adjacent property owner Tammy

Wood called a neighbor and instructed her to contact the County to lodge a complaint. A week

later, Mason County Planner Stephanie Pawlawski inspected the Dermond property in response
to the complaint. Dermond was not present during the inspection but as far as Pawlawski was

 1
     Pawlawski married after this lawsuit commenced and is now " tephanie Andrews."For clarity,
                                                               S
We refer to her as "Stephanie Pawlawski"throughout with no disrespect intended.
                                                NA
No.42110 1 II
         - -



able to discern, she " didn'
                           t    see   any work that involved   a   chain.saw   near the bluff's edge.

Clerk's Papers (CP) at 183. Pawlawski also looked over the bluff's edge and did not see fresh

debris, cut trees, or "anything that was a cause for concern." CP at 183. After discerning no

code violations, Pawlawski left a letter at Dermond's house informing him of the complaint.

       Dermond called Pawlawski as soon as he found the letter to ask whether there was a

problem and if he needed to do anything. Pawlawski suggested that Dermond should replant the
disturbed area with native ground cover, like kinnikinnick, but did not indicate that any code

violations had occurred. Dermond did not tell Pawlawski that he had removed any trees from the

property. Pawlawski had no further contact with Dermond after this exchange.

       Approximately 18 months later, a landslide occurred at the bluff's edge, damaging a large
section of the Dermond property, including the area Dermond had earlier cleared, and a seven- to

ten foot section of the adjoining Woods' property. Over five inches of rain had fallen in the area
     -

during the 24 hour period preceding the slidethe type of storm that only occurs, on average,
              -                               —

once every 50 to 100 years and snow on the ground contributed to the unnaturally high water
                           —
concentrations in the soil.. -
               -          Theareaof the bluff damaged slide was far from the
                                                                      -

Dermond and Wood homes that the homes would not be affected for "
                                                                the next 30 to 60 years"

CP at 65)and that according to the Woods' geologic expert,

        f]
         rom    a   geologic standpoint - and we're not - I' not getting into the economics
                                                            m
        of the slide and the sale   price  because that's not my area of expertise - no, it'
                                                                                           s
       nothing that is going to adversely affect [the Woods']property significantly into
       the future.


CP at 65. Although the slide did not immediately threaten the structural integrity of the Woods'
home, an appraiser determined that the slide stigmatized the property and devalued it
approximately 50 percent.


                                                   3
No. 42110 1 II
          - -



        Following the slide, someone again complained to the County about the Dermond

property.   Mason County Planning Department Enforcement Officer Christine Clark inspected

the site and decided to "reopen[] case for vegetation removal within 50 feet of the buffer and
                                the

subsequent landslide that's now occurred."CP at 191. Clark informed Dermond that he needed

to work with a county planner and a county-
                                          approved geologist to create a slope stabilization

plan.

        Dermond hired geologist William Halbert to design the slope stabilization plan and in

February 2009, Halbert met with Dermond and Mason County Senior Planner Allan Borden at

the Dermond property.       Halbert concluded that to best address slope deterioration, Dermond

should collect the stormwater coming from the County culvert under Bloomfield Road in a catch

basin and channel it to the beach at Totten Inlet some 700 feet away. Halbert also suggested that

Dermond build two additional catch basins on the property and a French drain to collect free-

standing surface   water   and   groundwater running   downhill. toward the bluff. Dermond asked


Borden whether permitting would be required for the drainage project; Borden "felt that if

 Dermond - had -his g eolog - attest -p osed drainage
                his -- tthe - ro
                              ttt - -
                                  o   p      -     g                        g -- suitable --
                                                                               a           solutionand - -- - --
                                                                                                   -


maintaining as best as possible slope stability, that would be adequate" and that no permits

would be required. CP at 149.

        Before beginning construction, believing the basin would be within the County's right of-
                                                                                              -

way for Bloomfield Road, Dermond sought a permit from Mason County Public Works

Department    to build the catch basin below the      County   culvert.   Mason County District Road

Supervisor Larry Forsman inspected the proposed culvert site at the Dermond property and
approved the "Road Access Permit"so long as the catch basin was not installed directly onto the
culvert and Dermond himself maintained the catch basin.

                                                  4
No. 42110 1 II
          - -


       Dermond constructed the drainage system           according    to   Halbert's   plans.   During

construction, Dermond rendered inoperable the outlet pipe of an unpermitted curtain drain

originating on the Woods' property without telling the Woods (or the County).
PROCEDURE


       On August 12, 2009, the Woods sued Dermond and the County, alleging that (1)

Dermond negligently excavated the area above the bluff, without permits, and this activity

contributed to the 2009 landslide, which adversely affected their property value; 2) County
                                                                                  ( the

failed to adequately respond to the complaint made to the County about the clearing; 3)the
                                                                                     (

County failed to supervise Dermond's replanting of native vegetation on the bluff and incorrectly

concluded that no code violations had occurred; and (4). County's Bloomfield Road culvert
                                                      the

negligently delivers " unregulated" stormwater onto the Dermond property and that water

contributed to the landslide. In conclusion, the Woods' complaint stated,

       The   mass   wasting   event and   property damage . . .      are the consequence of
       Dermond's      .   negligent and illegal land clearing actions, Dermond's
                            .     .                                                             .   .    .
       negligent failure to take any steps to control stormwater in the excavated area,
       Mason County's failure to enforce, and Mason County's stormwater discharge,
       has -caused -property -damage,including- loss -of - -and -vegetation -constituting -
                                                 -       soil
       waste and injury to land and to shrubs and trees under RCW 4.4. and has
                                                                  630
                                                                    2
       damaged Wood.
CPat7.


