Opinion
No. 30329-9-II
Filed: April 12, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Lewis County. Docket No. 97-2-00812-1. Judgment or order under review. Date filed: 04/04/2003. Judge signing: Hon. Richard Lynn Brosey.
Counsel for Appellant(s), Helen Mareen Bartlett, Vander Stoep Remund Blinks, 345 NW Pacific Ave, PO Box 867, Chehalis, WA 98532-0867.
James Andrew Jr Vander Stoep, Attorney at Law, 345 NW Pacific, PO Box 867, Chehalis, WA 98532-0867.
John Aden Barlow, Attorney at Law, PO Box 1549, Longview, WA 98632-7934.
Kenneth a Sheppard, Attorney at Law, 999 3rd Ave Ste 2525, Seattle, WA 98104-4032.
Charles Kenneth Wiggins, Attorney at Law, 241 Madison Ave N, Bainbridge Island, WA 98110-1811.
Counsel for Respondent(s), Timothy R. Gosselin, Attorney at Law, 1501 Market St Ste 300, Tacoma, WA 98402-3333.
The issues in this flooding case are (1) whether the jury instructions properly described the plaintiffs' negligence claim; (2) whether the jury instructions properly included defenses to the plaintiffs' trespass claim; (3) whether the trial court properly dismissed the plaintiffs' inverse condemnation claim; and (4) whether the trial court properly dismissed the plaintiffs' riparian rights claim. We affirm. In 1948, Tacoma City Light applied to the Federal Power Commission, now the Federal Energy Regulatory Commission (FERC), for a license to build two dams on the upper Cowlitz River. Mossyrock Dam was to be upstream from Mayfield Dam, and together they were to be known as the Cowlitz Project. In 1951, the dams were approved and licensed. Two of their purposes were controlling floods and generating electrical power. Article 34 of the license dealt with flood control. As revised in 1972, it stated:
Licensee [Tacoma] shall reserve in Mossyrock Reservoir between elevation 778.5 feet and 745.5 feet adequate space to regulate Cowlitz River floods equal to or less than the magnitude of the December 1933 flood to 70,000 cfs [cubic feet per second] or less at Castle Rock, Washington. However, storage space in Mayfield Reservoir, a downstream reservoir, may be substituted for an equal amount of storage space in Mossyrock Reservoir. Maximum scheduled pool levels and flood regulation procedures for Mossyrock Reservoir are prescribed in the following paragraphs:
Beginning on October 1, Mossyrock Reservoir shall be gradually lowered from elevation 778.5 to reach elevation 745.5 on or before December 1. At no time during that two-month period shall the pool be higher than the elevation represented by uniform evacuation of the reservoir, except temporarily when regulating a flood. Between December 1 and January 31, the reservoir shall be maintained at elevation 745.5 feet except when storage space is used to regulate floods. Between February 1 and June 1, the reservoir may be filled gradually to elevation 778.5, except that, Licensee, consistent with flood control provisions of paragraph 1 of this article, shall maintain the reservoir level at or below elevation 765 feet until May 21, or until the Swofford Pond evacuation is completed, whichever occurs first.
The procedure for regulating floods will be to store only that portion of the inflow in excess of 15,000 cfs, the capacity of the two existing turbines at Mossyrock, until such time that a further reduction in reservoir release is necessary to regulate the flow at Castle Rock to 70,000 cfs. Following a flood, stored flood waters in Mossyrock Reservoir above elevation 770, shall be evacuated as fast as downstream channel conditions will permit, preferably not to exceed 50,000 cfs at Castle Rock, or at lesser rate if the evacuation can be accomplished in less than three days. However, should a 50,000 cfs flow at Castle Rock jeopardize the evacuation of the storage space above elevation 770, the regulated flow at Castle Rock may be increased to 70,000 cfs, the scheduled maximum. Stored flood waters that have to be evacuated below elevation 770 shall be made at the maximum capacity of the two existing turbines or 15,000 cfs whichever is the larger.
According to the record made at trial, maximum turbine capacity was actually between 12,500 and 13,500 cfs.
Adjustments in the operation specified by the criteria in this article may be made from time to time for short periods subject to prior approval of the authorized representatives of the Licensee and the Corps of Engineers, Department of the Army. The Licensee shall notify the Commission [FERC] of any such adjustments.
Clerk's Papers (CP) at 1462-63.
