WORSWICK, C.J.
¶ 1 In this class action lawsuit for property damage caused by increased water flow, the City of Tacoma makes an interlocutory appeal of the superior court's two rulings on cross summary judgment motions. The first ruling granted a motion for partial summary judgment that served to strike one of Tacoma's affirmative defenses against the claims of Gerald Richert and the members of his class involved in this appeal (the Richerts). The second ruling denied Tacoma's motion for summary judgment for dismissal of the Richerts' claims. The superior court's two rulings summarily determined one limited legal issue in favor of the Richerts: City of Tacoma v. Funk, No. 1651 (Mason County Super. Ct., Sept. 11, 1920) — a 1920 condemnation action in which Tacoma condemned the Richerts' riparian and water rights so as to allow Tacoma to build two dams on the Skokomish River — did not preclude the Richerts' claims for flood and groundwater damage
¶ 2 The Skokomish River's main stem is fed by three tributaries: the North Fork, the South Fork, and Vance Creek. Water flows through the main stem and into the Hood Canal.
¶ 3 Tacoma has operated two dams on the North Fork of the Skokomish River since 1926. These dams today operate under Federal Energy Regulatory Commission (FERC) licenses. Tacoma's dams prevent most of the North Fork's water from flowing to the main stem. Prior to the existence of Tacoma's dams, the North Fork contributed 800 cubic feet per second (cfs) of water to the main stem, which was one third of the main stem's water.
¶ 4 In 1923, Tacoma condemned the property rights that the dams' construction and operation would damage in Funk. The Funk condemnation action condemned the property rights of over 80 parcels of real property. In Funk, Tacoma condemned the property rights of two different parcel types, depending on how much damage the dams would cause the parcels.
¶ 5 First, Tacoma condemned in their entirety those parcels on the North Fork that the dams' construction and operation would either occupy or overflow with water (Type One parcels). The Type One parcels constituted a combined total of 730 acres.
¶ 6 Second, Tacoma condemned the riparian and water rights, but not the land rights, of those parcels located below the dam, primarily on the main stem (Type Two parcels). Tacoma condemned only the riparian and water rights of the Type Two parcels because the dams' construction and operation took water away from these parcels but did not occupy or overflow them. In its condemnation petition, Tacoma stated the following as to its reason for condemning the Type Two parcels' water rights:
Clerk's Papers (CP) at 1382 (emphasis added).
¶ 7 In Funk, Tacoma paid compensation for the entire Type One parcels and the riparian and water rights of the Type Two parcels. The Funk court determined these compensation awards individually for each owner. Many parcel owners received their individualized compensation awards by jury verdict;, while other parcel owners received their compensation awards under stipulation agreements.
¶ 8 The Type One parcel owners received a combined total of $90,200, in approximately 7 individual compensation awards, for their 730 acres of parcels, averaging $123.56 per acre. The Type Two parcel owners received a combined total of $50,670.30, in approximately 40 individual compensation awards, for their riparian and water rights (which were attached to 6,360.6 acres), averaging $7.95 per acre. After Tacoma paid these compensation awards, the Funk superior court entered two separate decrees condemning the land rights of the parcels.
The decree condemning the land rights of the Type One parcels for Tacoma's use stated:
CP at 3660.
¶ 9 On the same day, the Funk superior court entered a decree condemning the riparian and water rights of the Type Two parcels stating:
CP at 3650, 3656.
¶ 10 From 1926 until 1988, Tacoma's dams diverted most of the North Fork's water flow out of the river, resulting in an average of only 10 cfs released from the North Fork and into the main stem.
¶ 1 In 1988, FERC required Tacoma to increase the flows to 30 cfs as part of its water quality certification for the project. In 1998 FERC began requiring Tacoma to release even more water through the dams, for the purpose of preserving fish and the environment. Litigation with FERC regarding minimum water flow required Tacoma to increase the flow to 60 cfs in 1999 and to 240 cfs in 2008. In 2010, an amendment to Tacoma's 1998 FERC license created a schedule for releasing different amounts of water at different times throughout the year. However, the 2010 amendments to the license required Tacoma to maintain an average flow that was significantly higher than the 10 cfs released by the dams through most of their history.