       In June 2010, the Woods amended their complaint. In addition to the claims above, the

Woods alleged that

       Mason County and Dermond also acted in concert to accommodate Dermond's
       clearly illegal clearing and grading in a shoreline area, and critical area, and to

2
  During the meeting with Halbert, Dermond discovered an outlet pipe for a,curtain drain
originating on the Woods' property. Dermond assumed the curtain drain pipe must relate to the
Woods' septic field. Dermond could find no record of the curtain drain on file with the County.
                                                  5
No. 42110 1 II
          - -



       accommodate the County's illegal dumping of water from its roadway impervious
       surface at the top of both private parties' property....
                                                             Dermond agreed to build a
       drainage system to catch and transport the County's roadway water to Puget
       Sound..  The County required no application or permit, and no engineered plans,
       and did not obtain the required environmental reviews for this activity, but
       knowingly allowed Dermond to proceed in violation of the law. The drainage
       system Dermond installed is partially located on [the Woods']property. Neither
       the County nor Dermond requested permission from Woods to install this system
                                                                                      31
       on   Woods' property, but did   so   in   flagrant trespass of Woods' property. [

CP at 17.


       The County moved for summary judgment, arguing that the public duty doctrine barred

the County from liability, there was no evidence that the County committed statutory waste, and
the Woods had failed to present any factual          or   legal grounds   for   a   civil   conspiracy   claim. In


response, the Woods argued that the public duty doctrine was inapplicable to the case because

managing stormwater is a propriety function or, if the public duty doctrine were applicable, the

failure to enforce"exception would create liability for the County. The Woods also argued that

the "waste statute,"
                   RCW 4.4.was applicable because the County intentionally built the
                       630,
                         2

culvert below Bloomfield Road and "causing a thing or third person,"
                                                                   water in this instance, to
                                                                                           "

enter the land " implicatedthe statute. -- at 266.
                 -                       CP -     Woodsallegedthat t] County is liable -- - -- -
                                                                   "[ he      - -

                      injuring
for Dermond's acts, " —           the Woods' curtain drain and Dermond building his culvert

partially on the Woods' land— "
                            because Dermond acted as the County's agent in the

management of the County's stormwater." CP at 267. The County responded that "any such

claim"related to stormwater damage from the Bloomfield Road culvert " ould be barred by the
                                                                    w

doctrine of prescriptive rights" as the "culvert has been discharging surface water at its present




3 The W'oods did not discover that the culvert was built on their property until March 2010, when
a property survey they commissioned revealed this.
                                                          6
No. 42110 1 II
          - -



location (
         near the Wood Dermond boundary) for decades, and long before Wood purchased the
                       /

property in 2001."CP at 326

         After hearing argument on the motion for summary judgment, the trial court dismissed

the statutory waste, civil   conspiracy,   and failure to enforce claims       against      the    County.   But


because the Woods' response to the County's summary judgment motion arguably alleged a

claim for trespass by water, the trial court reserved ruling on that issue.

         In January 2011, the trial court heard argument on a renewed summary judgment motion

from the County      to dismiss the   trespass by   water claim.       The County again. argued that the

doctrine of prescriptive easement applied and that the evidence in the record established that the

County's   use   of the culvert had been open and notorious for at least 28 years. The Woods


argued that the stormwater coming from the culvert constituted a public nuisance and a nuisance

cannot become a prescriptive easement or., alternatively, if the County had a prescriptive

easement, the County misused the easement in                  discharging
                                                         over -              stormwater.          The trial court


granted summary judgment to the County. The Woods timely appeal.
                                             DISCUSSION - - --


STANDARD OF REVIEW


         We review a trial court's summary judgments de novo. Torgerson v. One Lincoln Tower,

LLC, 166 Wn. d.517, 210 P. d 318 (2009). Summary judgment is appropriate only if the
         510,
           2             3

pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine
issues of material   fact, and the moving party is entitled       to   judgment   as   a   matter of law. CR



56( ). material fact is one on which the outcome of the litigation depends in whole or in part.
  c A


4
    The Woods settled all remaining claims against Dermond out of court.

                                                     7
No. 42110 1 II
          - -



Atherton Condo. Apartment -Owners Ass'n Bd. ofDirs. v. Blume Dev. Co.,115 Wn. d 506, 516,
                                                                            2

799 P. d 250 (1990).In a summary judgment motion, the moving party bears the initial burden
     2

of showing the absence of an issue of material fact. See, e. .,
                                                           g LaPlante v. State, 85 Wn. d 154,
                                                                                     2

