Opinion
No. 35520-5-II.
September 11, 2007.
Appeal from a judgment of the Superior Court for Thurston County, No. 04-2-00217-3, John R. Hickman, J., entered October 17, 2006.
Affirmed by unpublished opinion per Hunt, J., concurred in by Armstrong and Quinn-Brintnall, JJ.
Don and Monique Taylor appeal the trial court's summary judgment dismissal of their action against the City of Olympia and Vicki Martin for unlawful discharge of water from a driveway easement onto their property. The Taylors argue that there are genuine issues of material fact about (1) whether the driveway easement is a public street, and (2) whether the City is liable for Martin's unlawful discharge of water. We affirm.
Facts I. Background
In 1966, the developer of Thurston County's Lakemoor subdivision, Ken Lake Development Co., (1) dedicated "to the use of the public forever, all streets, lanes, drives, etc., shown on the plat hereon for public purposes"; and (2) reserved an easement for City of Olympia utility lines. The developer recorded "Protective Covenants and Dedications Applicable to Lakemoor" with the Thurston County Auditor in 1966. Under a section titled "Easements," the developer affirmed that "(a)n easement is hereby further reserved for and granted to the City of Olympia for all drainage and sewer line connections shown on the plat other than those located within the public ways shown on said plat." Clerk's Papers (CP) at 110. In 1968, the developer extended the subdivision to include Division 3, for which he made the same public road dedication and granted the same utility easement for the City.
In 1969, Don and Monique Taylor purchased Lot 97 on Lakemoor Place, in the Lakemoor subdivision. At the time, their home was the only one built on Lots 96-100, and there was no flooding. Lakemoor Lane is a paved driveway easement that enables subdivision residents of Lots 96-100 to access Lakemoor Drive, a public street.
In 2003, uphill adjacent neighbor Vicki Martin installed a drain pipe on her property that discharged water onto Lakemoor Lane, which water caused flooding and damage on the Taylors' property.
II. Lawsuit
The Taylors sued Martin and the City for unlawful discharge of water onto their property, alleging that Lakemoor Lane was public property and that the City was liable for Martin's discharge of water onto this allegedly public street. The City moved for summary judgment, arguing that Lakemoor Lane was not a public street and that the City had no duty to maintain drainage for this private easement. The trial court granted the City's motion for summary judgment and dismissed the Taylors' action.
The Taylors appeal.
Analysis
The Taylors argue that there is a genuine issue of material fact about (1) the City's ownership of Lakemoor Lane, and (2) the City's liability for allowing use of its utility easement to divert surface waters onto the Taylors' property. The City counters that (1) Lakemoor Lane is a private easement, (2) therefore, the City bears no liability, and (3) thus, there are no issues of material fact. We agree with the trial court and the City.
I. Standard of Review
On review of an order for summary judgment, we perform the same inquiry as the trial court. Hisle v. Todd Pacific Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004) (citing Kruse v. Hemp, 121 Wn.2d 715, 722, 853 P.2d 1373 (1993)). Our standard of review is de novo.
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). A court should grant summary judgment only if reasonable persons could reach but one conclusion from all the evidence. Vallandigham v. Clover Park School Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005) (citing Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982)).
II. Dedication of Public Roads
The Taylors argue that there is an issue of material fact about whether Lakemoor Lane is the City's property by virtue of the developer's 1966 dedication. The City contends that its interest in Lakemoor Lane is limited to an easement for utilities and that this driveway is not a dedicated public street. Again, we agree with the City.
A dedication is an owner's voluntary donation of land or its use to the public. City of Spokane v. Catholic Bishop of Spokane, 33 Wn.2d 496, 503, 206 P.2d 277 (1949) (quoting Corning v. Aldo, 185 Wash. 570, 576, 55 P.2d 1093 (1936)). An easement is a nonpossesory right to use in some way another's land without compensation. City of Olympia v. Palzer, 107 Wn.2d 225, 229, 728 P.2d 135 (1986).
