Evelyne Grundy, Petitioner, v. Thurston County et al., Respondents, 155 Wash. 2d 1

¶1 Ireland, J. In this case, we consider whether a private nuisance claim brought by Evelyne Grundy, who alleges seawater damaged her property because her neighbors raised the height of their seawall, should be dismissed in light of the common enemy doctrine. We reverse the Court of Appeals dismissal of her private nuisance claim, and we hold that the common enemy doctrine does not apply to seawater. FACTS ¶2 Evelyne Grundy owns property on the west side of Johnson Point in Thurston County. She has lived there since 1981.

Adjoining property at the end of the point was purchased by the Brack Family Trust (Bracks) about 10 years later. Although the properties were each protected by a seawall, the Bracks’ wall was about 12 inches lower than Grundy’s. Seawater from Puget Sound regularly flooded a portion of the Bracks’ property during winter storms. ¶3 The Bracks extensively remodeled the single family residence located on their property and made other improvements. In 1997, they sandbagged along their seawall, and in the fall of 1998, they sought to raise the seawall surrounding their property by 16 to 18 inches.

They obtained hydraulic project approval from the Department of Fish and Wildlife and a determination from Thurston County that they were not required to obtain a permit under the Shoreline Management Act of 1971,

chapter 90.58 RCW. The stated purpose for raising the seawall was to prevent storm erosion and water intrusion. Grundy received no notice of the government action. ¶4 Seawater diverted by the Bracks’ sandbags during winter storms in 1998-99 caused Grundy’s property to be damaged by seawater for the first time. Water came within about 22 feet of Grundy’s foundation and destroyed 1,200 square feet of vegetation.

Grundy worried that more severe storms would cause water to enter her home through ground-level vents, destroying electrical and heating fixtures and undermining the structure. ¶5 Construction of the addition to the Bracks’ seawall began in March 1999. Because the eastern portion was raised first, Grundy’s view of the project was obscured until construction was almost complete. PROCEDURAL HISTORY ¶6 Grundy filed a nuisance action against Thurston County and the Bracks in November 1999. She claimed Thurston County created a public nuisance by improperly exempting the Bracks’ project from the permitting process.

She also claimed the Bracks’ seawall constituted a private nuisance because it made her property vulnerable to flooding. She sought abatement and attorney fees. ¶7 The Bracks moved for

summary judgment, arguing that Grundy was not entitled to challenge Thurston County’s decision because she did not timely seek review under the Land Use Petition Act,

chapter 36.70C RCW. The Bracks also argued that Grundy could present no evidence that raising the seawall impacted her property. ¶8 The trial court granted the Bracks’ motion, dismissing Grundy’s cause of action as to the seawall and ordering as follows: The plaintiff’s first cause of action is DISMISSED; this dismissal is without prejudice to any new claim the plaintiff may have against Thurston County for issuance of the shoreline exemption. Thurston County waives any objection to plaintiff amending the complaint to include such new cause of action upon plaintiff meeting all claim filing requirements.

Clerk’s Papers at 94. |9 Grundy appealed, and the Court of Appeals affirmed, holding that Grundy’s public nuisance claim was time-barred under the Land Use Petition Act and that the Bracks were entitled to prevent damage to their property under the common enemy doctrine. Grundy v. Brack Family Trust, 116 Wn. App. 625, 67 P.3d 500 (2003). flO This Court granted Grundy’s petition for review. Grundy v. Brack Family Trust, noted at 150 Wn.2d 1009, 79 P.3d 445 (2003). ANALYSIS Standard of Review f 11 When reviewing a grant of

summary judgment, an appellate court undertakes the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982); Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995) (“This court reviews the facts and law with respect to

summary judgment de novo.”).

Summary judgment is proper “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); see also Dickgieser v. State, 153 Wn.2d 530, 535, 105 P.3d 26 (2005). “[T]he court must consider all facts submitted and all reasonable inferences from the facts in the light most favorable to the nonmoving party.” Highline Sch. Dist. No. 401 v. Port of Seattle, 87 Wn.2d 6, 15, 548 P.2d 1085 (1976).

Nuisance Law ¶12 “Nuisance is ‘a substantial and unreasonable interference with the use and enjoyment of land.’ ” Bodin v. City of Stanwood, 79 Wn. App. 313, 318 n.2, 901 P.2d 1065 (1995) (quoting 1 William H. Rodgers, Environmental Law § 2.2, at 33 (1986)). ¶13 Washington’s law of nuisance is codified in

chapter 7.48 RCW. Nuisance is broadly defined as “unlawfully doing

an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others ... or in any way renders other persons insecure in life, or in the use of property.” RCW 7.48.120. ¶14 A nuisance “which affects equally the rights of an entire community or neighborhood” is a public nuisance. RCW 7.48.130. Among the enumerated public nuisances is “[t]o obstruct or impede, without legal authority, the passage of any river, harbor, or collection of water.” RCW 7.48.140(3).