158, 531 P. d 299 (1975).If the moving parry is a defendant and meets this initial showing,
          2               "

then the inquiry shifts to the party with the burden of proof at trial, the plaintiff. If,at this point,

the plaintiff `ails to make a showing sufficient to establish the existence of an element essential
              f

to that party's case, and on which that party will bear the burden of proof at trial,'then the trial

court should grant the motion."Young v. Key Pharm.,Inc.; Wn. d 216, 225, 770 P. d 182
                                                       112 2                  2

1989)footnote omitted) quoting Celotex Corp. v. Catrett, 477 U. .317, 322, 106 S. Ct. 2548,
      (                (                                      S

91 L.Ed. 2d 265 (1986)). "[ complete failure of proof concerning an essential element of the
                      A]

nonmoving party's case necessarily renders all other facts immaterial."Celotex, 477 U. . at 323.
                                                                                     S
PUBLIC DUTY DOCTRINE


            The Woods argue that the "County owed a duty of care to the Woods as members of the

class intended to be protected by the Landslide Hazard Section of the [Mason County] Resource

Ordinance."
         Br.Appellantat 19. Inlight of alleged dutyWoods argue thatthe public - - - - - --
                        -                           -

duty doctrine does not shield the County from being partially liable for the Dermond landslide

because (1)the County ordinances evince a legislative intent to protect the property value of

property owners like the Woods, and (2)the County failed to enforce code provisions that

require mandatory action from the County in the event of noncompliance with the Mason County

Resource Ordinance (MCRO).We disagree.

            The threshold determination in a negligence action is whether the defendant owes a duty

of   care   to the   plaintiff. Taylor v. Stevens County, 111 Wn. d 159, 163, 759 P. d 447 (1988).
                                                                2                  2

And when governmental municipal liability is at issue, courts employ the public duty doctrine to
                      /
                                                   3
No.42110 1 II
         - -



determine "whether the duty is one owed to a nebulous public or whether that duty is owed to a

particular   individual." Honcoop           v.   State,   111 Wn. d
                                                                2     182, 188, 759 P. d 1188 ( 1988). The
                                                                                     2


plaintiff in a negligence action has the burden of establishing that a local governmental entity has

breached a duty owed to them, individually, rather than to the public at large. Babcock v. Mason

County   Fire Dist. No.       6,   144 Wn. d
                                         2          774, 785, 30 P. d 1261 ( 2001). Washington courts
                                                                  3


recognize     four    exceptions   to the    public duty     doctrine: (   1)legislative intent, ( )failure to
                                                                                                 2

enforce, 3) rescue doctrine, and (4)
         ( the                      special relationship. Babcock, 144 Wn. d at 786. Only
                                                                         2

the legislative intent and failure to enforce exceptions are implicated in this case.
         A.          LEGISLATIVE INTENT


         The public duty doctrine does not bar a plaintiff's action if a regulatory statute, by its
                                                                       "

terms, evidences a clear legislative intent to identify and protect a particular and circumscribed

class of persons." Ravenscroft v. Wash. Water Power Co.,136 Wn. d 911, 929, 969 P. d 75
                                                              2                  2
1998). In order for this exception to apply, the regulation establishing a duty must intend to
        .                                    "

identify and protect a particular and circumscribed class of persons, and this.intent must be

clearly expressed within theprovision—. not be implied..`
                          -          it               Ravenscroft, 136Wn. - at 930
                                                                   -    2d - -

emphasis added). Because the County's ordinance does not clearly express an intent to protect

the property value of all property owners who have built in landslide prone areas, we reject the
                                                                      -
Woods' contention that this exception to the public duty doctrine applies.

         Here, the Woods argue that the "Landslide Hazard Areas" section of the MCRO "creates

a duty, owed by the County to landowners in a landslide hazard zone, particularly to owners of


5 The Woods devote a single paragraph in their brief to the special relationship exception with no
cognizable argumentation           or   citation to authority.   Accordingly, we do not address this issue.
RAP 10. ( also Cowiche Canyon Conservancy v. Bosley, 118 Wn. d 801, 808 09, 828
    a)(see
      6);
      3                                                    2            -
P. d 549 (1992).
 2

                                                             E
No. 42110 1 II
          - -



property adjacent to development activity, to take reasonable care to enforce the requirements of

the ordinance for the protection of the landowners' property." Br. of Appellant at 22. MCRO

100
17. 1.states,
  0

       The purpose of the Landslide Hazard Section is to identify areas that present
       potential dangers to public health and safety, to prevent the acceleration of natural
       geological hazards, to address off site environmental impacts, and to minimize the
       risk to the property owner or adjacent property owners from development
       activities.


