Advocates for private property rights in Washington State rarely have reason to cheer decisions of our State Supreme Court. They have instead been met with a string of decisions such as the so-called Convention Center Case and the Sinking Ship Parking Garage Case that have brought only disappointment. Last Thursday, however, the Court gave property owners a rare cause to celebrate.
In Fitzpatrick v. Okanogan County, the Fitzpatrick family claimed that the government’s construction of dikes at side channels of the Methow River resulted in the destruction of their cabin home during a high water event. The Washington Supreme Court has ruled that the government can be held liable for damages for flooding despite two state statutes that explicitly provide immunity to government for its flood prevention efforts. In a 7-2 decision, the Supreme Court sustained the right of property owners to bring inverse condemnation claims based on the Washington State Constitutional provision that prohibits government from taking or damaging private property without just compensation. Inverse condemnation occurs when the government, without instituting formal eminent domain proceedings, takes or damages private property for public use. The Court also held that the “common enemy doctrine” does not bar inverse condemnation claims for damage to property caused by the government’s diversion of water by blocking access to the natural flood-relief side channels of a natural watercourse.