Any nuisance that does not fit the statutory definition of a public nuisance is a private nuisance. RCW 7.48.150. ¶15 An actionable nuisance is “whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property.” RCW 7.48.010. Any person whose property is injuriously affected or whose personal enjoyment is lessened by a nuisance may sue for damages and for injunctive relief to abate the nuisance. RCW 7.48.020.

Public Nuisance ¶16 In her complaint, Grundy expressly bases her claim of public nuisance on assertions that Thurston County wrongfully and illegally allowed the Bracks to raise their seawall. But the trial court did not determine the legality of the exemption the county issued to the Bracks.

According to Grundy, the trial court “left the issue of the propriety or legality of the permit for determination in a damage action against the county if we chose to take that path. (Since a damage action will not redress the harm, which is a continuing nuisance in this case, we chose not to follow that course.)” Br. of Appellant at 8-9. ¶17 Thus, Grundy does not seek damages from the county for its decision to allow construction of the Bracks’ seawall. Rather, she alleges that the Bracks’ seawall is a nuisance in fact. Her property is harmed because the Bracks’ seawall is higher than her own.

The relief she seeks is abatement of the nuisance. ¶18 As the Court of Appeals noted, Thurston County is not a party to this appeal. Concerns about Grundy’s due process rights and compliance with the Land Use Petition Act necessarily implicate the county — not the Bracks. Whether the county illegally issued an administrative shoreline exemption to the Bracks was not decided by the trial court, so it is not properly before us. RAP 7.3; Kruse v. Hemp, 121 Wn.2d 715, 721, 853 P.2d 1373 (1993) (Under RAP 7.3, this court has “ ‘the authority to determine whether a matter is properly before it. . . .’ ”).

Accordingly, we do not reach the public nuisance issue. Private Nuisance and the Common Enemy Doctrine ¶19 The only issue properly before the appellate courts is Grundy’s private nuisance action against the Bracks — and whether the common enemy doctrine applies to bar that action. ¶20 The Court of Appeals held that the Bracks were “entitled to prevent damage to their property from the vagrant surface water once confined in Puget Sound, even when a neighbor may be injured by their defense.” Grundy, 116 Wn. App. at 636.

We disagree. ¶21 “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.” Currens v. Sleek, 138 Wn.2d 858, 861, 983 P.2d 626 (1999). ¶22 Washington courts first articulated the doctrine more than a century ago: “[S]urface water, caused by the falling of rain or the melting of snow, and that escaping from running streams and rivers, 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 v.

Dicks, 14 Wash. 75, 78, 44 P. 113 (1896). ¶23 As the Court of Appeals points out, the Cass court specifically mentioned seawalls: “If a land-owner whose lands are exposed to inroads of the sea, or to inundations from adjacent creeks or rivers, erects seawalls or dams, for the protection of his land, and by so doing causes the tide, the current, or the waves to flow against the land of his neighbor, and wash it away, or cover it with water, the land-owner so causing an injury to his neighbor is not responsible in damages to the latter, as he has done no wrong, having acted in self-defense, and having a right to protect his land and his crops from inundation.” 14 Wash, at 79 (quoting Edward P.

Weeks, The Doctrine of Damnum Absque Injuria Considered in Its Relation to the Law of Torts 3, 4 (1879)). The same authority is later quoted in Harvey v. Northern Pacific Railway, 63 Wash. 669, 675, 116 P. 464 (1911). But neither case concerned protection of land from the sea. Instead, the Cass and Harvey courts were presented with overflow from rivers. The mention of seawater in these cases is obiter dictum and is, therefore, not controlling. State v. Potter, 68 Wn.

App. 134, 149 n.7, 842 P.2d 481 (1992) (“Statements in a case that do not relate to an issue before the court and are unnecessary to decide the case constitute obiter dictum, and need not be followed.” (emphasis added)). ¶24 Further, we have specifically characterized surface water as follows: The chief characteristic of surface water is its inability to maintain its identity and existence as a body of water. It is thus distinguished from water flowing in its natural course or collected into and forming a definite and identifiable body, such as a lake or pond. Halverson v.

Skagit County, 139 Wn.2d 1, 15, 983 P.2d 643 (1999). Storm-driven waves in Puget Sound remain part of a definite and identifiable body of water when splashing onto waterfront property. They do not satisfy the Halverson court’s definition of surface water. ¶25 Washington courts have neither characterized storm-driven waves as surface water nor applied the common enemy doctrine to seawater. We decline to do so here. CONCLUSION ¶26 We hold that the common enemy doctrine does not apply to seawater, which does not meet our definition of surface water.