       Division One of this court rejected a nearly identical argument in Pepper v. J. . Welcome
                                                                                     J

Construction Co.,73 Wn. App. 523, 871 P. d 601, review denied, 124 Wn.2d 1029 (1994),
                                       2
abrogated on other grounds by Phillips v. King County, 87 Wn. App.468, 943 P. d 306 (1997),
                                                                            2

aff'd,136 Wn. d 946, 968 P. d 871 (1998).In Pepper, plaintiffs asserted that King County was
            2             2

liable for damage from increased surface water runoff from new developments because the King

County Code 'evinced legislative intent to "`
                                           protect property owners adjacent to developing land
from increased runoff rates which could          cause   erosion of   abutting property ...      and to decrease


surface water   damage   to   public   and   private property. "' 73 Wn. App. 532 (quoting former King

Count Y (Code 0. -- 1980
         )):   010                      Ithe leg islativeintent " -
                                        n rejecting - " intent"                      p tion to   the P
                                                                                                     public --
                                                                                                          Y


doctrine in that instance, the Pepper court stated that

        general precatory language in a statute does not identify a particular and
        circumscribed class of individuals.           Because the statute referenced here was
        addressed to a general class of adjacent property owners, and it referenced the
        public, not a narrow class of specific property owners, the legislative intent
        exception does not apply.

73 Wn. App. at 532.

        Although the language of MCRO 17. 1.addresses a more specific group of property
                                      100
                                        0
owners those whose land falls within a Landslide Hazard Areathan the property owners in
        —                                                    —

Pepper, it is unclear from the plain language of the ordinance whether the County intended to
                                                         10
No. 42110 1 II
          - -



protect the property value of property owners adjacent to development activities. For instance,

the ordinance begins by focusing on "potential dangers to public health and safety." MCRO

100 (
17. 1. emphasis
  0                    added). The ordinance does discuss minimizing the risk to adjacent

property owners, but it is unclear whether that references minimizing a more general risk to

public health and safety or a specific risk to property value. The plain language of the ordinance

does not clearly evince the County's intention to protect the property value of land in Landslide.

Hazard Areas, rather than protecting public health and safety of property owners more generally.

We will not read    implied   intent into the   plain language   of the ordinance.   Ravenscroft, 136.

Wn. d at 930; see also Rosen v. City of Tacoma, 24 Wn. App. 735, 741, 603 P. d 846 (1979) a
  2                                                                        2              (

city building code which does not purport to protect property owners from economic loss will
not be treated as affording owners such protection).

       As the Woods' own expert geologist attested, the landslide activity on the Dermond

property presented no actual threat to the Wood property or their health and safety. Instead, the
threat"was to the resale value of the Woods' home. Accordingly, we hold that the "legislative

intent"exception to the public duty doctrine does riot apply. - - - - — - -- _- - -- - -
                                             -         -

       B.        FAILURE TO ENFORCE


        The public duty doctrine also does not bar a plaintiff's action if 1) official has a
                                                                           "( the

duty to enforce a statute, 2)the official has actual knowledge of a statutory violation, 3)the
                           (                                                             (
official fails to correct the violation, and (4) plaintiff is within the class the statute protects."
                                                the

Smith v. City of Kelso, 112 Wn. App.'277, 282, 48 P. d 372 (2002),
                                                   3             review denied, 148 Wn. d
                                                                                      2
1012 (2003).Here, the Woods argue that the enforcement language in the MCRO creates a duty
to enforce and, further, that the County had actual knowledge of a statutory violation. But the



                                                    11
           No. 42110 1 II
                     - -



           failure to enforce exception to the public duty doctrine only applies when a county or city has a

           specific, mandatory enforcement obligation. Accordingly, we reject this contention.

                  The plaintiff has the burden of establishing each element of the failure to enforce

           exception and courts construe the exception narrowly. Atherton, 115 Wn. d at 531. As Division
                                                                                 2

           Three of this court has explained,

                  In order to invoke this exception, the statute must contain a specific duty to take
                  corrective action. See, e. .,
                                            g Bailey [v. Town ofForks],108 Wn. d 262, 737 P. d
                                                                                  2                2
                  1257[,753 P. d 523 ( 1987)]statute provided police officer "shall" take into
                                 2                 (
                  custody a person incapacitated by alcohol);Campbell v. City of Bellevue, 85
                  Wn. d 1, 530 P. d 234 ( 1975) (
                     2              2               statute provided building official " shall
                  immediately      sever   any unlawfully made connection "). In other words, a specific
                  directive to the governmental employee as to what should be done must be
                  present in the statute.
                          Statutes generally indicating the agency "may"take corrective action or
                  investing broad discretion in the agency will not meet this requirement.

           Ravenscroft v. Wash. Water Power Co.,87 Wn. App. 402, 415, 942 P. d 991 (1997), d in
                                                                           2             aff'

           part by Ravenscroft; 136 Wn. d 911.
                                      2

                  Here, MCRO 15. 3 governs enforcement of the Landslide Hazard section of the MCRO.
                               1

lUnlike the provisions at issue in Bailey and Campbell, MCRO                  s
                                                                              15. 3' language grants discretion
                                                                                1

           in relation to enforcement: "[ he enforcement officer may issue a civil infraction ticket of up to
                                        t]

           two hundred    fifty   dollars for the first violation of the code." MCRO    020(
                                                                                        15. 3.Prior to "
                                                                                           d
                                                                                           1 );

            other enforcement action, and at the option of the review authority, a warning notice may be
            issued."MCRO 15. 3.Where property has been subjected to an activity in violation of this
                         035; "
                           1

            chapter, the county may bring an action against the owner of such land or the operator who

            performed                   MCRO
                        the violation. ".          030(
                                                   15. 3.
                                                      c emphasis
                                                      1 ) (added).

