Opinion
No. 29709-4-II.
Filed: March 23, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No. 99-2-00536-0. Judgment or order under review. Date filed: 11/05/2002. Judge signing: Hon. Leonard W Costello.
Counsel for Appellant(s), Peter L. Buck, Buck Gordon LLP, 2025 1st Avenue, Suite 500, Seattle, WA 98121-3140.
Jeffrey S. Weber, Buck Gordon LLP, 2025 1st Ave Ste 500, Seattle, WA 98121-3140.
Counsel for Respondent(s), Mark Robert Johnsen, Attorney at Law, 1201 3rd Ave Ste 2900, Seattle, WA 98101-3284.
The Gunstones appeal the dismissal on summary judgment of their claims against Jefferson County for property damage when an upstream culvert became blocked and the impounded water subsequently burst through a large county road fill. We hold that there were genuine issues of material fact regarding negligence because the inlet was on County property, and the County's response was a proprietary function not shielded by the public duty doctrine. We hold that RCW 38.52.180(2), which requires an affirmative act, does not shield the County from liability. We hold that there are issues of material fact about the County's collection and discharge of water that make summary judgment improper as to the Gunstones' strict liability claim. We further hold that a prior agreement between a railroad and the County is not binding on the Gunstones because the Gunstones took title by having a superior interest to the railroad, not as a successor; therefore, the Gunstones were neither required to indemnify the County nor were responsible for damages claimed by the County under the agreement. We reverse and remand.
Jefferson County constructed Old Gardiner Road (OGR) in 1914 (CP 301). State Route 101 roughly parallels OGR as the roads run through the Contractor's Creek watershed area on the northern edge of the Olympic Peninsula. Contractor's Creek passes under both roadways through concrete culverts before emptying into Discovery Bay. Both roads divert surface water from its pattern of natural flow, which would otherwise dissipate in a different direction. OGR's artificial surface water channel exists along its southern shoulder. The diverted surface water from both roads makes its way to Contractor's Creek where it flows through the culvert, continues downstream, and empties into Discovery Bay.
In the Contractor's Creek area, OGR courses along a 70-foot tall fill composed of earthen materials. The ravine in which Contractor's Creek descends intersects the fill at a roughly perpendicular angle, creating what the parties describe as "[t]he Bowl" behind the fill's upstream side. Clerk's Papers (CP) at 326. The bowl is drained by the aforementioned culvert running through the fill beneath OGR. The culvert is described as a "180-foot long concrete box culvert linked to an approximately 48-foot long round corrugated metal pipe." CP at 630.
The Gunstones own much of the property downstream of the OGR fill. The property supported the Gunstones' homes, gardens, orchards, boat ramp, and commercial operations, and Contractor's Creek flows through it. The Gunstones used the tidelands area along Discovery Bay as part of their commercial shellfish operation. Specifically, the tidelands provided fertile shellfish beds, both naturally and artificially established, for a variety of clams and oysters. The Gunstones also used the tidelands to store shellfish that they had harvested elsewhere.
The Contractor's Creek area, including the Gunstones' property, was formerly owned by the Simpson Logging Company. In 1913, Simpson deeded a right-of-way, which roughly paralleled the future OGR route, to the Seattle Port Angeles Lake Crescent Railway. Seattle Port Angeles Lake Crescent eventually transferred the right-of-way to the Chicago, Milwaukee, St. Paul and Pacific Railroad (the Railroad). In 1965, the Railroad removed the old train trestle that bridged Contractor's Creek and constructed a fill adjacent to the downstream side of the OGR fill. Contractor's Creek flowed through the Railroad's fill by an extension culvert that the Railroad attached, with the County's consent, to the existing culvert under OGR. The County's consent was conditioned, however, on an indemnity agreement that provided, "[t]he Railroad shall protect and indemnify the County from liabilities arising from the construction or presence of said fill and railroad tracks thereon upon and across the above-described portion of the county highway." CP at 35. This agreement was recorded in Jefferson County.