¶ 12 Since 1988, Tacoma increased water flow to and through the main stem, increasing the amount of water that flowed alongside the Richerts' parcels. This increase of water is the subject of the Richerts' lawsuit against Tacoma.
¶ 3 Gerald Richert and the members of his class involved in this appeal are owners of 88 of the Type Two parcels, whose riparian and water rights, but not land rights, were condemned by Tacoma in Funk.
¶ 14 The Richerts sued Tacoma, alleging that the increased amount of water that Tacoma's dams released overflowed the main
¶ 15 The dams' diversion of water away from the main stem, from 1926 until 2008, prevented the water from naturally washing accumulating gravel out of the main stem. The Richerts claimed that over the decades this failure to wash out the gravel caused aggradation: the slow building up of gravel in a river bed that greatly reduces the amount of water that a river can contain.
¶ 16 The Richerts alleged that by 2008, the main stem had suffered aggradation to the point that it could not contain Tacoma's sudden increase of water flow into the main stem, which caused the main stem to overflow. The Richerts claim that the increased water flow overflowed the banks of the main stem and additionally has caused a continuing rise in the groundwater table.
¶ 17 The Richerts sued Tacoma for (1) violation of riparian rights, (2) failure to provide a proper outflow for channeled surface waters, (3) violation of RCW 4.24.630 (liability for damage to land and property), (4) trespass and continuing trespass, (5) nuisance and continuing nuisance, (6) negligence, (7) inverse condemnation by flooding, and (8) inverse condemnation by groundwater. Tacoma asserted as an affirmative defense that Funk's decrees constitute a final judgment barring the Richerts' claims as res judicata.
¶ 18 The Richerts filed a motion for partial summary judgment, asking the superior court to dismiss Tacoma's affirmative defense related to Funk. Tacoma also filed a motion for summary judgment, asking the superior court to dismiss the Richerts' claims in their entirety.
¶ 19 The superior court granted the Richerts' motion for partial summary judgment, dismissing Tacoma's affirmative defense. The superior court determined that the Richerts' claims were "not within the contemplation of the Funk litigants or the Funk court." Verbatim Report of Proceedings (June 8, 2012) at 8. The superior court denied Tacoma's motion for summary judgment.
¶ 20 The superior court entered a very limited final judgment to facilitate our interlocutory review under CR 54(b), RAP 2.2(d), and RAP 2.3(b)(4). The superior court limited its final judgment to the issue of whether the Funk condemnation action precluded the Richerts' ability to pursue their claims. The superior court stated that its final judgment "does not apply to any of the other issues adjudicated on summary judgment." CP at 63. Tacoma appeals the superior court's partial summary judgment, arguing that Funk's final judgment precludes the Richerts' claims as res judicata.
¶ 21 Tacoma argues that res judicata bars the Richerts' claims because these claims share a concurrence of identity with Funk's final judgment. We disagree.
¶ 22 We review summary judgments de novo. Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794, 64 P.3d 22 (2003). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). In this case, the parties agree that no genuine issue of material fact exists on the limited issue of the effect of the Funk judgment on the Richerts' ability to pursue their claims.
¶ 23 The ownership of a parcel adjacent to a watercourse gave that parcel owner riparian rights in the watercourse. Dep't of Ecology v. Abbott, 103 Wn.2d 686, 689, 694 P.2d 1071 (1985). Washington State abolished riparian rights in 1917, but maintained those riparian rights existing prior to 1917. Abbott, 103 Wash.2d at 692, 694 P.2d 1071. These rights existing before 1917 can still be condemned under eminent domain. See Former RCW 90.03.040 (1917); Lummi Indian Nation v. State, 170 Wn.2d 247, 253, 241 P.3d 1220 (2010). The State abolished all preexisting but unused riparian rights in 1932. Abbott, 103 Wash.2d at 695-96, 694 P.2d 1071.
