Aylmore v. City of Seattle

Decision Date12 March 1918
Docket Number14353.
Citation100 Wash. 515,171 P. 659
CourtWashington Supreme Court
PartiesAYLMORE et al. v. CITY OF SEATTLE.

Department 1. Appeal from Superior Court, King County; John S. Jurey Judge.

Action by Reeves Aylmore, Jr., and others, against the City of Seattle. Judgment for defendant, and plaintiffs appeal. Reversed.

S. H Kelleran, of Seattle, for appellants.

Hugh M Caldwell and James A. Dougan, both of Seattle, for respondent.

WEBSTER J.

This is an action to recover the possession or, in the alternative the value of property alleged to have been taken and appropriated to public use. The amended complaint in the cause, which was commenced on October 17, 1916, alleges in substance that the plaintiffs are the owners of three parcels of land in the city of Seattle; that in 1913 the defendant, without their consent, entered upon and commenced to improve the property as parts of certain public thoroughfares, which improvement was completed and the streets opened for travel in the summer of 1914; that the defendant is now devoting the property to such public use without the plaintiffs' consent and without having condemned or paid therefor, or acquired title thereto, and that in 1913 the plaintiff Aylmore notified the defendant in writing that it was proceeding in the premises without having complied with the law, and requested that an action be instituted for the purpose of condemning and paying for the property, which request was, on October 20, 1913, denied. The prayer is for the recovery of the land, or, in the alternative, that plaintiffs have judgment for its value.

The defendant answered, pleading among other defenses the two-year and the three-year statutes of limitation. Thereafter in due time the case came on for trial before a jury, and when the plaintiffs called their first witness the defendant objected to the introduction of any evidence upon the ground that it affirmatively appeared from the amended complaint that the action was barred by limitation, which objection was sustained and judgment of dismissal entered. The plaintiffs have appealed.

Whether the action is barred depends upon which of the various statutes of limitation is applicable to a proceeding of this character. Appellants assert that the action, being one for the recovery of compensation guaranteed by the Constitution to the owner of land taken for public use, is not barred until the defendant has acquired title to the property by prescription. Respondent contends that the plaintiffs, having stood by and permitted the city to take and improve the property as portions of public streets, are estopped from maintaining ejectment for the recovery of the land, and are restricted to an action for damages which action is barred either by subdivision 1 of section 159 of the Code, relating to actions for trespass upon real property, or by section 165, relating to actions for which provision is not otherwise made.

The precise question thus presented is one of first impression in this court. It is manifest however, that the action is not governed by the three-year statute. We have repeatedly held that a municipality, in taking private property for public use, acts in its sovereign capacity and not as a trespasser. Having the right to take, whatever its procedure or lack of procedure, it is not a wrongdoer. Kincaid v. Seattle, 74 Wash. 617, 134 P. 504, 135 P. 820; Casassa v. Seattle, 75 Wash. 367, 134 P. 1080; Domrese v. Roslyn, 89 Wash. 106, 154 P. 140.

Nor is it controlled by the period of limitation applicable to actions for the recovery of consequential damages to property not appropriated. The only sense in which this action may be considered as one for damages is that the amount sued for is unliquidated. The city has not damaged appellants' property, but has actually taken it from them. They are not proceeding to recover for an injury to property, but are seeking to obtain just compensation in the way of payment for private property actually taken and devoted to public use.

The rule applicable to actions for damages properly so called is stated in Lewis on Eminent Domain (3d Ed.) § 968, in this language:

'Whenever there is an unlawful entry upon property for the purpose of appropriating it to public use, or whenever it is injured by the construction or operation of public works, so as to afford the owner a cause of action, the owner may have redress by any of the appropriate common-law remedies, and the general statute of limitations will apply thereto.'

While the rule with respect to actions seeking compensation for property actually taken is stated in section 967 of the same work as follows:

'We have seen that, where property is entered upon and appropriated to public use without complying with the law, the owner may waive the tort and sue for his just compensation. The same rule applies where the entry is by consent and the question of compensation is left for future adjustment. In such cases the action for just compensation is not barred, except by adverse possession for the requisite period to establish a title by prescription.'

The reason for this distinction is perfectly obvious. A corporation possessing the right of eminent domain may acquire property for its public uses in one of three ways only: (a) By purchase; (b) by condemning and paying for the property in the manner provided by law; and (c) by adverse possession for the statutory period. If the right of the owner to recover compensation for property actually taken is barred before the expiration of the prescriptive period, this anomalous situation will result: He will continue to be the owner of the property until he loses his title by adverse possession, yet during the interval he cannot exercise a single act of beneficial ownership or do any act to toll the running of the statute. He will be deprived of the use and enjoyment of property which belongs to him, both in law and in equity, while the one who has taken it without title either legal or equitable can exercise over it every right ordinarily incident to ownership. We are unable to appreciate a condition where an owner is deprived of all right of enjoyment, while another who holds no sort of title to the property may use and deal with it as his own. Title cannot be invested where none has been divested. To hold otherwise is to sanction a custom belonging to an age long since passed, which permitted one to acquire property of another merely by taking it provided he was strong enough to retain it.

'Where the Constitution either expressly, or as interpreted by the courts, requires compensation to be first made for property taken for public use, a law which casts the initiative upon the owner and requires him to prosecute his claim for compensation within a time limited or be barred, is invalid. When under such a Constitution property is appropriated to public use without complying therewith, the owner's right to compensation is not barred, except by adverse possession for the prescriptive period.' Lewis, Eminent Domain (3d Ed.) § 966.

See, also, Nichols on Eminent Domain (2d Ed.) p. 958; Randolph on Eminent Domain § 393; Mills on Eminent Domain (2d Ed.) § 346; 10 R. C. L. p. 236.

In the case of Salt Lake Inv. Co. v. Oregon Short Line R. Co., 46 Utah, 203, 148 P. 439, decided by the Supreme Court of Utah in 1914, it is said:

'The evidence shows the entry and taking to have been in March or April, 1906. The action was commenced in December, 1912, more than six and less than seven years from the taking. The contention is first made that the action is barred by provisions of Comp. Laws 1907, § 2877, subdiv. 2, which provide that 'an action for waste or trespass of real property' must be commenced within three years. And, if that section is held not applicable, then the further claim is made that the action is barred by the provisions
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    ...such inverse condemnation proceedings. Ackerman v. Port of Seattle, 55 Wash.2d 400, 348 P.2d 664, 77 A.L.R.2d 1344; Aylmore v. City of Seattle, 100 Wash. 515, 171 P. 659, L.R.A.1918E, 127; Oklahoma City v. Wells, 185 Okl. 369, 91 P.2d 1077, 123 A.L.R. 662; cases collected in Annotation, 123......
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    ...property taken is acquired by prescription. The prescriptive period in this state has been held to be ten years. See Aylmore v. Seattle (1918), 100 Wash. 515, 171 P. 659; Domrese v. Roslyn (1918), 101 Wash. 372, 172 P. 243; Litka v. Anacortes (1932), 167 Wash. 259, 9 P.2d This statement of ......
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