In 1984, the Gunstones wrote the County and the Railroad that the extension culvert had partially collapsed. The Railroad acknowledged its responsibility for the repairs, but never made them. By 1987, the Railroad had long since ceased operating its line in the Contractor's Creek area, and the right-of-way, tracks, fill, and culvert were, for all intents and purposes, abandoned by the Railroad's successor. The Gunstones decided to file a quiet title action concerning the right-of-way, and a default judgment was entered in Jefferson County Superior Court on November 6, 1987. The judgment quieted fee simple title to the Railroad's right-of-way in the Gunstones.
During the last week of December 1996, a severe winter storm hit western Washington, bringing heavy rains and snowfall. Jefferson County thought the storm so severe that, on December 30, it adopted a resolution allowing its public works department to enter into emergency contracts with private parties.
The storm dramatically increased the surface water volumes in the Contractor's Creek watershed area. Much of this increased flow was diverted into the artificial channels created by State Route 101 and OGR's southern shoulder. Consistent with the flow patterns described above, the water flowed into Contractor's Creek where it would normally pass through the culvert lying under the OGR fill. But the culvert had become blocked due to the saturation and partial collapse of the OGR fill. The Gunstones' evidence suggests that the artificial water diversions caused by Route 101 and OGR were the source of the saturation.
During the 18-20 hours following the culvert blockage, 26 million gallons of surface water impounded in the bowl behind the OGR fill. The County learned of the impoundment around 9:30 p.m. on December 31, 1996. County personnel inspected the situation that evening, but they decided that nothing could safely be done in the middle of the night. The next morning, County personnel again inspected the OGR fill, this time deciding that the best course of action was to allow the now 70-foot deep lake to drain slowly through the culvert or over the top of OGR.
At mid-day on January 1, 1997, the State of Washington became concerned that the impounded lake behind the OGR fill might lead to a failure of the fill beneath State Route 101. The State hired two local contractors to dig a five-foot deep relief ditch through OGR, expecting the impounded water to flow gradually through. But the pressure was too great, and the fill totally collapsed, sending a wall of water containing thousands of cubic yards of sediment and debris downstream and onto the Gunstones' property and tidelands. The Gunstones' property generally, and their shellfish beds in particular, suffered great damage.
The Gunstones sued Jefferson County and the State of Washington, alleging numerous causes of action. Against the County, the Gunstones alleged negligent design and maintenance of OGR and its culvert, negligent response to the OGR culvert blockage, nuisance, trespass, inverse condemnation, wrongful removal of soil, violation of the Public Disclosure Act, and various forms of strict liability. The County counterclaimed, alleging that the Gunstones were obligated under the 1965 Railroad agreement to indemnify the County for damages to County property.
The claims against the State were similar, but certain claims pertained to State Route 101 rather than OGR. The Gunstones and the State settled all claims and counterclaims.
The parties subsequently brought several motions for summary judgment. Several rulings were handed down: (1) the court ruled that, as a matter of law, the public duty doctrine barred the Gunstones' negligent response claim; (2) the court dismissed the Gunstones' strict liability and inverse condemnation claims; and (3) the court ruled that the Gunstones "stand in the shoes of the Milwaukee Railroad" with respect to the 1965 Railroad agreement and were therefore required to indemnify the County for damage caused by the Railroad fill or extension culvert. The Gunstones voluntarily dismissed their remaining claims.
When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). "In a summary judgment motion, the burden is on the moving party to demonstrate that there is no genuine issue as to a material fact and that, as a matter of law, summary judgment is proper." Atherton Condo. Apartment-Owners Ass'n Bd. of Directors v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). We consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wn.2d at 437.
I. Negligent Response
"The essential elements of actionable negligence are: (1) the existence of a duty owed to the complaining party; (2) a breach thereof; (3) a resulting injury; and (4) a proximate cause between the claimed breach and resulting injury." Pedroza v. Bryant, 101 Wn.2d 226, 228, 677 P.2d 166 (1984). The threshold question of duty is one of law that we review de novo. Pedroza, 101 Wn.2d at 228.