We reverse the Court of Appeals decision in its entirety and remand this matter for trial on the merits of Grundy’s private nuisance claim. Alexander, C.J., and C. Johnson, Bridge, Chambers, and Owens, JJ., concur. Madsen, J., concurs in result only. Justice Faith Ireland is serving as a justice pro tempore of the Supreme Court pursuant to Washington Constitution

article IV,

section 2(a). The Bracks originally proposed to raise their existing seawall, to backfill behind it, and to add rock seaward. Thurston County determined that raising the seawall qualified for an administrative exemption from the shoreline substantial development permitting process set out in RCW 90.58.140(2), despite the position of the Department of Ecology shoreline specialist who reviewed the project: This proposal is not exempt from shoreline permitting requirements....

In the case of a bulkhead, exemptions shall only be granted for the construction of the normal protective bulkhead common to single-family residences. The site plan shows a “future home” which leads me to believe that there is no home currently on the lot in close proximity to the area with the bulkhead, and thus no exemption for the proposal. The best protection for development is an adequate setback combined with the enhancement of native vegetation along the shoreline.

Clerk’s Papers (CP) at 262. “The County is urged to withdraw the exemption ..., combine the entire project under one proposal and put it through the shoreline permit process.” Id. at 263.

Grundy contends that seawater was not eroding the Bracks’ property: “The whole purpose of Brack’s [sic] raising the seawall was to create dry land for building sites in an area which had seasonally and harmlessly flooded as far back as anyone can remember, but always drained away when the storms subsided.” Pet’r’s Resp. to Amici Walker et al., at 2. “The Court granted judgment for the Bracks to have the sea wall, however, the Court denied

summary judgment to Thurston County as to whether or not the permit is illegal.” CP at 369. Grundy brought a second cause of action against the Bracks, alleging they illegally filled the lots next to her property with contaminated soils. This cause of action was also dismissed, and it was not pursued on appeal. Grundy voluntarily nonsuited her third cause of action, which alleged illegal gating of public access, after the Bracks removed the gate that prevented vehicles from using a long established turnaround.

In its order dismissing the third cause of action, the trial court stated: “This dismissal constitutes a final adjudication for purposes of appeal.” CP at 385. The Court of Appeals would foreclose Grundy’s public nuisance claim because “[n]othing which is done or maintained under the express authority of a statute, can be deemed a nuisance.” RCW 7.48.160. But a lawful action may still be a nuisance: When a nuisance actually exists, it is not excused by the fact that it arises from a business or erection which is of itself lawful; and, even though

an act or a structure was lawful when made or erected, if for any reason it later becomes or causes a nuisance, the legitimate character of its origin does not justify its continuance as a nuisance. 66 C.J.S. Nuisances § 15, at 551-52 (1998) (footnote omitted). “[A] ‘fair test as to whether a business lawful in itself, or a particular use of property, constitutes a nuisance, is the reasonableness or unreasonableness of conducting the business or making the use of the property complained of in the particular locality and in the manner and under the circumstances of the case.’ ” Powell v.

Superior Portland Cement, 15 Wn.2d 14, 19, 129 P.2d 536 (1942) (quoting 46 C.J.S. Nuisances § 20 (1928)). “The fact a governmental authority tolerates a nuisance is not a defense if the nuisance injures adjoining property.” Tiegs v. Watts, 135 Wn.2d 1, 15, 954 P.2d 877 (1998). “At oral argument, Grundy’s counsel explained that she does not seek anything but the abatement of the nuisance, namely, the removal of the heightened portion of the sea wall.” Grundy, 116 Wn. App. at 629 n.5. The Court of Appeals neglected to address the limits on the common enemy doctrine that have been judicially created since 1896.

Courts have developed exceptions to the common enemy doctrine because its strict application may be inequitable. Currens v. Sleek, 138 Wn.2d 858, 861-62, 983 P.2d 626 (1999). For example, one exception prohibits landowners from artificially channeling and discharging surface water onto their neighbors’ land in quantities greater than or in a manner different from its natural flow. Id. at 862.

In addition, the Currens court held: “[U]nder our common enemy jurisprudence, landowners who alter the flow of surface water on their property must exercise their rights with due care by acting in good faith and by avoiding unnecessary damage to the property of others.” Id. at 865. Geologist J.W. Johannessen stated: “After the bulkhead at the point was raised, waves that may be present at the time of very high water events would force marine water onto the Grundy yard at the time of overtopping.

It therefore appears that the raising of the bulkhead at the point has acted to increase the amount of coastal flooding at the Grundy property.” CP 273. This unrebutted expert testimony, along with Grundy’s declaration, creates an issue of material fact as to whether the Bracks’ raised seawall substantially and unreasonably interferes with Grundy’s use and enjoyment of her property.