Eliodoro Cuevas Lopez v. Columbia Irrigation District

• Court: Court of Appeals of Washington
• Decided: July 16, 2024
• Docket: 39848-0
• Status: Unpublished

Opinion

FILED JULY 16, 2024 In the Office of the Clerk of Court WA State Court of Appeals Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

ELIODORO CUEVAS LOPEZ, a single ) man; VICTOR CUEVAS, a single man; ) No. 39848-0-III JOSE CUEVAS, a single man, ) ) Appellants, ) ) v. ) UNPUBLISHED OPINION ) COLUMBIA IRRIGATION DISTRICT, ) a municipal corporation, ) ) Respondent. )

COONEY, J. — Eliodoro Cuevas Lopez and his two sons (collectively Mr. Lopez)

purchased 50 acres of property in Benton County in 2013. The Columbia Irrigation

District (CID) owns and operates an irrigation canal that borders a portion of Mr. Lopez’s

property. In 2015, Mr. Lopez removed many of the Russian olive trees that existed on

his property. Sometime thereafter, he filed suit against CID claiming that leaks in its

irrigation canal caused a portion of his property to become saturated, rendering it

unusable. Mr. Lopez’s claims were for negligence, trespass, nuisance, and

unconstitutional taking. CID brought a motion for summary judgment dismissal of Mr.

Lopez’s claims that was granted by the trial court. Mr. Lopez appeals. We affirm. No. 39848-0-III Lopez, et al. v. Columbia Irrig. Dist.

BACKGROUND

Mr. Lopez purchased approximately 50 acres of property in Benton County in

2013. The CID owns and operates an irrigation canal that borders a portion of Mr.

Lopez’s property. This canal has existed since at least 1920. The portion of the canal

that borders Mr. Lopez’s property is unlined.

When Mr. Lopez purchased the property, a large portion of the land contained an

abundance of Russian olive trees. Sometime in 2015, Mr. Lopez removed many of these

trees because he wanted to “work the land.” Clerk’s Papers (CP) at 242.

In 2021, Mr. Lopez brought suit against CID claiming that his property had

“become a swamp because of the leaks and failure to properly maintain the canal and

control the water.” CP at 2. In his complaint, Mr. Lopez alleged that CID “is liable for

damages to [Mr. Lopez] on the basis of negligence, trespass, nuisance, and an

unconstitutional taking.” Id.

CID filed a motion for summary judgment dismissal of Mr. Lopez’s claims. CID

argued the subsequent purchaser rule barred Mr. Lopez’s takings claim, and that there

was no evidence that the “water issue on” Mr. Lopez’s property was caused by the

negligence of CID, which in turn barred his negligence, trespass, and nuisance claims.

CP at 329.

To support its motion, CID filed a declaration of its expert witness, Paul Cross, a

civil engineer. Mr. Cross opined that though the canal does seep water, some of the

2 No. 39848-0-III Lopez, et al. v. Columbia Irrig. Dist.

water on Mr. Lopez’s property is “natural ground and surface water” that would exist

even if the “CID canal was not there.” CP at 327-28. He also stated that “[i]t is apparent

from my examination of the canal and CID’s records that the seepage characteristics of

the canal have been the same for many years, certainly since before 2013, when I

understand [Mr. Lopez] to have purchased the property.” CP at 329. Mr. Cross declared

that “[R]ussian olives serve to absorb or soak up much of the groundwater on the west

portion of the property” and he therefore opined the removal of the Russian olive trees

resulted in the “presence of more ground and surface water on that portion of the

property.” CP at 328.

Additionally, Bob Ingraham, an employee of CID since 1999, filed a declaration

in which he stated that he was “aware that some water does seep from the canal.” CP at

336. However, he declared “there have been no changes to [the] section of canal

[bordering Mr. Lopez’s property] since I started work for CID in 1999, that would in any

way increase the amount of water that seeps from the canal.” Id. He also stated, based

on his observations, that the only thing that had changed since 1999 was the “clearcutting

of the [R]ussian olive trees in 2015,” which seemed to “increase[ ] the ground and surface

water on [Mr. Lopez’s] property.” Id.

Mr. Lopez opposed CID’s motion and filed a declaration of his own expert

witness, Michael Black, a professional engineer. Mr. Black declared that “[t]he CID

canal leaks substantial water and saturates the soil over a significant portion of [Mr.