The Gunstones' negligent response claim focuses on a municipality's duty to maintain culverts so as not to obstruct the natural flow of surface water. See Ronkosky v. City of Tacoma, 71 Wn. 148, 152, 128 P. 2 (1912); see also Colella v. King County, 72 Wn.2d 386, 390-91, 433 P.2d 154 (1967). This duty, which certainly exists, must account for ordinary volumes of water during all seasons, which necessarily and logically includes a greater volume during rainy seasons. See Ronkosky, 71 Wash. at 152; see also Nielson v. King County, 72 Wn.2d 720, 725, 435 P.2d 664 (1967). And though not specifically stated in the case law, the duty to maintain must include the duty to remove an obstruction within a reasonable time after actual or constructive notice. See 57 Am.Jur.2d, Municipal, County, School, and State Tort Liability §§ 353, 355 (2001). Without the concomitant duty of obstruction removal, the duty of maintenance would lack substance and afford no redress to an injured person.
Surface waters are "waters of a casual or vagrant character having a temporary source, and which diffuse themselves over the surface of the ground, following no definite course or defined channel." Dahlgren v. Chicago, Milwaukee Puget Sound Ry. Co., 85 Wn. 395, 405, 148 P. 567 (1915).
The parties' positions on the public duty doctrine are relatively straightforward. The parties disagree as to whether the County acted in a governmental or proprietary capacity when it responded to the blocked culvert. If proprietary, as the Gunstones claim it was, then the public duty doctrine is no shield against their negligence claim. See Borden v. City of Olympia, 113 Wn. App. 359, 371, 53 P.3d 1020 (2002) ("[t]he public duty doctrine does not apply . . . when a government performs a proprietary function"), review denied, 149 Wn.2d 1021 (2003).
"A government performs a proprietary function `when it engages in a business-like venture as contrasted with a governmental function.'" Borden, 113 Wn. App. at 371 (quoting Hoffer v. State, 110 Wn.2d 415, 422, 755 P.2d 781 (1988) (citing Black's Law Dictionary 1097 (5th ed. 1979)), recons. granted, 113 Wn.2d 148 (1989))). A proprietary function is one that private enterprise usually performs. Russell v. City of Grandview, 39 Wn.2d 551, 553, 236 P.2d 1061 (1951). Proprietary functions include operating a water or sewer system. Russell, 39 Wn.2d at 553 (water system); Hayes v. City of Vancouver, 61 Wn. 536, 538, 112 P. 498 (1911) (sewer system). Logically then, a governmental function is one that the government usually performs to the exclusion of private enterprise. Governmental functions include auditing public offices, registration of securities, issuing building permits, and conducting building inspections. Hoffer, 110 Wn.2d at 423 (auditing public offices and registration of securities); Taylor v. Stevens County, 111 Wn.2d 159, 164-65, 759 P.2d 447 (1988) (building permits and inspections).
The Gunstones assert that the proprietary-governmental issue in this case depends only on the location of the blockage in the culvert. If the blockage occurred at the inlet, the argument goes, then the County's response was a proprietary function because the inlet was on County property and, as such, the County was acting as any property owner would. On the other hand, if the blockage occurred at the transition area, then the Gunstones concede that the County's response would have been an exercise of its police power and, thus, a governmental function because the transition area was not on county property. The facts viewed in a light favorable to the Gunstones place the blockage at the inlet. The question presented is, therefore, whether a county's response to a blocked culvert on county property is a proprietary function.
Concerning the proprietary-governmental distinction, the County's main thrust is that, in responding to the blocked culvert, it was engaged in "emergency response." Br. of Resp't at 15. The County analogizes this response to the type normally done by fire departments, ambulances, and the police. As those are within the government's police power function, which is governmental and not proprietary, the County asserts that its response to the culvert was also governmental. See Whiteside v. Benton County, 114 Wn. 463, 465, 195 P. 519 (1921) ("`In preserving the peace, caring for the poor, preventing the destruction of property by fire, and preserving the public health, it assumes duties which are said to be in their nature solely governmental'") (quoting Sutton v. City of Snohomish, 11 Wn. 24, 39 P. 273 (1895)).
