David GIBSON, Trustee of the David Gibson Trust u/a/dated December 21, 2004; and Valerie M. Gibson, Trustee of the Valerie M. Gibson Trust u/a/dated December 21, 2004, Plaintiffs-Appellants,
William M. MORRIS and Karen L. Morris, Co-Trustees of the William M. Morris Lifetime Trust dated January 5, 1994, and the Karen L. Morris Lifetime Trust dated January 5, 1994, Defendants-Respondents
Argued and Submitted April 8, 2014.
Clackamas County Circuit Court. LV11070743. Jeffrey S. Jones, Judge.
John M. Berman argued the cause and filed the briefs for appellants.
Steven C. Burke argued the cause for respondents. With him on the brief was Case & Dusterhoff, LLP.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[270 Or.App. 610] SERCOMBE, P. J.
In this action for trespass and nuisance, plaintiffs alleged that, when defendants, owners of neighboring upslope property, replaced their septic system, they caused water to intrude onto plaintiffs' property in a greater quantity, and at a different location, than water had historically drained. Specifically, plaintiffs claimed that defendants' " groundwater interceptor" --a long, narrow, and deep trench that collected water and sent it through a pipe that exited downslope from the septic system--collected surface and groundwater on defendants' property and diverted it directly onto plaintiffs' property. After a bench trial, the court found that the groundwater interceptor had, in fact, improperly collected and diverted water onto plaintiffs' property. Nevertheless, the trial court held that plaintiffs' trespass and nuisance claims failed because plaintiffs had not shown that defendants' actions were either intentional or negligent. That is, the trial court found that defendants did not know, and acted reasonably in not discovering, that the groundwater interceptor caused water to improperly intrude onto plaintiffs' property--either when the system was first installed or when plaintiffs complained to defendants about water coming onto their property. On appeal, plaintiffs assert that the trial court erred in making that [270 Or.App. 611] finding because the only factual determination supported by the evidence is that defendants knew or should have known that their groundwater interceptor would divert or was diverting water onto plaintiffs' property. For the reasons below, we reject that argument and, accordingly, affirm.
We state the facts consistently with the trial court's findings and in the light most favorable to defendants, who prevailed at trial. Sutherlin School Dist. #130 v. Herrera, 120 Or.App. 86, 91, 851 P.2d 1171 (1993). Defendants have lived in a home on their property for several decades. Their property is to the north of plaintiffs' property, and water in their backyard naturally travels on a southeastern path along a slope toward plaintiffs' property. In 2007, the septic system in defendants' backyard failed, and they contracted with an installer to replace it. As part of the permitting process for the replacement, a soil scientist from Clackamas County evaluated the backyard soil and issued a report specifying the general type of septic system to be installed and where it should be placed based on " test pits" dug in the backyard.
The county also required the installation of a " groundwater interceptor" to protect the drainage field where water exited the septic
system. The groundwater interceptor--a narrow, deep, and long trench built upslope from that drainage field--diverted surface water and groundwater around the drainage field, ensuring that the soil in the field could absorb water from the septic system. As built, the interceptor trench on defendants' property was three feet deep, one foot wide, and filled with gravel; it extended 70 feet upslope of the drainage field. A perforated four-inch pipe running along the bottom of the trench collected water and took it to a solid four-inch pipe that ran underground down the slope, for about 100 feet, until it met daylight. The above-ground point where the pipe released water was about 36 feet from plaintiffs' property.
Sometime after defendants installed the groundwater interceptor, plaintiffs noticed that the edge of their property bordering defendants' property was quite muddy and soggy. They had noticed that the property was muddy [270 Or.App. 612] before, and, in 2001, built a six-inch-deep trench along the property line that would fill with about four inches of water from time to time. As of 2007, however, plaintiffs observed " a significant increase in the amount of water that was coming off of [defendants' property]." After deepening the ditch to address the water, in 2010, plaintiffs built a French drain that drained to a creek on their property.
In November 2010, plaintiffs sent defendants a letter, stating that they had " noticed an extremely large amount of water flowing from" defendants' property to plaintiffs' property. The letter identified the groundwater interceptor as the cause, though it also asserted that defendants had " connected a [12-inch] concrete drain pipe to the culvert running under [the road in front of defendants' house], extending [100 feet] to an open ditch on the west side of [defendants'] property where it flows south onto [plaintiffs'] property." Plaintiffs " demand[ed] that within 30 days of the date of this letter, you ...