3 No. 39848-0-III Lopez, et al. v. Columbia Irrig. Dist.

Lopez’s] property. In some cases” flooding it. CP at 358. Mr. Black opined that “the

substantial cause of the soil saturation/flooding” was due to the CID’s canal. CP at 358.

Mr. Black concluded that, in his opinion, the CID canal “is substantially or totally

impacting groundwater flow, soil saturation, and seep runoff” onto Mr. Lopez’s property.

CP at 377.

CID brought a motion to strike Mr. Black’s declaration, arguing that he was not

qualified to express an opinion on negligence for the construction, operation, or

maintenance of the canal and that his declaration was conclusory. The trial court’s ruling

on this motion was unclear, but the court described Mr. Black’s declaration as

“conclusory” and “not based on any facts.” Rep. of Proc. (RP) at 70.

Ultimately, the trial court granted CID’s motion for summary judgment, thereby

dismissing Mr. Lopez’s claims for nuisance, trespass, negligence, and unconstitutional

taking. Thereafter, Mr. Lopez brought a motion for reconsideration that was denied.

The parties then stipulated to dismiss “all other claims and counterclaims” without

prejudice to allow Mr. Lopez to appeal. CP at 508-09. Mr. Lopez timely appeals.

ANALYSIS

On appeal, Mr. Lopez argues his negligence claim was improperly dismissed on

summary judgment. CID responds that Mr. Lopez’s negligence claim, as well as his

other tort claims, were properly dismissed because the subsequent purchaser rule bars his

takings claim, which in turn bars his tort claims. We agree with CID.

4 No. 39848-0-III Lopez, et al. v. Columbia Irrig. Dist.

We review orders on summary judgment de novo. Keck v. Collins, 184 Wn.2d

358, 370, 357 P.3d 1080 (2015). Summary judgment is only appropriate if there are no

genuine issues of material fact and the moving party is entitled to judgment as a matter of

law. Id.; CR 56(c). The moving party bears the initial burden of establishing that there

are no disputed issues of material fact. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225,

770 P.2d 182 (1989). “A material fact is one upon which the outcome of the litigation

depends in whole or in part.” Atherton Condo. Apartment-Owners Ass’n Bd. of Dirs. v.

Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990).

When considering a motion for summary judgment, evidence is considered in a

light most favorable to the nonmoving party, here, Mr. Lopez. Keck, 184 Wn.2d at 370.

If the moving party satisfies its burden, then the burden shifts to the nonmoving party to

establish there is a genuine issue for the trier of fact. Young, 112 Wn.2d at 225-26.

While questions of fact typically are left to the trial process, they may be treated as a

matter of law if “reasonable minds could reach but one conclusion.” Hartley v. State, 103

Wn.2d 768, 775, 698 P.2d 77 (1985).

A nonmoving party may not rely on speculation or having its own affidavits

accepted at face value. Seven Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1, 13,

721 P.2d 1 (1986). Instead, a nonmoving party must put “forth specific facts that

sufficiently rebut the moving party’s contentions and disclose that a genuine issue as to a

material fact exists.” Id.

5 No. 39848-0-III Lopez, et al. v. Columbia Irrig. Dist.

Mr. Lopez argues that the court erroneously dismissed his negligence claim on

summary judgment.1 He argues that the trial court ignored his expert’s opinion and

improperly construed the facts in a light most favorable to CID, the moving party. CID

responds that the subsequent purchaser rule bars Mr. Lopez’s takings claim and because

the takings claim is barred, his common law tort claims are also barred. Thus, CID

contends that summary judgment dismissal of Mr. Lopez’s claims was proper. We agree

with CID.

TAKINGS CLAIM AND SUBSEQUENT PURCHASER RULE

In his complaint, Mr. Lopez alleged that CID “is liable for damages to [Mr.

Lopez] on the basis of negligence, trespass, nuisance, and an unconstitutional taking.”

CP at 2 (emphasis added).

CID claims that the subsequent purchaser rule bars Mr. Lopez’s constitutional

takings claim which, in turn, bars his common law tort claims. As a threshold issue, on

reply, Mr. Lopez argues the subsequent purchaser rule was raised for the first time on

appeal and should not be addressed. Reply Br. of Appellants at 8; RAP 2.5(a). Mr.

Lopez is incorrect.2 CID explicitly argued that the subsequent purchaser rule barred Mr.