The County cites no authority, however, for its proposition, and indeed the analogy is not appropriate. Certain parallels may exist between the County's response here and a fire response or response to a crime, such as the necessity for quick action; but a County's response to a blocked culvert is by no reasonable comparison as uniquely governmental as responding to a house fire or a report of a crime.
"Stated simply, if the undertaking of the government is one in which only a governmental agency could engage, it is governmental in nature; it is proprietary and private when any corporation, individual, or group of individuals could do the same thing." 57 Am. Jur.2d Municipal, County, School, and State Tort Liability sec. 53. The County does not contend that responding to blocked culverts generally is its function alone. And although neither party produced evidence supporting or refuting that culvert response and repair is a private business venture, the only reasonable conclusion is that the County would not, and has no obligation to, respond to blocked culverts on privately owned land. Thus, the County's response was not the type of action shielded by the public duty doctrine.
This conclusion is supported by holdings from other jurisdictions. See, e.g., City of Tyler v. Kelly, 211 S.W.2d 768, 770 (1948) (city acted in proprietary capacity when it ordered the removal of a dangerous culvert); see also Mitts v. Village of Fowlerville, 119 Mich. App. 76, 326 N.W.2d 431 (1982) (operation of Village sewer system not a governmental function).
Since the County's response was a proprietary function, then summary dismissal was improper. Without the limitation of the public duty doctrine, the negligent response claim should have been tried because the County owed a duty, and the questions of breach, proximate cause, and damages would have been for the trier of fact. See Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).
Additional questions of fact include the time of notice to the County of the obstruction and the timeliness of its response to minimize damage to property owners.
II. Application of RCW 38.52.180(2)
The County contends that RCW 38.52.180(2) precludes its liability for any negligence in responding to the blocked culvert. The statute provides, in relevant part:
All legal liability for damage to property or injury or death to persons (except an emergency worker, regularly enrolled and acting as such), caused by acts done, or attempted, under the color of this chapter in a bona fide attempt to comply therewith shall be the obligation of the state of Washington. Suits may be instituted and maintained against the state for the enforcement of such liability, or for the indemnification of persons appointed and regularly enrolled as emergency workers while actually engaged in emergency management duties, or as members of any agency of the state or political subdivision thereof engaged in emergency management activity, or their dependents, for damage done to their private property, or for any judgment against them for acts done in good faith in compliance with this chapter.
In response, the Gunstones first suggest that the County failed to raise this contention below, and that we should therefore decline review. Although an independent review of the record confirms that the County did not make the argument during the summary judgment proceedings, it is undisputed that the County alleged RCW 38.52.180(2) as an affirmative defense in its answer to the Gunstones' complaint. This attention was sufficient to merit review. See Shaw v. City of Yakima, 183 Wn. 200, 203-04, 48 P.2d 630 (1935).
Next, the Gunstones argue that RCW 38.52.180(2) applies only to affirmative acts and not omissions or failures to act. And as their negligent response claim focuses on what the County failed to do, the Gunstones believe that RCW 38.52.180(2) does not shield the County from liability. We agree.
The Gunstones point to the statute's first sentence and, more specifically, the phrase "caused by acts done, or attempted." RCW 38.52.180(2). This sentence is not susceptible to more than one reasonable construction, so the rules of statutory interpretation do not apply. See Burton v. Lehman, 118 Wn. App. 307, 312, 76 P.3d 271 (2003). The sentence does not refer generally to injuries and property damage occurring during a disaster or emergency; rather, it refers to injuries and damage of a more limited class, i.e., one composed of only injuries and damages that a political subdivision (e.g., a county) causes in the doing or the attempt of an act responsive to an emergency or disaster. A responsive action, then, is required for a county to invoke the liability protection of RCW 38.52.180(2).
