Miotke v. City of Spokane

Dore, J.

(concurring in part, dissenting in part) — I con *344 cur in the result reached by the majority but would modify the attorney fees award. However, I would affirm judgment for damages under eminent domain as I find the majority's application of nuisance theory inappropriate. I dissent from award of attorney fees for services limited to the injunctive phase of the trial. In upholding the main action on eminent domain, plaintiffs are entitled to reasonable attorney fees for all legal services rendered during the trial.

I

The recovery under eminent domain is justified as a result of the governmental entities taking or damaging the plaintiffs' property without just compensation.

Const, art. 1, § 16 (amend. 9) provides:

No private property shall be taken or damaged for public . . . use without just compensation having been first made . . .

It is a long-established principle that the discharge of sewage or the pollution of water to the injury of an individual is compensable under eminent domain provisions. Walla Walla v. Conkey, 6 Wn. App. 6 , 492 P.2d 589 (1971), review denied, 80 Wn.2d 1007 (1972); Snavely v. Goldendale, 10 Wn.2d 453 , 117 P.2d 221 (1941); Crane v. Brintnall, 29 Ohio Misc. 75 , 278 N.E.2d 703 (1972); Krambeck v. Gretna, 198 Neb. 608 , 254 N.W.2d 691 (1977); Game & Fish Comm'n v. Farmers Irrig. Co., 162 Colo. 301 , 426 P.2d 562 (1967); Amador Vly. Investors v. Livermore, 43 Cal. App. 3d 483 , 117 Cal. Rptr. 749 (1974); see also W. Stoebuck, Nontrespassory Takings in Washington (1980).

The fact that the governmental body may also be subject to a tort action for nuisance does not preclude it from liability for a taking under eminent domain theory. In Snavely v. Goldendale, supra, this court indicated that while polluting a stream is generally held to be tortious, it may assume the character of a taking or damaging of property in contemplation of the constitutional guaranty when a municipal corporation does it on such a scale as to create a public nuisance. Snavely , at 455-56; accord, Walla Walla v. *345 Conkey, supra at 11 . The Suavely court held that the plaintiff's action lay in eminent domain, for the action could not have been supported on nuisance theory for failure to comply with the nonclaims statute.

In a decision quite similar to the instant action, the Supreme Court of New Hampshire held in Sundell v. New London, 119 N.H. 839 , 409 A.2d 1315 (1979) that the landowners could recover damages in either nuisance or inverse condemnation. The court held that where, as littoral owners, plaintiffs who brought action against a town which operated a sewage treatment plant which discharged nutrient-laden effluent into a brook, a tributary of a lake, had rights below the highwater line in front of their property to use waters for "a panoply of recreational activities," and a town's effluent-spawned algae invaded these water spaces causing substantial interference with plaintiffs' use of this space for bathing, swimming, boating and other recreational purposes, there had been sufficient physical invasion of plaintiffs' property to constitute inverse condemnation. The court indicated that the facts necessary to entitle the plaintiffs to a judgment on the nuisance count would also support a judgment on the inverse condemnation count. Accord, Duffield v. DeKalb Cy., 242 Ga. 432 , 249 S.E.2d 235 (1978); Omaha v. Matthews, 197 Neb. 323 , 248 N.W.2d 761 (1977).

As the Suavely case indicates, in many instances an owner who has suffered a "taking" or "damaging" by reason of water pollution may also claim damages on a tort-nuisance theory. However, RCW 7.48.160 provides that nothing which is done or maintained under the express authority of a statute can be deemed a nuisance. See Deaconess Hosp. v. State Hwy. Comm'n, 66 Wn.2d 378 , 403 P.2d 54 (1965). Yet, if a taking theory is available, it is not susceptible to this defense. See Steele v. Queen City Broadcasting Co., 54 Wn.2d 402 , 341 P.2d 499 (1959).

Though our previous decisions indicate that a nuisance can assume the character of a taking, this language equates nuisance with takings only on the factual level. A court *346 applying eminent domain theory simply determines if the riparian owner's use of his property is unreasonably impaired and if the impairment was caused by activity of a governmental entity. If so, a taking has occurred. The plaintiffs, in order to succeed on their eminent domain theory, need not establish that the sewage discharge was tor-tious.