In November 1995, Western Washington experienced heavy rain. By November 9, inflow at the dams had increased from 5,000 cfs to more than 20,000 cfs, and Tacoma began to release as much water as its turbines could use to produce electricity. By November 18, the rain had begun to subside, and by November 22, inflow had dropped to 8,800 cfs.
On November 18, Tacoma calculated that the Mossyrock Reservoir would continue to drop, reaching the license-required elevation of 745.5 feet on December 1. Accordingly, Tacoma continued to release only as much water as its turbines could use to produce electricity.
On Sunday, November 26, the weather forecasters were not predicting unusually heavy rain. By Monday, November 27, however, the forecasters were predicting that by `Tuesday night or Wednesday, rivers in Southwest Washington, including the . . . Cowlitz river . . . could be above flood stage' and that the flood might be a 2,000-year event.
Report of Proceedings (RP) (Nov. 18, 2002) at 35.
On November 27, Tacoma calculated that if the forecasters were correct and it continued to release only as much water as its turbines could use, the inflow of water would overtop Mossyrock Dam by December 1. After conferring with the Army Corps of Engineers, Tacoma increased the rate of discharge from Mayfield dam to a daily average outflow of 20,700 cfs on November 27, 54,300 cfs on November 28, 65,000 cfs on November 29, and 59,000 cfs on November 30. These releases resulted in 104,000 cfs at Castle Rock on November 29, and in the flooding of homes and businesses along the Cowlitz River.
Plaintiff's Ex. 54.
Br. of Appellant Messmore at 7. Peak discharge for November 28 was 68,000 cfs. Plaintiff's Ex. 57.
Br. of Appellant Messmore at 7.
Br. of Appellant Messmore at 7.
In 1996, a United States Senator asked FERC to review Tacoma's handling of the flood. FERC concluded that Tacoma had complied with its license.
Between June 1997 and October 1998, the owners of flooded property filed four lawsuits that were later combined in a single `Amended and Consolidated Complaint.' The plaintiffs alleged (1) that Tacoma had assumed but failed to perform a duty of reasonable care to control floods; (2) that Tacoma had inversely condemned their properties; (3) that Tacoma had trespassed on their properties; and (4) that as a riparian owner, Tacoma owed other riparian owners, but had failed to perform, a duty to use the water reasonably. Tacoma filed an answer and counterclaims.
CP at 1613 (capitalization removed).
A fifth claim, alleging strict liability, was later dismissed and is not in issue here.
In November 2002, the court empanelled a jury to try liability only; if the jury found liability, damages would be tried later. The witnesses agreed that if Tacoma had discharged more water earlier (i.e., before November 27), it could have discharged less water later (i.e., after November 27). The witnesses also agreed that once Tacoma retained the amount of water on November 27, it had no choice but to release the amounts that it released after November 27. The witnesses disagreed on whether Tacoma had acted reasonably and in the exercise of reasonable care by not discharging more water before November 27. Each expert who testified for the plainfiffs said that if Tacoma had released more water before November 27, Tacoma could have held the average daily outflow after November 27 to not more than 45,000 cfs.
When the plaintiffs rested, Tacoma moved to dismiss. The trial court dismissed the inverse condemnation claim, but not the other claims. At the end of all the evidence, Tacoma again moved to dismiss. The trial court dismissed the riparian rights claim but agreed to submit the negligence and trespass claims to the jury.
The trial court then gave jury instructions on negligence and trespass. In Instruction 7, it described the plaintiffs' negligence claim as follows: The plaintiffs claim that the defendant was negligent in the following respects:
a. It failed to reduce the elevation of Riffe Lake [the Mossyrock Reservoir] to a level sufficient to reduce maximum discharge from the Cowlitz Project to 45,000 cfs or less during the period November 27 to December 1, 1995.
CP at 316.
CP at 316.
Objecting to Instruction 7, one of the plaintiffs' attorneys stated, `Instruction 7, I except to the claim limiting it to the reduction of 45,000 cfs or less as opposed to simply reducing the maximum discharge below 65,000.' Although the plaintiffs say they proposed an instruction in which they described their own negligence claim, no proposed instruction appears in the record on appeal. The court's instructions on trespass appear below.
RP (Dec. 5 9, 2002) at 37.
