Clark Lloyd Lumber Co. v. Puget Sound & C. Ry. Co.

• Decision Date: 25 August 1916
• Docket Number: 13393.
• Citation: 92 Wash. 601,159 P. 774
• Court: Washington Supreme Court
• Parties: CLARK LLOYD LUMBER CO. v. PUGET SOUND & C. RY. CO.

159 P. 774

92 Wash. 601

CLARK LLOYD LUMBER CO. v. PUGET SOUND & C. RY. CO.

No. 13393.

Supreme Court of Washington

August 25, 1916

Department 1. Appeal from Superior Court, Skagit County; Augustus Brawley, Judge.

Action by the Clark Lloyd Lumber Company against the Puget Sound &amp Cascade Railway Company. Judgment for plaintiff, and defendant appeals. Judgment affirmed conditionally, with provision for filing remittitur.

Kerr &amp McCord, of Seattle, for appellant.

Ryan &amp Desmond, of Seattle, and Coleman & Gable, of Mt. Vernon, for respondent.

CHADWICK J.

This action is brought to recover for damages to respondent's mill site and boom grounds and for damages to a flume. Another element of damage was rejected by the jury, and will not be noticed in this opinion.

Plaintiff owned property along the shore of the Skagit river. Its mill was on the west shore. It operated a fin boom anchored to the east shore. Appellant desiring to construct a railroad along the east bank of the stream across the property of respondent, the parties, on the 27th day of July, 1912, with intent to preserve their mutual rights, entered into a written contract. The material parts of the contract follow:

'Whereas, said first party has under even date herewith executed to second party a certain right of way deed over certain lands in Skagit county, to wit, lots 6, 7, and 8 in section 30 and lots 8 and 9 in section 29, township 35 north, range 5 of W. M., reference to which deed is hereby made for a more particular description of the lands so conveyed; and whereas, the said first party is desirous of obtaining the rights and privileges herein agreed upon: Now, therefore, for a valuable consideration it is hereby agreed between the parties hereto as follows: (1) That the said party of the first part is hereby granted the right to cross and recross said right of way so conveyed with such logging or skid roads, shutes, or tramways, or to haul logs or bolts across said right of way and railroad at such places and points as may be convenient for first party, and also the right to take and remove across said railroad and right of way in any feasible way whatsoever any and all timber on said described lands: Provided, however, that said first party shall use ordinary care and diligence in taking any and all timber, logs, or bolts over and across said railroad track, having due regard to the condition of the ground and the feasibility and cheapest way to log the timber off said lands and the rights of second party herein in operating its railroad, and in case any damage is done to second party's railroad or track while first party is so logging and removing the timber as hereinbefore provided, it shall not be liable to second party for any injury done or caused unless such injury is caused by the willful, deliberate, or careless act of first party. (2) That the said first party shall have a right to use and occupy all the shore line along the Skagit river for booming, logging, or other purposes, and shall have the right to keep its finbooms tied on the stumps it is now attached to or any other structure it may place on such shore line or lands: Provided, however, that such occupancy of the shore line and tying and maintaining of said fin boom on said stumps shall not interfere with the construction, operation, and maintenance of the railroad of said second party.'

In building the railroad, appellant did not follow the center of the right of way, but followed the shore line as nearly as it could. It blasted the stumps to which the boom was anchored, and wasted the debris from the cut along the shore over the bank of the stream. The contention of respondent is that the anchorage of its boom and a cove in which it floated logs were destroyed, and the currents of the stream were so shifted as to result in material damage to its mill property. A jury found that respondent was entitled to recover damages for the blasting of the stumps, and the deposit of waste rock and dirt in the cove, in the sum of $9,237.75, and for the destruction of the flume in the sum of $125. Judgment was entered accordingly.

The first question of law to be considered is whether the action is barred by the statute of limitations. It is contended that this is an action for consequential damages sounding in tort, and is barred under Rem. & Bal. Code, § 165. 'An action for relief not hereinbefore provided for shall be commenced within two years after the cause of action shall have accrued,' and does not come under section 159, which provides that an action for a direct trespass vi et armis shall be begun within three years, or section 157, limiting an action upon a contract in writing, or liability express or implied arising out of a written agreement. Suter v. Wenatchee, 35 Wash. 1, 76 P. 298, 102 Am. St. Rep. 881; Denney v. Everett, 46 Wash. 342, 89 P. 934, 123 Am. St. Rep. 934; Welch v. Seattle, 56 Wash. 97, 105 P. 166, 26 L. R. A. (N. S.) 1047, are relied on. The Welch Case in no way bears upon the facts of this case. Indeed the case distinguishes itself. It is said in the opinion that the damages sought were not damages to the freehold, in which plaintiff had no interest, but compensation for the loss of business. There being no element of trespass upon tangible property, in so far as the plaintiff was concerned, it followed that the loss of business complained of was purely consequential. In Suter v. Wenatchee, supra, the same question was before the court. In that case the court held that damages, resulting from an overflow from an irrigating canal lawfully built, but without sufficient provision for surplus water, were consequential and the right to recover was barred by the two-year statute. So, too, in Denney v. Everett, supra, the court was called upon to consider a lawful act with consequent injury. The Suter Case was followed.

These decisions are instructive, and, while holding on the record made in the particular case, that the action was not for a direct trespass, but a consequential injury, they in no way militate against respondent's right to recover in the case at bar. That section 159 of the Code refers to trespasses that are direct, and not to those fictional trespasses that give rise to actions upon the case, is suggested in the Suter Case. The rule for determining the character of the action is best stated in Blackstone's Commentaries (Lewis' Ed....