                   Thus, although the Woods correctly contend that permits are normally required for

            clearing within a Landslide Hazard Area, they overstate the County's enforcement obligations.


                                                               12
No. 42110 1 II
          - -



Contrary to the Woods' claim, the ordinances do not reflect that violation of the ordinance

created "a mandatory duty to take specific action."Forest v. State, 62 Wn. App. 363, 369, 814

P. d 1181 (1991).Accordingly, we hold that the failure to enforce exception to the public duty
 2

doctrine does not apply in this case.

PRESCRIPTIVE EASEMENT RIGHTS


       The County asserts that, as a matter of law, it has established prescriptive rights to

discharge stormwater through the Bloomfield Road culvert. The Woods disagree, arguing that

the County has failed to present sufficient facts establishing each requirement for prescription or,

alternatively, that if the County has established an easement, it has "negligently misused" the

easement and is therefore liable for damage from the discharged stormwater. The Woods also

argue in the alternative that a public nuisance can never ripen into a prescriptive easement.' We
hold that the County has established a prescriptive easement, that the County has not misused the

easement, and that the Woods' public nuisance claim is meritless.

       A.        ESTABLISHING A PRESCRIPTIVE EASEMENT


          The -burdenof proving - existence ofa prescriptiveright always rests - pon the -one - -
                                the             -                              u     -

who is to benefit by its establishment."Anderson v. Secret Harbor Farms, 47 Wn. d 490, 493,
                                                                              2



  The Woods also allege that the County should be barred under CR 8( ) from arguing
                                                                           c
prescription because the County did not plead prescription as an affirmative defense in its
answer.
          But prescription is not an affirmative defense enumerated. in CR 8( )that must be
                                                                              c
specially pleaded and, more importantly, the Woods' complaint failed to clearly allege that the
County's   stormwater   was   liable for trespass or     damage   to the bluff.   At the time the County
became aware of the true nature of the Woods' complaints, it expressly asserted prescription.
The Woods had the opportunity to counter the prescription claim at the hearing on the motion for
summary judgment and they failed to do so. See Mahoney v. Tingley, 85 Wn. d 95, 100, 529
                                                                               2
P. d 1068 (1975) ( " is to avoid surprise that certain defenses are required by CR 8( )to be
  2               It                                                                   c
pleaded affirmatively.   In   light   of that   policy ...   the affirmative defense requirement is not
absolute. ").


                                                       13
No. 42110 1 I1
          - -



288 P. d 252 (1955).
     2                     To establish a prescriptive easement, the County must show "(
                                                                                       1)use

adverse to the title owner, 2)open, notorious, continuous and uninterrupted use for 10 years,
                            (

and (3)the owner's knowledge of the adverse use when he was able to enforce his rights."

Bradley   v.   Am.   Smelting & Refining Co.,104 Wn. d 677, 694,
                                                   2                709 P. d 782 ( 1985). The
                                                                         2


adverse use requirement involves "such use of property as the owner himself would exercise,

entirely disregarding the claims of others, asking permission from no one, and using the property

under a claim of right."Malnati v. Ramstead, 50 Wn. d 105, 108, 309 P. d 754 (1957).Proof
                                                  2                  2

of the second element (open, notorious, and continuous use) establishes "a presumption that the

use was adverse, a presumption that can be rebutted by showing that the use was permissive."

Pedersen v. Dep't of Transp.,43 Wn. App. 413, 417, 717 P. d 773 (1986).Last, a "prescriptive
                                                        2
right, once acquired, cannot be terminated or abridged at the will of the owner of the servient
estate."Nw. Cities Gas Co. v. W. Fuel Co., Wn. d 75, 88, 123 P. d 771 (1942).
                                         13  2                2

       Here, the County established through the unopposed declaration of Mason County Road

Operations and Maintenance Manager Rick Blake that the Bloomfield Road culvert has operated
uninterrupted and without -
              -(          change) at least 28 years._Moreover Tammy Wood's and - - - - -
                                for - -              - --                   --

Dermond's depositions relate that the prior owner of both properties cleared them for

development in 1988 and that the culvert has, in plain view, discharged water near the top of the

Wood Dermond property line that entire time. The undisputed facts show that (1) use in this
     /                                                                         the

case is clearly adverse to the servient land owners; ( )the use has been open, notorious, and
                                                     2




                                                14
No, 42110 1 II
          - -



uninterrupted for at least 10 years; and (3)the owners' knew the use was adverse but did not
attempt   to assert their   rights   within the 10 year
                                                   -      period. Accordingly, we hold that the County

has established prescriptive rights to discharge water from the Bloomfield Road culvert as a

matter of law.

          B.     MISUSE OF THE EASEMENT


          The Woods argue, in the alternative, that if the County has established prescriptive

easement rights as a matter of law, then the County has misused or overburdened the easement.

We disagree.