Two other factors support this result. First, the legislature's use of the word "attempted" suggests that an affirmative act is required as it makes little sense that the legislature would be referring to an "attempted" omission. Second, subsection (1) of the same statute, which governs a shelter provider's premises liability during an enemy attack, explicitly states "any act or omission." Thus, the legislature may be charged with consciously selecting the phrase "acts done, or attempted" for RCW 38.52.180(2) over "acts or omissions." We conclude that RCW 38.52.180(2) does not shield the County from liability in this instance.
III. Strict Liability
The Gunstones next challenge the trial court's decision dismissing their strict liability claim. The County contends that the strict liability standard is improper in this context. The County maintains that the only case invoking strict liability is Burton v. Douglas County, 14 Wn. App. 151, 155, 539 P.2d 97, review denied, 86 Wn.2d 1007 (1975), a Division Three case that the County claims is unsupported by subsequent case law.
Burton, which did invoke strict liability, relied on Tope v. King County, 189 Wn. 463, 471, 65 P.2d 1283 (1937). In Tope, the County constructed an artificial barrier ridge that diverted surface water away from its natural drainage and into a basin above Tope's property. During an unprecedented snowmelt and rainfall, the basin became overburdened and a torrent of water swept over Tope's property causing damage. The County maintained that it could not have reasonably foreseen the unprecedented snowmelt and rainfall in the exercise of ordinary care, i.e., it was not negligent. The Tope court noted two legal principles affecting its decision:
[1] One on whose land surface and outlaw waters flow, may not collect such waters in drains or artificial channels and cast them on the lands of others, or so near thereto that they will find their way thereon, to the damage of others.
. . .
Nor does it make any difference whether the waters are cast immediately upon the land of a complaining owner or upon lands from which they inevitably flow onto his land. The proximate cause is the original wrong in diverting the water so as to cause the harm.
[2] When two causes combine to produce an injury, both of which are, in their nature, proximate and contributory to the injury, one being a culpable negligent act of the defendant, and the other being an act of God for which neither party is responsible, then the defendant is liable for such loss as is caused by his own act concurring with the act of God, provided the loss would not have been sustained by plaintiff but for such negligence of the defendant. The burden of proof, however, is upon the defendant to show that the loss is due solely to an act of God.
Tope, 189 Wash. at 471-72 (citations omitted).
The second theory clearly depended on a culpable negligent act. Whether the County observed the appropriate standard of care in designing and constructing the artificial barrier would be the focus in such a claim. The Gunstones included this precise theory in their fourth amended complaint.
The first theory, conversely, focuses merely on the fact of diversion and the resultant harm. It reflects the principle that a landowner has no right to divert naturally occurring water from his to another's land and to cause harm thereby, irrespective of the diligence and care used in erecting the diversion.
We note that the common enemy doctrine is not at issue here. Neither party raises the issue, and the doctrine is inapplicable in this context as it shields a landowner from liability only when he diverts water onto another's land for the protection of his own land. See Pruitt v. Douglas County, 116 Wn. App. 547, 554, 66 P.3d 1111 (2003). The County does not contend that the diversion caused by OGR was for the protection of County land.
The Tope court held that the case fell within the first principle, which did not depend on the defendant's negligence; and many cases, both before and after Tope, have confirmed and applied the theory. See Peters v. Lewis, 28 Wn. 366, 369, 68 P. 869 (1902); Noyes v. Cosselman, 29 Wn. 635, 642, 70 P. 61 (1902); Whiteside, 114 Wash. at 467; Pruitt v. Douglas County, 116 Wn. App. 547, 556, 66 P.3d 1111 (2003). Further, we have recognized this theory, and the Supreme Court has stated that the theory applies specifically to county roads that serve as the artificial diversion. See Hoover v. Pierce County, 79 Wn. App. 427, 432, 903 P.2d 464 (1995) (we stated, "the municipality may not collect surface water by artificial means, channel the water, and deposit it on private property, thereby causing damage, unless the municipality compensates the owner"), review denied, 129 Wn.2d 1007 (1996); see Diblasi v. City of Seattle, 136 Wn.2d 865, 878-79, 969 P.2d 10 (1998) (municipalities can be liable when property damage results from "a street that acts to channel, collect and thrust water onto an adjoining landowners property"). Thus, contrary to the County's assertion, post-Burton case law generally supports a strict-liability theory.
