JOHN C. BEESON and XONG CHAO BEESON, Appellants,
CITY OF PALMER, Appellee.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Kari Kristiansen, Judge.
Ross A. Kopperud, Palmer, for Appellants.
Michael R. Gatti and Mary B. Pinkel, Wohlforth, Brecht, Cartledge & Brooking, Anchorage, for Appellee.
Laura Fox, Assistant Attorney General, Anchorage, and Michael C. Geraghty, AttorneyGeneral, Juneau, for Amicus Curiae State of Alaska. James S. Burling, Sacramento, California, for Amicus Curiae Pacific Legal Foundation.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
FABE, CHIEF JUSTICE.
John and Xong Chao Beeson own and live on aproperty in the Palmer West Subdivision in the City of Palmer. Since they moved to the property in 1985, the Beesons have experienced several flooding incidents on their land. They attribute this flooding to water backing up against Helen Drive, a long-standing two-lane road adjacent to their property originally built by the Matanuska-Susitna Borough but controlled by the City since 2003. After the City installed a water line under Helen Drive and repaved the road surface in 2005, the flooding became more severe and caused serious damage to the Beesons' home. The Beesons brought an inverse condemnation claim against the City, arguing that the City was liable for the damage to their property. After a three-day bench trial the superior court found that the City's road reconstruction project was not a substantial cause of the flooding and therefore the City could not be liable in inverse condemnation. The superior court also granted attorney's fees to the City. The Beesons appeal both rulings. We affirm the superior court's decision with respect to the inverse condemnation claim and remand for further proceedings regarding attorney's fees.
II. FACTS AND PROCEEDINGS
A. Factual Background
The Beesons purchased their home in the Palmer West Subdivision in1985; their property was and remains adjacent to Helen Drive, a pre-existing two-lane gravel road constructed by the Matanuska-Susitna Borough. The Beesons first noticed water pooling in their yard and the Helen Drive right-of-way in the spring of 1986. At the Beesons' request the Matanuska-Susitna Borough, which was responsible for the road at that time, installed a dry well to try to eliminate the pooling. Water continued to pool on the Beesons' property in subsequent years. The characteristics of the pooling depended on snow and rain conditions each spring. In 1998 the Borough paved Helen Drive, raising the road at least five inches. Although John Beeson testified at trial that flooding conditions after the paving remained "[a]bout the same, " the superior court found that Beeson's testimony was not credible and concluded that the Beesons had routinely pumped water from their property across Helen Drive to alleviate ponding after the paving.
In 2003 the City of Palmer annexed the area in which the Beesons' property is located and assumed ownership of and responsibility for Helen Drive. In 2005 the City undertook the Helen Drive Project, in which it installed a water line to deliver municipal water and reconstructed the road. The following spring a larger than usual pool of water formed on the Beesons' property, extending over their parking area and into their garage. The Beesons' property flooded again in 2007 during a warm period when a great deal of rain fell while there was still snow on the ground. The City responded by providing a steamer truck to try to rehabilitate the dry well, delivering material to create dikes and berms, and pumping water from the Beesons' property using City and hired equipment. The property flooded yet again in 2009, damaging the Beesons' living room, basement, garage, and personal property. The Beesons hired a professional restoration service to repair the damage.
The Beesons filed suit against the City in September 2008, claiming inverse condemnation under article I, section 18 of the Alaska Constitution and the Fifth Amendment to the United States Constitution,  for flooding damage that the Beesons alleged was associated with Helen Drive. In December 2010 the City made an ...