## Facts

- Cal and Elsa Currens owned downhill property in Clark County, Washington, adjacent to Irene Sleek’s higher-elevation land that naturally drained toward the Currenses’ parcel.
- Water from Sleek’s land naturally drained into a forested, low-lying sink area on the Currenses’ property.
- Sleek planned to develop four home sites and submitted a SEPA environmental checklist stating she would plant trees and install dry wells to reduce stormwater impacts.
- In 1994, Dennis Stephenson Logging clear-cut and graded Sleek’s property.
- No revegetation occurred and no dry wells were installed after the logging and grading.
- In 1995, the sink area on the Currenses’ property flooded; 11 trees fell, and the Currenses removed about 20 additional trees for safety.
- The Currenses’ engineer concluded the logging and grading substantially increased stormwater volume and peak flow onto their property, estimating about triple runoff in large storms and about twelve times runoff in ordinary storms.

## Issues

1. Whether Washington’s common enemy doctrine provides absolute immunity to an upper landowner for increased surface-water runoff onto a neighbor’s land after clear-cutting and grading.
2. Whether the common enemy doctrine is limited by a due-care requirement that prohibits unnecessary injury to adjoining property.

## Decision

- The Washington Supreme Court reversed summary judgment for Sleek and the logging defendants.
- The court held the common enemy doctrine shields a landowner only if the landowner exercises due care to prevent unnecessary injury to neighboring property.
- The court found a genuine issue of material fact on due care, including evidence Sleek did not implement mitigation measures described in her environmental checklist.
- The case was remanded for further proceedings on the Currenses’ claims.

## Legal Principles

- In Washington, the common enemy doctrine permits landowners to protect their property from surface water, but the privilege is qualified.
- A landowner is shielded from liability for surface-water flooding only when exercising due care, acting in good faith, and avoiding unnecessary injury to neighboring property.
- Evidence of a landowner’s proposed stormwater mitigation measures, and failure to implement them, can support a finding of lack of due care.
- Summary judgment is improper when reasonable factfinders could differ on whether the landowner exercised due care under the doctrine.

## Conclusion

Washington reaffirmed the common enemy doctrine but limited it by requiring due care to prevent unnecessary harm; because the record supported a triable dispute over whether the upper landowner’s clear-cutting and grading unreasonably increased runoff without promised mitigation, summary judgment was reversed and the claims were reinstated.


Currens v. Sleek, 983 P.2d 626 (Wash. 1999)