Pedersen v. Department of Transportation

717 P.2d 773, 43 Wash. App. 413
CourtCourt of Appeals of Washington
DecidedApril 14, 1986
Docket13467-1-I
StatusPublished
Cited by11 cases

This text of 717 P.2d 773 (Pedersen v. Department of Transportation) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pedersen v. Department of Transportation, 717 P.2d 773, 43 Wash. App. 413 (Wash. Ct. App. 1986).

Opinions

Swanson, J.

The appellants, who are owners of property on Arrow Lake in south King County, appeal a judgment awarding a prescriptive easement to the City of Normandy Park and the Washington State Department of Transportation (State) to pump drainage waters into the lake.

The appellant property owners contend that prior pump[415]*415ing by the City and State was permissive and therefore not adverse. In addition, the appellants contend that the trial court erred in imputing community knowledge of the 1961 drainage system to plaintiffs, who are all successors in interest to a common grantor.

This appeal constitutes the second stage of an action that began in April 1978. The plaintiffs (referred to hereinafter as Pedersen, the sole plaintiff to testify at trial) are all owners of property on Arrow Lake, which is located in south King County in the city of Normandy Park. Arrow Lake, which is privately owned, lies several blocks to the northwest of the intersection of 1st Avenue South (SR 509) and S.W. 200th. This intersection, which is within the general drainage basin of Arrow Lake, is located in a small depression that would not drain naturally into the lake. In the late 1950's this intersection became subject to increased flooding, a problem exacerbated in part by growing development in the area.

In late 1961 and early 1962, the State and the City constructed a pumping system (1961 pumping system) near the intersection. The system, which consisted of a series of catch basins that channeled water to a buried concrete cistern, pumped water north through an underground pipe along 1st Ave. S. for several blocks, where it then connected with a cross culvert. This cross culvert conveys drainage waters from the east side of 1st Ave. S. and was the subject of a 1953 easement for this purpose granted to developers by the appellants' predecessor in interest, William H. Albright. From this connection, which is where the 1961 system ends, the water travels northwesterly, passing through an open ditch for several hundred yards and then into another culvert before emptying into Arrow Lake. The 1961 pumping system operated as needed until 1978.

The appellants are all successors in interest to William H. Albright, who purchased the lake and surrounding property in the late 1940's. At that time, the lake was more like a bog, and Albright, during the 1950's, excavated and sold peat from the lake bed with the intention of eventually [416]*416developing the property. After various excavations and fillings that changed the level and character of the lake, Albright subdivided and platted the lake and surrounding property in 1966 and began selling lots. Albright continued to live on the lake and sold his last lot in 1976. He died before trial began.

The appellants first raised public objections to the pumping at a July 12, 1973 city council meeting. In 1978, just prior to completion of a new holding pond and pumping system that was to replace the 1961 system, the appellants filed suit, alleging, among other things, that the old and new systems constituted an illegal diversion of water and that both systems illegally used the 1953 private easement. Damages in inverse condemnation were also sought. The complaint was later amended to include three additional allegations, including failure to obtain a National Pollutant Discharge Elimination System (NPDES) permit. In December 1978 the City's motion for summary judgment on the three additional allegations was granted. On appeal, this court reversed on the issue of the NPDES permit. Pedersen v. Department of Transp., 25 Wn. App. 781, 611 P.2d 1293 (1980). In September 1982 an order was issued enjoining any further pumping until an NPDES permit was obtained. An order bifurcating the inverse condemnation claim was issued in December 1982.

The original claims of illegal diversion and unauthorized use of a private easement went to trial in April 1983. On May 10, 1983, the trial court handed down its oral opinion. The court found that the pumping constituted an illegal diversion of water, but concluded that the State and the City had established the elements of a prescriptive easement to pump water into Arrow Lake. The court found that Albright and his successors had never consented to the pumping and that the easement came into existence at the latest by 1974, 10 years after Albright wrote a letter indicating his actual knowledge of the pumping system. The claim for inverse condemnation was then dismissed.

Pedersen's first contention is that the trial court [417]*417erred in finding that the pumping of drainage water into Arrow Lake was adverse and not permissive. An appellate court will not substitute its judgment for that of the trial court if the findings below are supported by substantial evidence. Park v. Ross Edwards, Inc., 41 Wn. App. 833, 835, 706 P.2d 1097 (1985). Substantial evidence is evidence "of sufficient quantum to persuade a fair-minded person of the truth of the declared premise." Brown v. Safeway Stores, Inc., 94 Wn.2d 359, 373, 617 P.2d 704 (1980).

Although prescriptive rights are not favored in law, a claimant can establish a prescriptive easement upon proof of: (1) use adverse to the right of the servient owner; (2) open, notorious, continuous, and uninterrupted use for the entire prescriptive period; and (3) knowledge of such use at a time when the owner was able to assert and enforce his or her rights. Bradley v. American Smelting & Ref. Co., 104 Wn.2d 677, 694, 709 P.2d 782 (1985); Dunbar v. Heinrich, 95 Wn.2d 20, 22, 622 P.2d 812 (1980).

The adverse use required to establish a prescriptive easement

is such use of property as the owner himself would exercise, entirely disregarding the claims of others, asking permission from no one, and using the property under a claim of right.

Malnati v. Ramstead, 50 Wn.2d 105, 108, 309 P.2d 754 (1957).

Proof of element (2), that the use was open, notorious, and continuous, establishes a presumption that the use was adverse, a presumption that can be rebutted by showing that the use was permissive. Northwest Cities Gas Co., v. Western Fuel Co., 13 Wn.2d 75, 85, 123 P.2d 771 (1942). The question of adverse user is one of fact. Northwest Cities Gas Co., at 84.

Pedersen asserts that the State's and City's use of the drainage easement was permissive,1 that Albright acted out [418]*418of neighborly accommodation, and that the use therefore could never ripen into a prescriptive right. The trial court, however, found:

no evidence that the defendants' use was permissive. Indeed, the circumstances surrounding the defendants' use, together with Mr.

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Pedersen v. Department of Transportation
717 P.2d 773 (Court of Appeals of Washington, 1986)

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Bluebook (online)
717 P.2d 773, 43 Wash. App. 413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pedersen-v-department-of-transportation-washctapp-1986.