The trial court gave a special verdict form in which it asked the jury to make findings on plaintiffs' negligence and trespass claims. In the first of several questions, the court asked:
QUESTION NO. 1: Was the defendant negligent in failing to reduce the elevation of Riffe Lake to a level sufficient to reduce maximum discharge from the Cowlitz Project to 45,000 CFS or less during the period November 27 to December 1, 1995?
CP at 292.
CP at 292.
Although the special verdict form paralleled Instruction 7, the plaintiffs did not object to it.
During deliberations, the jury sent a note to the judge. It asked, `If Tacoma was negligent for a short period of time that still would not have reduced project outflow to below 45,000 CFS, would that be negligence in this first question OR does prudent operation have to result in an outflow of 45,000 CFS or less?' After conferring with the parties, the judge told the jury to re-read the instructions it already had.
CP at 1651.
The jury found Tacoma not liable. Answering the various questions on the special verdict form, it ruled that Tacoma had not been negligent by failing `to reduce the elevation of Riffe Lake [the Mossyrock Reservoir] to a level sufficient to reduce maximum discharge from the Cowlitz Project to 45,000 CFS or less during the period November 27 to December 1, 1995;' that Tacoma had not been negligent by failing to properly train and supervise `the people in charge of the release of water;' that Tacoma had been negligent by failing to keep and consult `records showing what had occurred in past flood events,' but that Tacoma's negligence was not a proximate cause of the plaintiffs' damages; and that Tacoma's trespasses were `privileged or excused.'
CP at 292.
CP at 294.
CP at 293.
CP at 295.
After the verdict, the plaintiffs moved for judgment as a matter of law on their trespass claim and for a new trial on their negligence claim. Plaintiffs' counsel averred in a supporting declaration that the plaintiffs had proposed an instruction describing their negligence claim, but then neglected to file it with the trial court clerk. Counsel stated:
At the time of the discussion of proposed jury instructions in chambers, I presented to the court a proposed instruction which allowed the jury to find that Tacoma was negligent in not reducing the maximum Cowlitz Project outflow during the period November 7 through December 4, 1995 to a figure other than 45,000 CFS. I also presented a Special Verdict form which allowed for such a determination and for the jury to fill in the number they selected.
CP at 192-93.
CP at 192-93.
The trial court denied the motions, and this appeal followed.
I.
The plaintiffs contend that Instruction 7 erroneously described their negligence claim. By referring to 45,000 cfs, they state, Instruction 7 `erroneously limited the jury to accepting or rejecting the theory that Tacoma should have limited the release from the dams to 45,000 cfs, where the testimony of all experts ranged from 40,000 to 58,000 cfs.' Tacoma responds that the `plaintiffs did not preserve the alleged error for review,' that Instruction 7 `accurately reflected plaintiffs' theory of the case,' and that the `plaintiffs cannot claim prejudice from their own theory.'
Br. of Appellants Beck at 25 (emphasis removed).
Br. of Respondent/Cross-Appellant at 26 (emphasis removed; capitalization removed).
Br. of Respondent/Cross-Appellant at 32 (emphasis removed; capitalization removed).
Br. of Respondent/Cross-Appellant at 45 (emphasis removed; capitalization removed).
Preliminarily, we observe that the core of the plaintiffs' negligence claim was whether Tacoma had negligently impounded too much water (i.e., failed to release enough water) on and before November 27. The elements of negligence are duty, breach, proximate cause, and damages. To demonstrate those elements here, the plaintiffs were necessarily claiming that Tacoma was negligent by not releasing enough water on or before November 27, and that Tacoma's negligence was a proximate cause of the damage that occurred after November 27, despite the storm that intervened from November 28 to December 1. The plaintiffs were not claiming that Tacoma was negligent by releasing too much water after November 27, as even their own experts did not dispute that if Tacoma had reasonably and properly impounded the water on hand on November 27, Tacoma had no choice but to avoid overtopping the dams after November 27. Yet at many points during trial, the parties greatly confused the negligence claim by conflating or attempting to conflate negligence before November 27 and negligence after November 27. As already seen, Tacoma responds to the plaintiffs' contention in three ways. First, it argues that the `plaintiffs did not preserve the alleged error for review.' We agree. A party fails to preserve an objection for review if he or she does not present it fairly and properly at the trial court level. When the plaintiffs orally objected to Instruction 7, they asserted that Tacoma was negligent by not increasing maximum outflow before November 27, so that maximum outflow after November 27 would been `below 65,000 [cfs].' When they submitted their counsel's post-verdict affidavit, they asserted that Tacoma was negligent by `not reducing the maximum . . . outflow during the period November 7 through December 4, 1995 to a figure other than 45,000 CFS.' Thus, their oral objection asserted that Tacoma was negligent by not increasing its outflow, while their affidavit asserted that Tacoma was negligent by not reducing its outflow. In addition, their oral objection distinguished the periods before and after November 27, while their affidavit treated as a single unit the entire period from November 7 though December 4. Given that the plaintiffs did not describe their claim consistently, and that they did not propose a proper description of it for inclusion in the jury instructions, they should not now be heard to complain that Instruction 7 did not properly describe it.
