In a recent unpublished opinion, the Washington Court of Appeals affirmed a trial court's dismissal of a property owner's intentional water trespass claim against neighboring property owners. The plaintiff owned a residential lot in Spokane situated at the bottom of a v-shaped drainage basin. Before 2009, she experienced no drainage problems. In September of 2009, the Qualchan Hills HOA authorized construction of a concrete extension, which greatly increased drainage onto her lot, overburdened her small drainage pond, and caused flooding. The plaintiff sued the Qualchan Hills HOA and most of the uphill property owners.
The HOA entered into binding arbitration with regard to this dispute, and the Court noted that periodic flooding caused by the defective design or modification of a drainage system can constitute a continuing trespass. However, the Court went on to hold that the neighboring property owners' passive usage of the water system at issue did not support an intentional trespass claim against them. The Court pointed out that its 2013 opinion Jackass Mtn. Ranch, Inc. v. S. Columbia Basin Irr. Dist. upheld the dismissal of an intentional trespass claim against the operator of an irrigation system that created a landslide because no evidence existed the operator knew that the system would cause such a slide.