Having established the viability of strict liability in the present context, we must decide whether that theory should have gone to the trier of fact. This task depends on the existence of an issue of material fact as to whether the County artificially collected and discharged surface water onto surrounding properties in a manner different or volume greater than the natural flow, thereby proximately causing damage to the Gunstones' property. See King County v. Boeing Co., 62 Wn.2d 545, 550-51, 384 P.2d 122 (1963); Halverson v. Skagit County, 139 Wn.2d 1, 18-19, 983 P.2d 643 (1999); Burton, 14 Wn. App. at 154; Tope, 189 Wash. at 471.
In his declaration, the Gunstones' expert gave his version of the massive flow that occurred on December 31, 1996. He indicated that 80 percent of the flow was diverted from outside the natural watershed of Contractor's Creek. Although much of the artificial flow came from a culvert under Highway 101, which was not a County road, "[s]ome of this diverted water originated on OGR itself and, therefore, may be attributable to its original construction by [the] County." CP at 251-52. The expert further stated that the diverted water saturated the OGR fill, "causing a portion [of the fill] to fail and block the head of the culvert." CP at 252. "The failure obstructed the flow of the Creek through the culvert, leading to the impoundment of a reported 26 million gallons of water over the following 18 to 20 hours." CP at 252.
An issue of material fact certainly exists concerning the County's artificial collection and discharge of water in a manner different or a volume greater than the natural flow. At the summary judgment phase, the trial court should not be concerned with the State's, or any other entity's, comparative fault. As to the Gunstones' present claim, it suffices that a material issue of fact exists as to whether that water artificially diverted by the County contributed to the impounded lake that formed behind the culvert's inlet. This cannot be taken, however, as a statement that the County's artificial diversion proximately caused the damage to the Gunstones' property. The Gunstones' evidence must establish a material issue of fact on that point as well.
"The first prong of proximate cause is cause in fact." Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190, 203, 15 P.3d 1283 (2001). This question is one for the jury unless reasonable minds could not differ. Schooley v. Pinch's Deli Mkt., Inc., 80 Wn. App. 862, 876, 912 P.2d 1044 (1996), aff'd, 134 Wn.2d 468 (1998). "Cause in fact [typically] concerns `but for' causation, events the act produced in a direct unbroken sequence which would not have resulted had the act not occurred." Hertog v. City of Seattle, 138 Wn.2d 265, 282-83, 979 P.2d 400 (1999). But in a case where either of two forces was sufficient to cause the same harm, the "but for" test is inappropriate; to apply it in such a case would prevent a finding that either force proximately caused the harm. Daugert v. Pappas, 104 Wn.2d 254, 262, 704 P.2d 600 (1985) (citing W. Page Keeton and William Prosser, Prosser and Keeton on the Law of Torts sec. 41 (5th ed. 1984)). Instead, the appropriate inquiry is whether the defendant's wrongful act "`was a substantial factor in bringing about the injury even though other causes may have contributed to it.'" Allison v. Housing Auth. of City of Seattle, 118 Wn.2d 79, 94, 821 P.2d 34 (1991) (quoting Robert Belton, Causation in Employment Discrimination Law, 34 Wayne L. Rev. 1235, 1247 (1988)).
The substantial factor test should apply here even though we cannot state with certainty that the flow caused by the OGR diversion would have saturated the fill and caused it to collapse without the flow caused by the Highway 101 diversion. Because the expert's declaration indicates that both of the flows contributed to the collapse, we apply the substantial factor test.
Whether the OGR diversion was a substantial factor is an issue for the trier of fact. Certainly, and based solely on the expert's declaration, an issue of material fact exists on the point. As with the immediately preceding discussion, we view the facts in that declaration as sufficient evidence that the OGR was a substantial factor even though the declaration suggested that "most" of the flow came from the Highway 101 diversion. By its terms, the declaration is inconclusive, and the trier of fact is best equipped to decide the issue. Summary judgment was error concerning the strict liability claim.