Keller v. City of Spokane, 146 Wn.2d 237, 242, 44 P.3d 845 (2002); Huff v. Roach, ___ Wn. App. ___, 106 P.3d 268 (2005); Gaines v. Pierce County, 66 Wn. App. 715, 720, 834 P.2d 631 (1992), review denied, 120 Wn.2d 1021 (1993).
RP (Nov. 14, 2002) at 8-9 (Foster testimony); RP (Nov. 15, 2002) at 93 (Van Bruggen testimony); RP (Dec. 3, 2002) at 94 (Rozeboom testimony).
Br. of Respondent/Cross-Appellant at 26 (emphasis removed; capitalization removed).
Postema v. Postema Enter. Inc., 118 Wn. App. 185, 193, 72 P.3d 1122 (2003), review denied, 151 Wn.2d 1011 (2004); Sturgeon v. Celotex Corp., 52 Wn. App. 609, 617, 762 P.2d 1156 (1988); State v. Serr, 35 Wn. App. 5, 9, 664 P.2d 1301, review denied, 100 Wn.2d 1024 (1983).
RP (Dec.5 9, 2002) at 37.
CP at 192.
Next, Tacoma argues that Instruction 7 `accurately reflected plaintiffs' theory of the case.' We agree. A party's claim is different from the evidence supporting it; in other words, a party's claim is the same whether supported by ample evidence or by no evidence at all. The plaintiffs were claiming, through every expert whom they called, that if Tacoma had released more water before November 27, Tacoma could have held the average daily outflow after November 27 to 40,000 or 45,000 cfs. Instruction 7 was designed to describe the plaintiffs' claim; it was not designed to state or incorporate the proposition that each party is entitled to the benefit of evidence produced by the other party. Instruction 7 properly described the plaintiffs' claim, regardless of the evidence from defense witnesses, and thus it was not erroneous.
Br. of Respondent/Cross-Appellant at 32 (emphasis removed; capitalization removed).
See Carle v. McChord Credit Union, 65 Wn. App. 93, 100 n. 9, 827 P.2d 1070 (1992). The plaintiffs would have been entitled to an instruction on the latter proposition if they had proposed one, but they did not do that.
Lastly, Tacoma argues that the `plaintiffs cannot claim prejudice from their own theory.' We agree. An error is harmless if in its absence the trial's outcome would probably have been the same. Given that Instruction 7's reference to 45,000 cfs focused on the amount of water released after November 27, it did not affect the substance of the plaintiffs' claim, which involved Tacoma's conduct before November 27. Even though Instruction 7's reference to 45,000 cfs has been crafted as the centerpiece of this appeal, it probably did not affect the jury's findings on whether Tacoma was negligent on or before November 27.
Br. of Respondent/Cross-Appellant at 45 (emphasis removed; capitalization removed).
Cobb v. Snohomish County, 86 Wn. App. 223, 236, 935 P.2d 1384 (1997), review denied, 134 Wn.2d 1003 (1998); Codd v. Stevens Pass, Inc., 45 Wn. App. 393, 402, 725 P.2d 1008 (1986), review denied, 107 Wn.2d 1020 (1987).
We do not overlook the note that the court received during deliberations. At best, the note embodied the tentative thoughts of individual jurors, and we have no way to know how those tentative thoughts may have changed before the verdict was returned. Particularly in light of the highly confusing manner in which the plaintiffs presented their negligence claim in the trial court, we decline to hold that the note warrants a new trial.
II.