          The County's culvert has been draining water at the same location for at least 28 years.

The Woods failed to prove that drainage from the culvert changed during that time. Because the

 County attained the right, through a prescriptive easement, to discharge stormwater through the
 Bloomfield Road culvert, and because there is no evidence that the County subsequently misused

 the privileges expressly allowed by that easement, the Woods' claim of negligent misuse is
 without merit.    Mielke v. Yellowstone Pipeline Co.,73 Wn. App. 621, 624, 870 P. d 1005,
                                                                                 2

review denied,124 Wn. d-
               -    2 1030 -(1994) - - - -- - -- - - - - - -- - - -- -- -- - - - - -- -- - - -- - - --


 7
   The Woods appear to allege that the use may have been permissive rather than adverse.
 However, a presumption of adverse use arises from evidence of open and continuous use for the
 statutory time period. Hovila v. Bartek, 48 Wn. d 238, 241, 292 - 2d 877 (1956).If the use was
                                               2                 P.
 open and continuous, as is established here by Blake's declaration, the burden shifts to the
 servient estate to prove permissive use. See, e. .,
                                                 g Pedersen, 43 Wn. App. at 417. The Woods
 have failed to provide any evidence that the servient owners ( themselves and Dermond)
 permissively allowed the County to discharge stormwater onto their properties.
 8
  Although the Woods first purchased their lot in 2001, an easement obtained by prescription is
                                                        "
 good as against a subsequent purchaser of the servient tenement even though he is an innocent
 purchaser  without notice:" A. M. Swarthout, Extinguishment of Easement by Implication or
 Prescription, by Sale of Servient Estate to Purchaser Without Notice, 174 A. .1241, § 3
                                                                           R.
                                                                            L

 1948); also Crescent Harbor Water Co. v. Lyseng, 51 Wn. App. 337, 346, 753 P. d 555
       see                                                                            2
 1988) T] e bona fide purchaser doctrine does not apply to an easement by prescription. ").
       ( "[h
                                                          15
No.42110 141
         -



         Moreover, the cases the Woods cite in support of their argument are distinguishable. In

Sanders v. City ofSeattle, 160 Wn. d 198, 156 P. d 874 (2007), mall owner expressly agreed,
                                 2             3             a

in writing, to provide for pedestrian access from the mall to a monorail station. In analyzing that

agreement, the Washington Supreme Court held that the easement could not be unilaterally

expanded to require the mall to make its property available as a public gathering place for

political protests, especially in that the easement had "not historically served as a public

thoroughfare."Sanders, 160 Wn. d at 219. The nature of the easement in question here has not
                             2

changed and the Sanders case is inapplicable.

         The Woods also cite to Lee v. Lozier, 88 Wn. App. 176, 187, 945 P. d 214 (1997),
                                                                          2             in

support of the proposition that the County has exceeded the scope of the prescriptive easement.

In that case, Division One of our court rejected the Loziers' argument that the essential use of the

easement had gone beyond its original purpose because "the easement as ordered by the court

granted no more rights than the neighbors believed they already enjoyed."Lozier, 88 Wn. App.

at 188. Here, by recognizing the prescriptive easement, we recognize no more rights than the

County already enjoys the rightsto dischargestormwater through theBloomfield Road -culvert - -

as it has done, unabated, for at least 28 years.


9
    Although there is scant Washington case law addressing prescription in relation to stormwater,
we    addressed   a   somewhat   analogous situation    in the context of   takings jurisprudence.   In

Washington, a "new taking cause of action arises when additional governmental action occurs."
Hoover v. Pierce County, 79 Wn. App. 427, 435, 903 P. d 464 (1995),
                                                            2                review denied, 129
Wn. d 1007 (1996) emphasis added). In Hoover, the plaintiffs claimed that while operating a
   2                  (
county culvert in the same manner for over a decade, the county was liable for each new instance
of flood damage that occurred on their property—
                                               despite that the county had not altered the
culvert. 79 Wn. App. at 435 36. We disagreed:
                            -
                 Surface water flooding cases in Washington also support the proposition
         that a new taking cause of action arises when additional governmental action
         occurs.  In Buxel the plaintiff's land was subjected to minor seepage from a
         system of drains and culverts over a period of years. Buxel v.King County],60
                                                                     '[
                                                   16
No.42110 1 II
         - -



       We hold that the Woods' negligent misuse of an easement claim is meritless.

       C.       PUBLIC NUISANCE


       Also, in the alternative, the Woods argue that the stormwater generated from the

Bloomfield Road culvert represents " a public nuisance, affecting the rights of the entire

neighborhood."Br.of Appellant at 43. We disagree.