The party asserting a public dedication, whether of land or of an easement, bears the burden to prove all the elements that comprise a public dedication. Karb v. City of Bellingham, 61 Wn.2d 214, 218-19, 377 P.2d 984 (1963). A common law dedication must be evidenced by "an intention on the part of the owner to devote his land, or an easement in it, to a public use, followed by some act or acts clearly and unmistakably evidencing such intention," and acceptance by the city. City of Spokane, 33 Wn.2d at 502-03 (citing City of Seattle v. Hill, 23 Wash. 92, 97, 62 P. 446 (1900)). The intention of a dedicator must be "clear, manifest, and unequivocal." City of Spokane, 33 Wn.2d at 503 (quoting Corning, 185 Wash. at 576). Acceptance may be express, or implied by municipal acts or public usage. City of Spokane, 33 Wn.2d at 503, (quoting 4 McQuillin, Municipal Corporations, 2d. Rev. 773, § 1704). And the dedicated land must be used by the public at large, not "one person or a limited number of persons, or for the exclusive use of restricted groups of individuals." Knudsen v. Patton, 26 Wn. App. 134, 141, 611 P.2d 1354 (citing 23 Am.Jur. 2d Dedication, § 5 (1965)), review denied, 94 Wn.2d 1008 (1980).
The Taylors also rely on the plat dedication statute, RCW 58.17.165. But this statute was enacted in 1969, three years after the Lakemoor subdivision 1966 public road dedication and grant of a utility easement to the City. Non-remedial statutes apply only prospectively, unless there is clear legislative intent expressing otherwise. See Layton v. Home Indemnity, 9 Wn.2d 25, 34, 113 P.2d 538 (1941).
A. Utility Easement Granted to City, Not a Road Dedicated to the Public
Here, there is no evidence showing that the developer clearly and unmistakably intended to include Lakemoor Lane in the 1966 public road dedication. On the contrary, the plat map recorded in 1966 demarcates this Lane as an "easement" for the City's utility use; there is no mention of Lakemoor Lane being dedicated to the public for a "street, lane, or drive." Furthermore, the roads the developer intended to dedicate to the public are clearly indicated on the plat; in contrast, the area now known as Lakemoor Lane is described in the "Protective Covenants and Dedications Applicable to Lakemoor" as a ten-foot "easement" for utility purposes.
The Taylors argue that the developer's intent to dedicate the Lane for public use is "clearly shown by the dedication on Lakemoor Division 3." Br. of Appellant at 17. But most of the utility easement at issue here is not part of this Division 3 extension of the original Lakemoor subdivision. The portion of Lakemoor Lane between the Taylors' and Martin's properties lies outside the legal boundaries of Division 3.
B. No Right-of-Way Easement
Similarly, there is no issue of material fact regarding the City of Olympia's acceptance, express or implied, of a right-of-way easement on Lakemoor Lane. On the contrary, the City treats Lakemoor Lane as a private road, and the City does not participate in its upkeep beyond maintaining the utility lines along the City's utility easement. The City's participation in changing the easements from "Lakemoor Place, SW" to "Lakemoor Lane, SW" was not an act accepting dedication of the easement as a public right of way. Instead, the City was cooperating with a project to change similarly-sounding addresses that were difficult for emergency responders to locate.
We further note that, in its correspondence to the Lakemoor subdivision residents, the City referred to Lakemoor Lane as a "small easement that is off of Lakemoor Drive." CP at 67-68.
C. Service Access
The Taylors also argue that service workers, deliverymen, and emergency vehicles' use of Lakemoor Lane amounts to the City's implied acceptance of this Lane as a public right of way. This argument also fails. These service and emergency uses benefit the residents of Lots 96-100, not the general public. Thus, such use does not transform this easement into a public right of way by implication.
III. City Liability
Finally, the Taylors argue there is an issue of material fact about whether the City may be liable for allowing surface water diversion over public land onto private property. The Taylors rely on Phillips v. King County, 136 Wn.2d 946, 968 P.2d 871 (1998), to assert that the City is liable for damage the drainage caused to their property. Again, this argument fails.
Generally, the government has no affirmative duty to ensure proper water drainage. Colella v. King County, 72 Wn.2d 386, 391, 433 P.2d 154 (1967) (quoting Ronkosky v. City of Tacoma, 71 Wash. 148, 153, 128 P.2 (1912)). Nonetheless, the State may be liable for unlawful discharge of water where the State is either a direct participant in the discharge or controls the land from which the discharge emanates. Phillips, 136 Wn.2d at 967. The State's mere approval of an action resulting in water discharge, however, does not create State liability for the unlawful discharge or its damage. Phillips, 136 Wn.2d. at 961.
Phillips does not apply here because the diversion of surface water occurred entirely on private land, namely Lakemoor Lane, with no government involvement whatsoever. On the contrary, the City did not permit Martin to use its utility easement when she built a drain pipe on her own land, which drain pipe discharged water onto the Taylors' property. Accordingly, we agree with the trial court that there is no material issue of fact concerning to the City's non-existent liability for Martin's tortious acts.
We affirm.
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, P.J. QUINN-BRINTNALL, J., concur.