1 Though the court also dismissed his nuisance, trespass, and constitutional takings claims, Mr. Lopez argues in his brief only that his negligence claim should not have been dismissed on summary judgment. 2 Mr. Lopez also argues that “[n]owhere in the answer does the CID allege as an affirmative defense that the claim is barred by the ‘Subsequent Purchaser Rule.’” Reply Br. of Appellants at 5. However, “the subsequent purchaser rule is not a defense and is

6 No. 39848-0-III Lopez, et al. v. Columbia Irrig. Dist.

Lopez’s constitutional claim in its motion for summary judgment below, and again

during argument on the motion.

The government may not take or damage one’s private property for public use

without just compensation. WASH. CONST. art. I, § 16. “An inverse condemnation action

seeks to recover the value of property affected by a governmental taking or damaging that

occurred without a formal exercise of the power of eminent domain.” Maslonka v. Pub.

Util. Dist. No. 1 of Pend Oreille County, 1 Wn.3d 815, 825, 533 P.3d 400 (2023) (citing

Dickgieser v. State, 153 Wn.2d 530, 534-35, 105 P.3d 26 (2005)). In order to prevail on

an inverse condemnation claim, the claimant must show there has been “(1) a taking or

damaging (2) of private property (3) for public use (4) without just compensation being

paid (5) by a governmental entity that has not instituted formal proceedings.” Fitzpatrick

v. Okanogan County, 169 Wn.2d 598, 605-06, 238 P.3d 1129 (2010).

Not every landowner can recover for damages caused by governmental conduct by

way of an inverse condemnation action. Maslonka, 1 Wn.3d at 825. “The subsequent

purchaser rule prohibits landowners from suing for property damage caused by

governmental conduct that occurred prior to their ownership” of the property. Id. A new

taking occurs when additional governmental action causes a measurable decline in the

market value of affected property. Id. at 828. However, when governmental action

instead a doctrine of standing.” Maslonka v. Pub. Util. Dist. No. 1 of Pend Oreille County, 1 Wn.3d 815, 826, 533 P.3d 400 (2023).

7 No. 39848-0-III Lopez, et al. v. Columbia Irrig. Dist.

causes known flooding prior to a landowner’s acquisition of the property, a new cause of

action does not arise with each flood absent additional governmental action. Id. at 828-

29. Thus, to defeat summary judgment, Mr. Lopez must have demonstrated that a new

governmental action or taking occurred following his acquisition of the property. Id. at

828.

Mr. Lopez failed to demonstrate that there was a genuine issue of material fact

related to whether a new governmental action or taking occurred after his purchase of the

property. Thus, his takings claim is barred by the subsequent purchaser rule.

On summary judgment, CID submitted a declaration from their expert, Mr. Cross,

in which he stated: “It is apparent from my examination of the canal and CID’s records

that the seepage characteristics of the canal have been the same for many years, certainly

since before 2013, when I understand [Mr. Lopez] to have purchased the property.” CP

at 329. He also declared the removal of the Russian olive trees, which Mr. Lopez

testified occurred in 2015, resulted in the “presence of more ground and surface water on

that portion of the property.” CP at 328. CID also produced a declaration from Mr.

Ingraham in which he declared there had been no changes to the CID canal since he

began working for CID in 1999 that in any way increased the amount of water that seeps

from it.

In response, Mr. Lopez submitted a declaration from his expert, Mr. Black, but it

failed to establish a genuine issue of material fact. First, following CID’s motion to

8 No. 39848-0-III Lopez, et al. v. Columbia Irrig. Dist.

strike, it is unclear whether the trial court even considered the declaration. Indeed, the

trial court noted that Mr. Black’s declaration was “conclusory” and “not based on any

facts.” RP at 70.

However, even if Mr. Black’s declaration was considered, nothing in it or in his

attached report rebutted CID’s evidence that the seepage was occurring at the same rate

prior to Mr. Lopez’s purchase of the property. Instead, Mr. Black simply concluded that

the CID’s canal “is substantially or totally impacting groundwater flow, soil saturation,

and seep runoff” onto Mr. Lopez’s property. CP at 377. This conclusion was insufficient

to rebut Mr. Cross’s opinion that the seepage rate remained the same before and after Mr.

Lopez’s purchase of the property.

Thus, Mr. Lopez’s takings claim was properly dismissed on summary judgment

pursuant to the subsequent purchaser rule.

TORT CLAIMS

Turning to Mr. Lopez’s common law tort claims of nuisance, trespass, and

negligence, CID argues they are all barred because his underlying takings claim is barred

by the subsequent purchaser rule. We agree.