       Washington statutorily defines "public nuisance"in RCW 7.8. A public nuisance
                                                              130: "
                                                                4

is one which affects equally the rights of an entire community or neighborhood, although the

extent of the damage may be unequal." Further, in RCW 7.8.3), (5),
                                                      140(
                                                         1
                                                         4 ), ( Washington
                                                             and

specifically enumerates several nonexclusive instances that give rise to public nuisance claims,

including causing the carcass of any animal, offal, filth, or noisome substance to be collected,
                                             "


       Wn. d [404,]405, 374 P. d 250 [ 1962]. However, in 1958, King County
         2                   2
       connected an entire subdivision to the drain system, changing the plaintiff's
       previously minor seepage problem into an inundation problem. Buxel, 60 Wn. d
                                                                                2
       at 405 06. In response to the county's contention that any taking had occurred
              -
       when the drainage system was first constructed, the Buxel court noted that the
       plaintiff was seeking recovery for the injury that occurred when the county caused
      the flow of water her property - to increase as - a result of the new
          -
       construction. Buxel, 60 Wn. d at 407.
                                 2

              In the present case, the Hoovers do not claim that there was any additional
       government action by Pierce County since the installation of the culvert in 1972.
       Rather, they contend that a new taking cause of action arises with each flood,
       absent additional governmental action. We reject this contention. The Hoovers
       do not cite,nor did research disclose, any authority for their position....
              In summary, the County has not undertaken any new action since
       installing the roadway culvert in 1972; thus, no new taking cause of action has
        arisen, and the Hoovers, as subsequent purchasers, may not recover for a taking
        that occurred prior to their ownership.
Hoover, 79 Wn. App. at 435 36.-
        Here, the County has not undertaken any new action since the roadway culvert was first
installed at least 28 years ago. Accordingly, if a cause of action does lie for a taking or for
negligent misuse" of the prescriptive easement, the statute of limitations (10 years) has long
since passed as the Hoover court explained.

                                               17
No. 42110 1 II
          - -



deposited, or     to remain in any       place   to   the   prejudice   of others ";   impeding the passage of any

river; or carrying on "
                      the business of manufacturing gun powder, nitroglycerine, or other highly

explosive     substance ..      in any building within fifty rods of any valuable building erected at the

time such business may be commenced."

          Here, the undisputed facts establish that the alleged "
                                                                nuisance" at issue only affects two

property owners, not an entire neighborhood or community. Further, the Woods are unable to
cite to   a   single   case   in which stormwater constitutes            a   public nuisance. Unlike collecting

noisome       substances, illegally        damming rivers,          or       manufacturing    explosives   in   urban


environments, channeling rainwater does not, as a matter of law, rise to the level of public

nuisance. The Woods' public nuisance claim fails.

STORMWATER MANAGEMENT


          The Woods argue that "[st]
                                   ormwater management is a proprietary function" and,

accordingly, the County owes the same duty of care as a private individual engaged in the same

activity.     Br. of    Appellant   at   17.     Although this is true, because the County established a

prescriptive easement -for --
             -              discharging stormwater -through theBloomfield Road -culvert; the - - -- --
                                                                                         --

Woods' arguments on this point are inapposite.

          Generally, municipal rights and liabilities as to surface waters are the same as those of

private landowners within the city."
                                   Phillips v. King County, 136 Wn. d 946, 958, 968 P. d 871
                                                                  2                  2

1998). Accordingly, managing stormwater is a proprietary function for which a municipality



to
     The Woods cite Elves v. King County, 49 Wn. d 201, 299 P. d 206 (1956).This reliance is
                                               2             2
misplaced. The Elves case involved a town's surface water channels and culverts, but the court
based its public nuisance determination on a finding that in violation of RCW 7.8.140(  l
                                                                                        4 ),
human and animal excreta were found present in the waters collected and diverted on to
Plaintiffs' property."49 Wn. d at 201. No such issue exists in the present case.
                           2
                                                              18
No. 42110 1 II
          - -



may not be shielded from         liability by   the   public duty    doctrine.   See, e. .,
                                                                                       g Borden v. City of

Olympia, 113 Wn. App. 359, 371, 53 P. d 1020 (2002),
                                    3              review denied, 149 Wn. d 1021 (2003).
                                                                        2

Nevertheless, because the County has attained the right, through prescription, to discharge

surface water from the Bloomfield Road culvert, the Woods may not now complain of those

discharges.

STATUTORY WASTE THROUGH TRESPASS BY WATER


          The Woods further argue that the County is liable for statutory waste to their affected

portion    of the   damaged     marine bluff     through trespass by        water.    Although Washington

recognizes trespass by water and a statutory claim for waste, the County's prescriptive easement

bars this claim.


          The " aste"statute, RCW 4.4.
              w                   630(
                                     1 provides,
                                     2 ),

          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. For purposes of
          this section, a person acts " wrongfully" if the person intentionally and
          unreasonably commits the act or acts while knowing,or having reason to know' -- - - - - - - -
                               -                              -
          that he   or   she lacks authorization to     Damages recoverable under this
                                                         so   act.

          section include, but are not limited to, damages for the market value of the
          property removed or injured, and for injury to the land, including the costs of
          restoration. In addition, the person is liable for reimbursing the injured party for
          the party's reasonable costs, including but not limited to investigative costs and
          reasonable attorneys' fees and other litigation -
                                                          related costs.