The plaintiffs contend that the trial court erred by dismissing their inverse condemnation claim before trial. They reason that it was the jury's function, not the judge's function, to decide whether `the likelihood of continued flooding . . . is sufficiently likely to recur so as to be permanent.' `An inverse condemnation plaintiff must prove a taking greater than mere tortious interference.' A taking requires damage that `is permanent or recurring or involves a chronic and unreasonable pattern of behavior by the government.' Viewing the evidence here in the light most favorable to the plaintiffs, a rational trier of fact could not find permanence, the frequent recurrences that sometimes substitute for permanence, or a chronic and unreasonable pattern of governmental behavior. We conclude that the trial court did not err.
Br. of Appellants Beck at 34.
Bodin v. City of Stanwood, 79 Wn .App. 313, 320, 901 P.2d 1065 (1995), aff'd, 130 Wn.2d 726 (1996) (quotations omitted).
Pruitt v. Douglas County, 116 Wn. App. 547, 560, 66 P.3d 1111 (2003) (quotations omitted); see also Borden v. City of Olympia, 113 Wn. App. 359, 374, 53 P.3d 1020 (2002), review denied, 149 Wn.2d 1021 (2003); Hoover v. Pierce County, 79 Wn. App. 427, 432-33, 903 P.2d 464 (1995), review denied, 129 Wn.2d 1007 (1996); Lambier v. City of Kennewick, 56 Wn. App. 275, 283, 783 P.2d 596 (1989), review denied, 114 Wn.2d 1016 (1990).
III.
The plaintiffs contend that the trial court erred (A) by not granting judgment as a matter of law on their trespass claim, and (B) by instructing improperly on three defenses to that claim. The plaintiffs ask us to review based on materials presented at summary judgment, but we are obligated to review based on the evidence presented at trial.
Adcox v. Children's Orthopedic Hosp. and Med. Ctr., 123 Wn.2d 15, 35 n. 9, 864 P.2d 921 (1993); State v. Jackson, 82 Wn. App. 594, 607-09, 918 P.2d 945 (1996), review denied, 131 Wn.2d 1006 (1997).
A.
The plaintiffs claim that they were entitled to judgment as a matter of law on their trespass claim for November 28. They reason that a dam operator trespasses automatically if on any given day it releases more water than it takes in; that on November 28, Tacoma released water at an average rate of 54,300 cfs while taking in only 50,834 cfs; and thus that Tacoma is liable for trespass on November 28. They do not make this claim for any day other than November 28.
Br. of Appellant Messmore at 7; Plaintiff's Ex. 54.
This claim is inconsistent with Washington law. To recover damages for trespass, a plaintiff must prove that a defendant intruded onto the plaintiff's land, and that the defendant's intrusion was a proximate cause of the plaintiff's damages. That Tacoma may have released 54,300 cfs while taking in only 50,834 cfs does not, in and of itself, show an intrusion onto plaintiffs' land. Nor does it show that any such intrusion proximately caused damages to the plaintiff. Indeed, a witness called by plaintiffs said that during a flood in 1977, flows of 55,200 cfs had not caused flooding. The trial court did not err by submitting the plaintiffs' trespass claim to the jury.
Haase v. Helgeson, 57 Wn.2d 863, 867, 360 P.2d 339 (1961); Voorde Poorte v. Evans, 66 Wn. App. 358, 363, 832 P.2d 105 (1992); 75 Am.Jur.2d Trespass sec. 161. See also Bradley v. Am. Smelting and Refining Co., 104 Wn.2d 677, 691-92, 709 P.2d 782 (1985) (eliminating nominal damages in cases where one party casts onto the land a `substance' that then `accumulates' there).
RP (Nov. 14, 2002) at 80 (Tubbs' testimony).
B.
The plaintiffs argue that the trial court erred by giving Instruction 18, Instruction 19, and Instruction 21. They failed to object to Instruction 18, so we decline to review it here. We examine Instruction 19 before turning to Instruction 21.
Richmond v. Thompson, 130 Wn.2d 368, 385, 922 P.2d 1343 (1996); Walker v. State, 121 Wn.2d 214, 217, 848 P.2d 721 (1993). Instruction 18 stated:
It is a defense to trespass and the trespass is excused if the defendant proceeded with due caution and circumspection, and the injury done by its act was occasioned by unavoidable circumstances[.]
A circumstance is unavoidable if it could not have been prevented by the exercise of ordinary care. . . .