The majority opinion goes to great lengths to establish that the sewage discharge was tortious or, in other words, done without authority of statute. The majority finds that although the discharge was in compliance with the applicable water quality criteria, it was wrongful because the discharge violated the terms of the waste disposal permit.

Although the majority concedes that the water pollution control act, RCW 90.48, does not provide for a private cause of action for violations of waste discharge permit requirements, the majority nevertheless concludes that the discharge of sewage in violation of the discharge permit constitutes a nuisance. However, it is not the violation of the permit requirements that is the proximate cause of plaintiffs' injuries, but the actual discharge of the sewage that proximately caused the damage to plaintiffs' property. The Department of Ecology, and the City of Spokane acting upon its directives, was of the opinion that their actions were in compliance with the applicable environmental laws. The majority finds that this was not the case because the procedures of the water pollution control act not only require a lowering of the water quality criteria, but issuance of a new or amended discharge permit in order that the City could legally discharge the sewage into the river.

The majority's holding is based upon the mere fortuitous circumstance that a new discharge permit was not issued in conjunction with the temporary lowering of the water quality criteria. The clear implication of the majority opinion is that the property owners would be without a cause of action if the City had obtained a new discharge permit even though the end result would have been the same. There is no evidence in the record that procedural compliance would *347 have averted the damages to the property owners. At most, the property owners would have had advance notice of the pending discharge and an opportunity to express their concerns. We cannot say, either legally or factually, that plaintiffs' injuries would have been avoided if the City had applied for a new discharge permit and/or whether the decision to proceed would have been different. It is pure speculation, and contrary to the substantial body of evidence in the record, that the damages to plaintiffs would have been avoided had the City and Department of Ecology complied with the procedural mandate of the statute. The law is well settled that if an event would have happened regardless of defendant's wrongful conduct, the wrongful conduct is not the proximate cause of the event. Ross v. Altuater, 72 Wn.2d 63 , 431 P.2d 701 (1967); Litts v. Pierce Cy., 9 Wn. App. 843 , 515 P.2d 526 (1973). The nuisance action against the governmental entities lacks a proximate cause to show that the wrongful conduct was the legal cause of plaintiffs' injuries.

The majority opinion rejects the taking issue because the results of the discharge were temporary only. I disagree.

The constitution contains no requirement that the damage be permanent. The plain meaning of the words used in the constitution is that, if a person's property is damaged for public use, he shall be compensated, whether the damage is permanent or is temporary in nature.

Although there are some judicial pronouncements to the contrary, this court has generally held compensable damages for a temporary taking under the constitutional provision. See Northern Pac. Ry. v. Sunnyside Vly. Irrig. Dist., 85 Wn.2d 920, 925 , 540 P.2d 1387 (1975) (Rosellini, J., dissenting).

The damaging of property by a body having the power of eminent domain may be either permanent or temporary. When the injury is not permanent, the nature of damages is the costs of restoration and loss of use pending restoration. Brazil v. Auburn, 93 Wn.2d 484, 493 , 610 P.2d 909 (1980); Colella v. King Cy., 72 Wn.2d 386 , 433 P.2d 154 (1967).

*348 The record in the instant action establishes that the Department of Ecology and City of Spokane substantially interfered and deprived the plaintiffs of the use of their property through the discharge of raw sewage into the Spokane River. The damages for this temporary taking and consequential damages caused by such taking are supportable by the record.

II

RCW 8.25.075 provides that a superior court rendering a judgment for the plaintiff awarding compensation for the taking of real property for public use without just compensation having been first made to the owner shall award or allow to such plaintiff costs including reasonable attorney fees. The statute is mandatory in its terms, and entitles the plaintiffs to their attorney fees in the superior court proceeding. Brazil v. Auburn, supra at 497 .

The plaintiffs are additionally entitled attorney fees accrued in this appeal. B & W Constr., Inc. v. Lacey, 19 Wn. App. 220, 227-30 , 577 P.2d 583 (1978); Snohomish v. Joslin, 9 Wn. App. 495, 498-500 , 513 P.2d 293 (1973).

Conclusion

1.1 would affirm plaintiffs' judgment for damages based on inverse condemnation (eminent domain).

2. I would set aside the attorney fees awarded which were limited to services for injunctive relief, and remand to the trial court for the setting of reasonable attorney fees for all legal services rendered during the trial, pursuant to RCW 8.25.075.

Rosellini, J., concurs with Dore, J.

Reconsideration denied May 11, 1984.