Although a landowner could pursue tort recovery when the governmental action

does not rise to a taking, such a case could not be based on one governmental action like

continuous flooding. Maslonka, 1 Wn.3d at 832-33. In Maslonka, our Supreme Court

held that “where the subsequent purchaser rule bars their underlying takings claim” a

9 No. 39848-0-III Lopez, et al. v. Columbia Irrig. Dist.

plaintiff cannot recover “in tort for the same underlying conduct.” Id. at 833. The court

reasoned that “[i]f tort claims exist as a backup theory of recovery for otherwise barred

inverse condemnation claims, subsequent purchasers could endlessly sue governmental

entities in tort.” Id. at 833. Thus, the court held the Maslonkas “should not be permitted

to proceed in tort if they cannot prove inverse condemnation as subsequent purchasers.”

Id.

Similarly, here, Mr. Lopez’s claims all arise from the same underlying conduct⎯

the seepage of CID’s irrigation canal that runs along his property and makes some of it

unusable during certain periods of the year. Mr. Lopez cannot maintain an action in tort

for this conduct because his inverse condemnation claim is barred by the subsequent

purchaser rule. Mr. Lopez’s common law tort claims of trespass, nuisance, and

negligence were properly dismissed.

Mr. Lopez devotes almost the entirety of his briefing to his negligence claim. He

claims “when the testimony of the witnesses [is] construed most favorably to the plaintiff,

the evidence indicates a justifiable inference that the CID failed to control the water in its

canal, and permitted it to flood the property of [Mr. Lopez]. The issue of negligence is

for the jury.” Opening Br. of Appellants at 14. However, notwithstanding the

subsequent purchaser rule, Mr. Lopez failed to create a genuine issue of material fact

related to whether CID was negligent in the construction, operation, or maintenance of its

canal.

10 No. 39848-0-III Lopez, et al. v. Columbia Irrig. Dist.

“[O]ne who impounds water is bound to exercise such reasonable care and

caution in the construction, maintenance, and operation of his works as a reasonably

careful and prudent person, acquainted with the conditions, would exercise under like

circumstances.” Longmire v. Yelm Irrig. Dist., 114 Wash. 619, 620, 195 P. 1014, aff’d,

117 Wash. 702, 201 P. 788 (1921). “[The] owner of land lying below an irrigation ditch

cannot recover for damages caused by seepage without showing that the ditch was

negligently constructed or operated.” Id. at 620-21.

Mr. Lopez’s expert, Mr. Black, simply stated that “[i]t is my opinion that the

substantial cause of the soil saturation/flooding on the Eliodoro Cuevas Lopez property is

caused by the failure of CID to reasonably control its water.” CP at 358. Mr. Black’s

opinion was conclusory and did not create a genuine issue of material fact.

RES IPSA LOQUITUR

Mr. Lopez also asserts the doctrine of res ipsa loquitur applies. Again,

notwithstanding that the subsequent purchaser rule bars his negligence claim, his res ipsa

loquitur argument fails on the merits. The doctrine of res ipsa loquitur is applicable only

when the evidence shows:

(1) the accident or occurrence producing the injury is of a kind which ordinarily does not happen in the absence of someone’s negligence, (2) the injuries are caused by an agency or instrumentality within the exclusive control of the defendant, and (3) the injury-causing accident or occurrence is not due to any voluntary action or contribution on the part of the plaintiff.

11 No. 39848-0-III Lopez, et al. v. Columbia Irrig. Dist.

Zukowsky v. Brown, 79 Wn.2d 586, 593, 488 P.2d 269 (1971) (quoting Horner v. N. Pac.

Beneficial Ass’n Hosps., 62 Wn.2d 351, 359, 382 P.2d 518 (1963). First, canal seepage

can and does occur in the absence of negligence. See Longmire, 114 Wash. at 620.

Second, CID’s expert opined that, though the CID canal does seep, some of the water on

Mr. Lopez’s property there is “natural ground and surface water” that would exist even if

the “CID canal was not there.” CP at 328. Mr. Black’s opinion was that “the substantial

cause of the soil saturation/flooding” was due to CID’s canal. Id. (emphasis added).

Thus, the alleged injury (the water on Mr. Lopez’s property) is not in the exclusive

control of CID. For these reasons alone, the doctrine of res ipsa loquitur is inapplicable.

We affirm the trial court’s dismissal of Mr. Lopez’s claims.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

Cooney, J. WE CONCUR:

Lawrence-Berrey, C.J. Staab, J.