¶ 24 Where riparian rights still exist, the riparian owner has the right "(1) to
¶ 25 Rights to water use can be condemned by eminent domain. Former RCW 90.03.040; Lummi Indian Nation, 170 Wash.2d at 253, 241 P.3d 1220. However, where one has a right to use water, one still may not overflow the river and flood parcels without compensation. See RCW 90.03.030 (person with right to use river water may not increase water in river above ordinary high-water mark); see also Thompson v. Dep't of Ecology, 136 Wn.App. 580, 586, 150 P.3d 1144 (2007) (ordinary high-water mark "`represent[s] the point at which the water prevents the growth of terrestrial vegetation.'"
¶ 26 Whether res judicata bars a party from pursuing an action is a matter of law reviewed de novo. Martin v. Wilbert, 162 Wn.App. 90, 94, 253 P.3d 108 (2011). Res judicata's purpose is to prevent parties from relitigating claims. Loveridge v. Fred Meyer, Inc., 125 Wn.2d 759, 763, 887 P.2d 898 (1995). Res judicata bars the relitigation of claims that were litigated to a final judgment or could have been litigated to a final judgment in a prior action. Loveridge, 125 Wash.2d at 763, 887 P.2d 898; Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 865, 93 P.3d 108 (2004). However, when considering whether res judicata precludes a party from litigating a claim, we are careful to not "`deny the litigant his or her day in court.'" Hisle, 151 Wash.2d at 865, 93 P.3d 108 (quoting Schoeman v. N.Y. Life Ins. Co., 106 Wn.2d 855, 860, 726 P.2d 1 (1986)). Res judicata applies not just to those claims that a prior case's final judgment actually resolved, but also to claims that were not resolved but that reasonably diligent parties should have raised in that prior litigation. Hisle, 151 Wash.2d at 865, 93 P.3d 108.
¶ 27 For res judicata to preclude a party from litigating a claim, a prior final judgment must have a concurrence of identity with that claim in (1) subject matter, (2) cause of action, (3) persons and parties, and (4) quality of the persons for or against whom the claim is made. Spokane Research & Def. Fund v. City of Spokane, 155 Wn.2d 89, 99, 117 P.3d 1117 (2005); Loveridge, 125 Wash.2d at 763, 887 P.2d 898. The party asserting res judicata, in this case Tacoma, bears the burden of proof. Hisle, 151 Wash.2d at 865, 93 P.3d 108.
¶ 28 Regarding the second element of this four-part res judicata test, to determine whether two causes of action are the same, we consider whether "(1) prosecution of the later action would impair the rights established in the earlier action, (2) the evidence in both actions is substantially the same, (3) infringement of the same right is alleged in both actions, and (4) the actions arise out of the same nucleus of facts." Civil Service Comm'n v. City of Kelso, 137 Wn.2d 166, 171, 969 P.2d 474 (1999).
¶ 29 Tacoma argues that Funk's final judgment bars the Richerts' claims as res judicata. We disagree, because Tacoma has failed to prove that Funk's final judgment shares a concurrence of identity with the Richerts' claims or that reasonably diligent parties should have thought to petition the
¶ 30 Tacoma argues that the Richerts' claims are precluded by res judicata, because these claims share a concurrence of identity with Funk's final judgment. We disagree.
¶ 31 In Funk, Tacoma condemned the right to take away the use of the Type Two parcels' water, but it did not condemn the right to invade the Richerts' parcels with water. This is evidenced by Tacoma's petition for condemnation in Funk.
¶ 32 Although the decrees constitute Funk's final judgment, Tacoma's petition reveals the scope of Funk's subject matter (i.e., the scope of what rights Tacoma was condemning) and its cause of action (i.e., the scope of what Tacoma was asking the court to decide). Thus, Tacoma's petition helps explain the scope of the action below, which allows this court to compare Funk with the Richerts' claims to determine if they share a concurrence of identity of subject matter or cause of action.
¶ 33 Tacoma's petition in Funk requested condemnation of the Type Two parcels because "the volume of water in said river below said dam will be diminished." CP at 1382. This shows that Tacoma sought only the right to deprive the Type Two parcels below the dam of their use of the main stem's water, not the right to overwhelm the Type Two parcels with the main stem's water. Thus, Funk's decrees condemned only the right to the Richerts' parcels' use of the main stem's water that Tacoma actually requested in Funk.
