Common Enemy Doctrine, Water law

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Anyone who lives along a lake, river creek or stream needs to be aware of these laws regarding waterways.

Currens v. Sleek,, September 9, 1999, Case No. 66830-2, Washington State Supreme Court determined that liability exists for anyone who causes damage to another’s property by increasing surface water flow onto that other property without exercising due care to prevent such damage.

“In its strictest form, the common enemy doctrine allows landowners to dispose of unwanted surface water in any way they see fit, without liability for resulting damage to one’s neighbor.   The idea is that “surface water ․ is regarded as an outlaw and a common enemy against which anyone may defend himself, even though by so doing injury may result to others.”  Cass, 14 Wash. at 78, 44 P. 113.”

Over the years, the Washington State Supreme Court has established exceptions to this rule.

  1. Although a landowner may block the flow of diffuse surface water onto their land, the first exception to the general rule provides that landowners may not inhibit the flow of a watercourse or a natural drain way. Island County v. Mackie, 36 Wn. App. 385, 388, 675 P.2d 607 (1984).
  2. Landowners cannot collect (i.e., accumulate) and channel it onto their neighbors’ land. Sleek, 138 Wn.2d at 862.
  3. The third and final exception is known as the “due care” exception. Under this rule, landowners may improve their land free from liability for damages caused by the change in the flow of surface water onto the neighboring property so long as the landowners act in good faith and by avoiding unnecessary damage to the property of others.  Sleek, 138 Wn.2d at 864-65.

On several occasions, Washington courts have ruled that a landowner whose actions caused flooding or created adverse drainage consequences on a neighboring parcel may not assert the common enemy doctrine as a defense where the landowner failed to use due care to minimize the damage to the neighboring parcel.  See Borden v. City of Olympia, 113 Wn. App. 359, 364, 53 P.3d 1020 (2002); Hoover v. Warner, 189 Wn. App. 509, 524, 358 P.3d 1174, 1182 (2015).

Inhibiting the flow of a watercourse or natural drain way, channeling water onto a neighbors’ land, or taking any action concerning surface or subsurface water without using due care may subject a landowner to liability.

With that information, do you live on a local creek in Pierce County? You must think very carefully and consult proper authorities before changing the course of surface water on your land. You are allowed to take measure to protect your property in case of a flood, but diverting more water onto your neighbors land and endangering their property is not supported.

Have you seen changes in the flow of a creek in your area recently? Whether you can blame beavers or discover a neighbor has blocked a channel in a creek, you may be able to take action against that situation if it is causing harm to your property.

One of the places you can turn is Pierce County Code Enforcement.

Another great site for information is the Pierce County Works Portal.

Protecting your property from hazards, you sometimes need to ask for help. If you happen to be the landowner who is causing the issue, understand too, that if Pierce County comes out and must mitigate a hazard created on or by your property, they will bill for it and/or place a lien on your parcel.

So think and call before you make a change, you may save yourself the need for an attorney later.

These photos are Clover Creek, upstream from 152 Street, a place that sometimes floods during sever rain events. From that point to Military Road (Cross Park) there is a wide area that has been filling with water. The reason is no longer unknown, and the situation is being investigated.

If it doesn’t seem right, finding out who to ask is sometimes that hardest part. These links should help.

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