Casassa v. City of Seattle

• Decision Date: 11 September 1913
• Citation: 75 Wash. 367,134 P. 1080
• Parties: CASASSA et ux. v. CITY OF SEATTLE.
• Court: Washington Supreme Court

134 P. 1080

75 Wash. 367

CASASSA et ux. v. CITY OF SEATTLE.

Supreme Court of Washington

September 11, 1913

Department 2. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by Peter Casassa and wife against the City of Seattle. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

Walter A. Keene and E. H. Guie, both of Seattle, for appellants.

Jas. E Bradford and Ralph S. Pierce, both of Seattle, for respondent.

ELLIS J.

Plaintiffs originally brought this action against the city of Seattle and its contractors to recover damages for the sliding of the soil of their lots caused by the removal of lateral support in regrading certain streets. On plaintiff's evidence the action was withdrawn from the jury and dismissed. On appeal we sustained the dismissal as to the contractors, but remanded the cause for trial as against the city. For a statement of the facts, reference is made to our opinion on that appeal. Casassa v. Seattle, 66 Wash. 147, 119 P. 13. On a trial pursuant to that decision, the jury returned a verdict for the defendant. From a judgment thereon the plaintiffs have again appealed.

1. It is first asserted that the court erred in excluding evidence as to the amount expended by the appellants in an effort to save the houses on the lots from destruction. The claim for damages presented to the city council did not include this as a specific item of damage. The trial court for that reason excluded this evidence. Article 4, § 29, of the charter of Seattle, requiring the presentation to the city council and filing with the clerk of all claims for damages against the city within 30 days after such claims accrued, provides that the notice of claim shall 'contain the items of damages claimed.' For the full text of this charter provision and the character of claims which have been held to be included within its purview reference is made to the following decisions: Jurey v. Seattle, 50 Wash. 272, 97 P. 107; International Contract Co. v. Seattle, 69 Wash. 390, 125 P. 152; same case on rehearing, 134 P. 502; Cole v. Seattle, 64 Wash. 1, 116 P. 257, 34 L. R. A. (N. S.) 1166, Ann. Cas. 1913A, 344. Under these decisions the presentation and filing of the claim was an indispensable prerequisite to the maintenance of this action. They unequivocally hold that the charter provision applies to all claims for damages. This view does not impinge our decision in the recent case of Kincaid v. Seattle, 134 P. 504, in which we held that, where property was taken or damaged without any antecedent condemnation, it was none the less a taking in the exercise of a sovereign function, hence not tortious. For that reason we held that the city could not impute to its own lawful act a tortious character in order to avoid liability by pleading the failure of the plaintiff to present and file a claim pursuant to the charter as a defense to the plaintiff's action to assess the damages for such lawful taking which should have been assessed in advance. On that ground we held that to require the presentation of the claim as a prerequisite to the action in such a case would violate section 16, art. 1, of the state Constitution, providing that property shall not be taken for public use without compensation. The decision in Kincaid v. Seattle in effect overrules the decision in Postel v. Seattle, 41 Wash. 432, 83 P. 1025, cited by respondent, since in that case there had been no prior condemnation for the right to grade the street. Though in the Postel Case, as shown by the briefs, the grading of the street was an original grading and first improvement of the street, and there was no claim that the grade was unreasonable or that the work was not properly done, still, as the law was at that time, the city could not damage private property by such original grading of the streets, though the grade was reasonable and the work properly done, without first condemning for the right to so damage. This court so held on a rehearing in Fletcher v. Seattle, 43 Wash. 631, 86 P. 1046, 88 P. 843. It is manifest, therefore, that in the Postel Case, under the doctrine which we have just announced in the Kincaid Case, the filing of a claim was unnecessary. The same conclusion, however, does not follow in the present case. This is neither an original grade, damage from which would be now held without injury under Ettor v. Tacoma, 57 Wash. 50, 106 P. 478, 107 P. 1061, nor a change from an original grade, for which no condemnation had been made. In the case now before us the right to change the street grade, make the cut, and take land sufficient for a one to one slope was determined and the compensation therefor assessed before the work was done. The damages now claimed resulted from the inadequacy of the plan of the improvement to protect the remaining property from sliding. The claim is not for the taking of some additional definite or definable part of the lots for making a sufficient slope but for the removal of lateral support without providing, in the plan and execution of the work, for a retaining wall or a sufficient slope to prevent the sliding. This is clear, since the damage now claimed would have resulted and to the same extent had the one to one slope been entirely confined in the first instance to the street itself without any invasion or taking of appellant's property for a slope. This case is, in principle, a replica of Hinckley v. Seattle, 132 P. 855. There condemnation was made in advance, but the plan of the improvement resulted in damage to adjacent lots. In that case, though no mention of the fact is made in the opinion, a sufficient claim was, as the record shows, actually presented and filed.

The claim in the case in hand was clearly insufficient to permit a recovery for the item in question. The record shows that some expenditure was contemplated by the appellants before the claim was filed. Though the amount may not then have been known to appellants, and hence need not have been stated, the fact was known to them and should have been stated as an item giving the proper official body of the city notice that it might act upon it or investigate as to the probable feasibility of the measures proposed to save the houses. While the destruction of the houses was a direct result of the slide of which notice was given in the claim, and proof of their value was therefore permitted, the futile expenditure in trying to save the houses was not such a direct or necessary result.

Nor did the fact that the city officials supervising the work had knowledge of the measures being taken to save the houses dispense with the necessity for filing a valid claim. 'The city council is the only...