IV. Inverse Condemnation
The United States and Washington constitutions prohibit the taking of private property for public use without just compensation. U.S. Const. amend. V; Wash. Const. art. I, sec. 16. An action for "inverse condemnation is used to describe an action alleging a governmental `taking', brought `to recover the value of property which has been appropriated in fact, but with no formal exercise of the power.'" Lambier v. City of Kennewick, 56 Wn. App. 275, 279, 783 P.2d 596 (1989), review denied, 114 Wn.2d 1016 (1990) (quoting Martin v. Port of Seattle, 64 Wn.2d 309, 310 n. 1, 391 P.2d 540 (1964), cert. denied, 379 U.S. 989 (1965)). A "taking" occurs when, by affirmative action, the government invades or interferes with the use and enjoyment of property. Gaines v. Pierce County, 66 Wn. App. 715, 725, 834 P.2d 631 (1992), review denied, 120 Wn.2d 1021 (1993). The invasion must be permanent or recurring. Gaines, 66 Wn. App. at 725.
The Gunstones contend that the dismissal of their inverse condemnation claim was improper. Their claim is an action to recover the value of property which was appropriated in fact, but with no formal exercise of the power of eminent domain. The Gunstones' claim rests either on their claim of negligence or strict liability. If the Gunstones prove either negligence or strict liability, they will recover. This claim is redundant. We decline to address this alleged error.
V. 1965 Railroad Agreement
The Gunstones next appeal the trial court's ruling that they were required to indemnify the County for its liability under the 1965 agreement between the County and the Railroad. The Gunstones' liability for indemnification ultimately turns on whether they succeeded to the Railroad's interest in the right-of-way or held the land in fee.
First, the contention is over who held the fee interest in the right-of-way prior to the 1965 agreement. This point is relevant because if the Railroad owned the right-of-way in fee, then it could bind its successors to running covenants. But contrary to the tenor of the County's brief, the Gunstones do not presently bear the burden of establishing an issue of fact on the point.
Surprisingly, the several deeds that one would expect to guide our analysis on the chain of title are not in the record. The only deed that was presented to the trial court was between The Simpson Logging Co., one of the Gunstones' predecessors, and a partnership called Johnson and Gunstone. The County cites this deed as establishing, by way of an exception in the deed, that the Railroad had fee title to the right of way. The exception reads, "[e]xcepting the right-of-way granted to Seattle, Port Angeles and Lake Crescent Railway Company." CP at 390. The railroad named in the exception appears to have been the Railroad's predecessor.
Grantors may convey railroad rights-of-way in fee simple or as an easement. Morsbach v. Thurston County, 152 Wn. 562, 573, 278 P. 686 (1929). But Washington law presumes an easement absent express language to the contrary. Hanson Indus., Inc. v. County of Spokane, 114 Wn. App. 523, 527, 58 P.3d 910 (2002), review denied, 149 Wn.2d 1028 (2003).
We cannot examine the language used in the instrument that conveyed the right-of-way as that document is not in our record. The only evidence before us that arguably bears on the issue is the above-referenced exception in an otherwise irrelevant deed. But because the phrase "right-of-way" is conclusive of nothing, we cannot determine, with sole reference to this document, that this deed establishes an easement or fee interest in the Railroad. The County has not established the absence of an issue of material fact based on its ownership-in-fee theory.
The second theory addressing the Gunstones' liability for indemnification presents a purely legal argument. The underlying facts are undisputed: In 1987, the Gunstones obtained a default judgment in a quiet title action against the Railroad's immediate successor, and the County was not a party to the suit. The Gunstones contend that (1) this judgment established that they took the right-of-way by reversion, which means that the Railroad could not have held the right-of-way in fee; and (2) because the Gunstones owned the fee, the Railroad as easement holder could not bind them to the indemnification agreement, i.e., the covenant lacks vertical privity of estate. The County replies that (1) the default judgment is not effective against it because it was not a party to the suit and (2) the judgment could not have established the Gunstones' title by way of reversion.