CP at 326; see Zimmer v. Stephenson, 66 Wn.2d 477, 481, 403 P.2d 343 (1965) (`his only ground of defen[s]e . . . would have been, that he was in no wise careless or negligent, but had proceeded with due caution and circumspection, and that the injury done by his act was occasioned by unavoidable accident') (quoting Jordan v. Wyatt, 45 Va. (4 Gratt.) 151, 156, 47 Am. Dec. 720 (1847)); Jackson v. City of Seattle, 15 Wn.2d 505, 513, 131 P.2d 172 (1942) (`unavoidable . . . means . . . could not have been prevented').
1.
The plaintiffs argue that Instruction 19 was erroneous. It stated:
As to plaintiffs' trespass claim, a dam operator is excused and is not liable for trespass with respect to flooding that would have occurred even in the absence of the dam. The defendant has the burden of proving that the flooding would have occurred in the absence of the dam.
CP at 327.
CP at 327.
A trespasser is liable only for damages proximately caused by the trespass. Proximate cause includes `legal cause' and `cause in fact,' and cause in fact requires proof that the damages would not have occurred but for the defendant's conduct (or, alternatively, that the damages would have occurred in the absence of the defendant's conduct). Instruction 19 told the jury that Tacoma had the burden of proving the non-existence of cause in fact (in other words, that Tacoma would be excused from liability for trespass if it proved that the flooding `would have occurred even in the absence of the dam'). Assuming that Instruction 19 correctly allocated this burden to Tacoma, a matter not in dispute here, Instruction 19 correctly described the concept of cause in fact, and the trial court did not err.
Haase, 57 Wn.2d at 867; Voorde Poorte, 66 Wn. App. at 363; 75 Am.Jur.2d Trespass sec. 161. See also Bradley, 104 Wn.2d at 691-92, eliminating nominal damages in cases where one party casts onto the land a `substance' (e.g., water) that then `accumulates' there.
Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985); Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460, 475-76, 656 P.2d 483 (1983).
Harbeson, 98 Wn.2d at 476; Whitchurch v. McBride, 63 Wn. App. 272, 275, 818 P.2d 622 (1991), review denied, 118 Wn.2d 1029 (1992). See also Kuhr v. City of Seattle, 15 Wn.2d 501, 503, 131 P.2d 168 (1942); Boyer v. City of Tacoma, 156 Wash. 280, 284, 286 P. 659 (1930); Johnson v. Sultan Ry. Timber Co., 145 Wash. 106, 109, 258 P. 1033 (1927). Compare 6 Washington Pattern Jury Instructions: Civil 15.01, at 181 and 15.01.01, at 185 (2005) (cause is `proximate' if, in its absence, the injury or event would not have happened).
CP at 327.
For purposes of this case, we need not decide whether a plaintiff has the burden of showing that his or her damages would not have occurred but for the defendant's trespass, or whether the defendant has the burden of showing that the plaintiff's damages would have occurred even without its trespass. The trial court put the burden on Tacoma, which nonetheless prevailed.
D.
The plaintiffs argue that Instruction 21 was erroneous. It stated:
One is privileged to trespass on land in the possession of another if it is, or if the actor reasonably believes it to be, necessary for the purpose of averting an imminent public disaster. However, the defendant's trespass is to be considered privileged only if you find that the defendant acted in a reasonable manner.
CP at 328A. Although this instruction was designated as part of the record on appeal, the trial court clerk inadvertently failed to include it. She certified it to this court as a supplemental clerk's paper after oral argument.
CP at 328A. Although this instruction was designated as part of the record on appeal, the trial court clerk inadvertently failed to include it. She certified it to this court as a supplemental clerk's paper after oral argument.
Restatement (Second) of Torts sec. 196 supports this instruction. It provides that `[o]ne is privileged to enter land in the possession of another if it is, or if the actor reasonably believes it to be, necessary for the purpose of averting an imminent public disaster.'
Short v. Pierce County also supports this instruction. The Short court held that:
194 Wash. 421, 78 P.2d 610 (1938).
[A]ppellants may not recover for damage caused by acts of agents of the county in an attempt to control immediate danger from the flood. If it was necessary to use earth from appellants' property in filling sandbags to control the flood, respondents' agents and employees were justified in stripping the topsoil from appellants' property, and appellants cannot recover damages therefor. Whether such a step was necessary, or whether other earth was immediately available, we do not know. That question must be determined by the trier of the fact.