¶ 34 The Richerts make claims for (1) violation of riparian rights; (2) failure to provide a proper outflow for channeled surface waters, (3) violation of RCW 4.24.630 (liability for damage to land and property), (4) trespass, (5) nuisance, (6) negligence, (7) inverse condemnation by flooding, and (8) inverse condemnation by groundwater. More important than the names of the Richerts' claims is what they concern. All of the Richerts' claims concern the recent flooding and a rise in the groundwater table on the Richerts' parcels, allegedly caused by Tacoma's release of too much water into the main stem.
¶ 35 Regarding the first element of res judicata's test, concurrence of identity of subject matter, the Richerts' alleged invasion of water onto their parcels does not have the same subject matter with the claims litigated to a final judgment in Funk. This is because Funk's final judgment dealt with only deprivation of the parcels' water use, rather than flood or groundwater damage to the parcels themselves.
¶ 36 Regarding the second element, concurrence of identity with cause of action, Tacoma has failed to meet its burden of proving that the Richerts' claims constitute the same cause of action as Funk. This is because in Funk, Tacoma condemned only the right to deprive the parcel owners of
¶ 37 Tacoma has failed to prove that the Richerts' claims for invasion of water share a concurrence of identity with Funk's final judgment in terms of subject matter or cause of action. See Loveridge, 125 Wash.2d at 763, 887 P.2d 898. For res judicata to preclude the Richerts' claims, Tacoma must prove that the Richerts' claims meet all four elements of res judicata. Because Tacoma cannot prove that the Richerts' claims for invasion of water share a concurrence of identity with Funk's final judgment in terms of subject matter or cause of action, Tacoma cannot prove either of the first two elements of res judicata. See Loveridge, 125 Wash.2d at 763, 887 P.2d 898. Thus, we need not consider elements three and four of res judicata.
¶ 38 Tacoma argues that the Richerts' claims are precluded by res judicata, even if they were not raised in Funk, because reasonable parties should have raised them in Funk. We disagree.
¶ 39 Res judicata applies to claims that were not resolved in a prior litigation's final judgment, where reasonably diligent parties should have raised those unresolved claims in the prior litigation. Hisle, 151 Wash.2d at 865-66, 93 P.3d 108. However, in this case, the Funk litigants could not have reasonably brought the Richerts' claims at the time of Funk for three reasons.
¶ 40 First, the Richerts based their claims on alleged aggradation that occurred over the past eight decades, which reduced the amount of water that the main stem could handle. The Funk litigants could not have reasonably predicted such aggradation over eight decades and, thus, reasonable litigants could not have predicted such a phenomenon would combine with the dams to cause water to overflow and damage the Richerts' parcels.
¶ 41 Second, the dams' increased water flow resulted from requirements imposed on Tacoma by FERC litigation for the purpose of water quality and environmental protection, starting in 1988. No reasonable litigant in the 1920's could have predicted the rise of modern environmental protection, nor could a reasonable party have predicted that starting in 1988, a federal agency would require Tacoma to increase the water flow through its dams for water quality and preservation of fish and the environment.
¶ 42 Third, Tacoma explicitly stated in its Funk petition that it needed to condemn the Funk litigant's riparian rights because "the volume of water in said river below said dam will be diminished." CP at 1382. Thus, Tacoma's petition put the parties on notice
¶ 43 Affirmed.
We concur: PENOYAR, J.P.T. and HUNT, J.
Tacoma argues alternatively that even if res judicata did not preclude the Richerts' claims, Tacoma has no duty to maintain its dams' artificial diversion of water away from the main stem and, thus, it cannot face liability for merely decreasing the amount of water that its dams divert away from the main stem. We do not address this issue because it concerns Tacoma's general duty to maintain its artificial diversion of water from the main stem. This does not relate to the effect of Funk on the Richerts' claims, and is thus outside this appeal's limited scope.
Finally, we do not decide all "issues with regard to Tacoma v. Funk" as requested by the superior court's final judgment, because that would constitute an impermissible advisory opinion. CP at 63-64; see To-Ro Trade Shows v. Collins, 144 Wn.2d 403, 416-17, 27 P.3d 1149 (2001).