          By express operation of the statute, a defendant can only be found liable for " aste"if
                                                                                        w

the defendant acts "wrongfully" and commits an act that exceeds the scope of his or her

authorization.      Here, the County holds a prescriptive easement that grants it authority to

discharge stormwater from the Bloomfield Road culvert— n easement that existed long before
                                                     a
the   Washington legislature       even   passed      the waste statute.    Accordingly, we hold that the

                                                         19
No. 42110 1 II
          - -



County's easement impliedly authorized the stormwater discharge and the waste statute does not
      11
apply.

CIVIL CONSPIRACY


         Last, the Woods argue that the County is liable, as a co-
                                                                 conspirator, for Dermond

building his drainage project " n the Woods' property, and wrongfully damaging improvements
                              o

on Woods' land (the curtain drain that protected the Woods' septic field)." of Appellant at
                                                                         Br.

38. Because the record establishes that the County had no knowledge that Dermond's drainage

project would be partially constructed on the Woods' property or that Dermond damaged

unpermitted improvements on the Woods' land, this argument lacks merit.
           To establish a case for common law civil conspiracy, the Woods needed to show by

clear, cogent, and convincing evidence "that ( ) or more people combined to accomplish an
                                             1 two
unlawful purpose, or combined to accomplish a lawful purpose by unlawful means; and (2)the
conspirators entered         into   an   agreement   to   accomplish   the   conspiracy." All Star Gas, Inc. of

Wash.    v.   Bechard,      100 Wn. App.      732, 740, 998       P. d 367 ( 2000). Moreover,
                                                                   2                             t] preclude
                                                                                                 "[ o

                  nonmovin gp art Y maY not relY solel y
      yjudgment, a-
summary —                  -                 -                                on speculation and argumentative
                                                                                  P                g


assertions.     Upon the submission by the moving party of adequate affidavits, the nonmoving

party must set forth specific facts to rebut the moving party's contentions and show that a


11
  Although the concept of trespass includes trespass by water, see Hedlund v. White, 67 Wn.
App. 409, 418 n.2, 836 P. d 250 (1992),Washington courts have yet to acknowledge that
                 1         2
statutory     waste   can   occur    through trespass by      water.    And legislative history would caution
against such an application. When the Washington Senate was first debating the waste statute,
Senator Owen explained that " he idea is to deal with the tremendous amount of damage that we
                             t
are having with people coming in and shooting up signs, shooting up restrooms. In the case of
forest lands, shooting up trees, taking fourwheel drives and running them all over [agricultural]
                                            -
land and ripping up the ground. You know a variety of things like that is really what we are
getting after in this situation."SENATE JOURNAL, 53rd Leg.,
                                                          Reg. Sess.,at 154 (Wash. 1994).
                                                             20
No. 42110 1 II
          - -



genuine issue as to a material fact exists."Allard v. Bd. of Regents of Univ. of Wash.,25 Wn.

App. 243, 247, 606 P. d 280, review denied, 93 Wn. d 1021 (1980). Finally, to successfully
                    2                            2

establish civil conspiracy, a plaintiff must show that the factual circumstances supporting the

conspiracy are "inconsistent with a lawful or honest purpose and reasonably consistent only with
the existence of the    conspiracy." John      Davis &        Co. v. Cedar Glen No. Four, Inc., Wn. d
                                                                                              75  2

214, 224, 450 P. d 166 (1969).
               2

          Here, the record clearly establishes that no one, let alone the County, realized that
Dermond's plans for his drainage project involved partially constructing a catch basin on the

Woods' property until a May 2010 survey revealed this, more than a year after the County met

with Dermond to inspect the site. Furthermore, the Woods themselves admitted that they had no

evidence of a conspiracy between Dermond and the County and uncontroverted evidence in the
record establishes that Dermond never discussed with the County the Woods' unpermitted drain
                                                                                12
pipe that he damaged during        construction of his   own    drainage project.

          Washingtonor any other jurisdiction we are aware ofdoes not recognize a claim for
                    -                                         —

negligent     cons p irac Y•   - "Without establishing _ Y -
                                          -          g - - support- -
                                                       an    pP - --          their --
                                                                                     claim - f the- County's
                                                                                           o

 unlawful intent, the Woods' civil conspiracy claim against the County necessarily fails. At the

 time Dermond sought permits from the County to build his drainage project, neither he nor the

 County were aware that a portion of the land affected by the project would be on the Woods'
 land. The Woods themselves did not realize this.               Accordingly, the Woods' civil conspiracy

 claim is meritless.




 12
      We note, as well, that when a county's only action is to approve a private development— s
                                                                                            a
 occurred here the county will not be liable for the developer's negligence. See, e. .,
               —                                                                   g Pepper,
 73 Wn.App. at 531; Phillips, 136 Wn. d at 962.
                                    2
                                                         21
No.42110 1 II
         - -



       Having failed to present material issues of fact supporting negligence or civil conspiracy

on the part of the County, or rebutting clear evidence that the County had attained the right

through prescriptive easement to discharge stormwater through the Bloomfield Road culvert, we

affirm the trial court's summary dismissal of the Woods' claims.

       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

040,
2.6.it is so ordered.
 0


                                                                                        V ,
                                                    UINN-
                                                        BRINTNALL, J.
WP enncim




                                               22