Short, 194 Wash. at 435.
Short, 194 Wash. at 435.
Plaintiffs argue that Tacoma `failed to present evidence of an Imminent Public Disaster.' But here as in Short, the imminency and extent of a public disaster were questions for the trier of fact.
Br. of Appellant Messmore at 16 (emphasis removed).
Plaintiffs argue that Tacoma's `own negligence bars its use of this defense.' But assuming without holding that this is true, Tacoma's negligence (if any) was a question for the jury, and the jury was instructed that Tacoma could benefit from Instruction 21 only if Tacoma had acted reasonably.
Br. of Appellant Messmore at 16 (emphasis removed).
Plaintiffs rely on a Minnesota case called Wegner v. Milwaukee Mutual Insurance Company. Recently, however, the Washington Supreme Court declined to follow Wegner. We conclude that neither Instruction 19 nor Instruction 21 was erroneous, and that the trial court properly submitted plaintiffs' trespass claim to the jury.
479 N.W.2d 38 (Minn. 1991), aff'd in part, rev'd in part, 479 N.W.2d 38 (1992).
Eggleston v. Pierce County, 148 Wn.2d 760, 773-74, 64 P.3d 618 (2003).
IV.
The plaintiffs contend that the trial court erred by dismissing their riparian rights claim. Tacoma counters that the plaintiffs do not have any riparian rights. The trial court ruled that `there is no flow of water as in nature once the dam has been constructed,' but we may affirm on any ground the record supports.
RP (Dec. 5 9, 2002) at 41.
Piper v. Dept. of Labor Indus., 120 Wn. App. 886, 890, 86 P.3d 1231, review denied, 152 Wn.2d 1032 (2004); Biggers v. City of Bainbridge Island, ___ Wn. App. ___, 103 P.3d 244 (2004).
On navigable waterways in the State of Washington, `shorelands' intervene between uplands and the navigable water. By statutory definition, `shorelands' lie `between the line of ordinary high water and the line of navigability.'
RCW 79.90.040, .045.
When the United States ratified the federal Constitution, they reserved to each state `the shores of navigable waters, and the soils under them.' When the State of Washington adopted its Constitution, it `assert[ed] its ownership to the beds and shores of all navigable waters in the state . . . up to and including the line of ordinary high water within the banks of all navigable rivers and lakes.' In the years that followed, the Washington Supreme Court held `that there is no riparian right in the owner of lands bordering on the navigable waters of the state,' at least in the absence of a conveyance from the State to the owner. The Supreme Court reasoned that `between the boundary of the upland and the navigable waters proper there [are] shore lands which belong to the state and to which all riparian and littoral rights attach.'
Pollard v. Hagan, 44 U.S. 212, 230, 3 How. 212, 11 L.Ed. 565 (1845); see also Martin v. Waddell, 41 U.S. 367, 413-14, 16 Pet. 367, 10 L.Ed. 997 (1842); Eisenbach v. Hatfield, 2 Wash. 236, 243, 26 P. 539 (1891).
Wash. Const. Art. 17, Sec. 1. The Washington Constitution also did not `debar any person from asserting his claim to vested rights in the courts of the state,' but that provision is not in issue here.
State v. Sturtevant, 76 Wash. 158, 163, 135 P. 1035 (1913); see also Davidson v. State, 116 Wn.2d 13, 20, 802 P.2d 1374 (1991); Hill v. Newell, 86 Wash. 227, 230, 149 P. 951 (1915).
Davidson, 116 Wn.2d at 16, 20, 22; Hill, 86 Wash. at 229; Sturtevant, 76 Wash. at 165, 167.
Sturtevant, 76 Wash. at 164 (quoting Muir v. Johnson, 49 Wash. 66, 94 P. 899 (1908)).
In this case, the Cowlitz River is navigable and, as far as the record shows, no plaintiff owns shorelands. Hence, the record will not support a riparian rights claim, and the trial court did not err.
State v. Federal Power Commission, 207 F.2d 391, 393 (9th Cir. 1953) cert. denied, 347 U.S. 936 (1954); Robinson v. Silver Lake Ry. Lumber Co., 163 Wash. 31, 32, 299 P.2d 356 (1931).
Any remaining issues need not be reached or lack merit.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG and VAN DEREN, JJ., concur.