We need to first decide whether the default judgment applies against the County. In arguing that it does not, the County cites Nielson v. Spanaway Gen. Med. Clinic, Inc., 135 Wn.2d 255, 263, 956 P.2d 312 (1998). Nielson was decided on collateral estoppel grounds, and it probably supports the County's assertion that the elements of collateral estoppel are not satisfied here — i.e., the County was not a party or in privity with a party from the quiet title action. See Watkins v. Siler Logging Co., 9 Wn.2d 703, 721, 116 P.2d 315 (1941) ("One is in privity with a party when he stands in a mutual or successive relationship to the same rights of property.") But the County's focus is misdirected; the Gunstones are not raising collateral estoppel specifically, and there is no indication that the County wishes to relitigate the issue decided by the 1987 default judgment. In fact, the County seems to have acquiesced to the default judgment's validity. Therefore, Nielson is not instructive.
As the Gunstones take care to point out, the County "is not asserting any independent claim to the right[-]of[-]way, but is basing its claim . . . on . . . the Railroad's interest." Br. of Appellant at 40. As stated in Watkins, "[o]ne asserting or defending a right by virtue of another's title to property is bound by a judicial determination on the merits, which is binding upon that other, to the effect that that person has no right, title or interest in the property in question." Watkins, 9 Wn.2d at 722. Although Watkins was also a res judicata case, the principle should apply here because the County does not wish to relitigate the nature of the Railroad's interest. As the judgment unquestionably bound the Railroad, it should also bind a party claiming only through the Railroad's interest, i.e., the County.
Next we decide whether the default judgment is conclusive that the Gunstones took the right-of-way by reversion. If they did, then they held the fee before the Railroad's right-of-way, they were not the Railroad's successor-in-interest, and the Railroad therefore could not bind them to the indemnification agreement. But if the default judgment did not establish the Gunstones' reversion, then the indemnification issue is no closer to resolution because we then do not know the nature of the Gunstones' pre-1965 interest or the nature of the Railroad's interest.
As authority for its contention that the default judgment established a reversion, the Gunstones cite Gattavara v. Henrikson, 3 Wn. App. 585, 476 P.2d 131 (1970), and Sceva Steel Buildings, Inc. v. Weitz, 66 Wn.2d 260, 262, 401 P.2d 980 (1965). Neither of these cases specifically supports the contention; they merely hold that the remedy afforded by a default judgment cannot exceed that requested in the pleadings. The question now presented is, in contrast, whether a default judgment impliedly accepts the legal theory on which the plaintiff bases his case.
A quiet title action allows a "person having a valid subsisting interest in real property [to] recover" that interest if he establishes that his is "the superior title." RCW 7.28.010, .120. By use of the phrase "having a valid subsisting interest," the governing statutes contemplate that the prevailing party has an interest in the property that existed before the moment of judgment in the quiet title action. And because the Gunstones prevailed, theirs must have been the "superior title." By these deductions, the Gunstones had an existing interest in the right-of-way that was superior to the interest held by the Railroad and its successor.
Having established that the Gunstones' interest existed prior to the 1987 default judgment and was superior to the Railroad's interest, the Gunstones cannot have been the Railroad's successors-in-interest. Therefore, the Railroad could not bind the Gunstones to covenants respecting the right-of-way. The indemnity agreement is thus not enforceable against the Gunstones, and the trial court erred in granting summary judgment in the County's favor.
VI. The Gunstones' Statute of Limitations Defense
Finally, the County appeals the trial court's ruling that the six-year statute of limitations barred its counterclaim against the Gunstones. The County's claim relied on the Gunstones' alleged obligation under a covenant contained in the 1965 agreement between the County and the Railroad. As established in the previous section, the Gunstones had a superior interest in the right-of-way, and therefore, neither the Railroad nor the County could bind the Gunstones to the covenants in the 1965 agreement. Thus, a decision on the applicability of RCW 4.16.160 is unnecessary. As a matter of law, the Gunstones were not obligated under the 1965 agreement.
Reversed and remanded.
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.
MORGAN, and HUNT, C.J., concur.