Doran v. City of Seattle

• Decision Date: 07 March 1901
• Citation: 64 P. 230,24 Wash. 182
• Parties: DORAN v. CITY OF SEATTLE.
• Court: Washington Supreme Court

64 P. 230

24 Wash. 182

DORAN v. CITY OF SEATTLE.

Supreme Court of Washington

March 7, 1901

Appeal from superior court, King county; E. D. Benson, Judge.

Action by Frank Doran against the city of Seattle. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

W. E Humphrey and Edward Von Tobel, for appellant.

John F Dore, John W. Kelley, James. J. McCafferty, and J. S. Mulvey for respondent.

DUNBAR, J.

The plaintiff, Frank Doran, alleges that the defendant, the city of Seattle, negligently constructed a bulkhead in front of his premises, and on account of such negligence the bulkhead pressed against and injured his house. This suit was begun on the 24th day of January, 1898. The plaintiff's claim for damages was filed on the 13th day of September, 1897. On the trial, after the plaintiff had introduced his evidence motion for nonsuit was made by defendant and denied by the court. The jury returned a verdict in favor of the plaintiff.

The question involved in this appeal is in relation to the statute of limitations, and that question is raised by the following instructions asked by the defendant: 'The plaintiff can have but one cause of action for damages under the facts of this case, and in the one action the plaintiff is entitled to recover for all damages, if at all, sustained by him, both past and prospective. The cause of action, if any, accrued to the plaintiff at the time of the first damages--no matter how small they may have been--that he sustained; and unless a claim for past and prospective damages was presented to the city council and filed with the clerk of the defendant within six months after the time the cause of action accrued, and the action was commenced within two years after the first damages were sustained, there can be no recovery, and your verdict must be for the defendant.' 'The statute requires actions for damages such as are claimed in the complaint to be commenced within two years after the right of action has accrued. If you find that the damages accrued to plaintiff's property more than two years before the commencement of this action, no matter how small that damage may have been, then the whole claim is barred by the statute of limitations, and your verdict must be for the defendant. The law will not permit the plaintiff to split his cause of action, and to recover by piecemeal; but he must recover, if at all, for all damages, past and prospective, in one single action.' These instructions the court refused to give, but instructed as follows: 'If you believe, from a preponderance of the evidence in this case, that in building and maintaining the bulkhead in question the defendant has not used such care as ordinarily prudent city officials, having similar work in charge, generally exercise in erecting and maintaining entirely similar bulkheads, and that through such failure the house of plaintiff was, within six months immediately prior to the giving of this notice of claim of plaintiff to defendant, injured by the gradual sliding of said bulkhead, then your verdict will be for plaintiff in one such gross sum as will, in your opinion, from the evidence, just compensate plaintiff for such injury as so accrued within said six months immediately prior to the filing of said plaintiff's claim with defendant.' It is insisted by the appellant that, according to the instructions given by the court, the statute of limitations began to run from the time the injury ceased, and not from the time the right of action accrued; that the case was tried upon this theory, which was an erroneous one.

Passing the question of the legality of the statute in relation to the presentation of claims before the commencement of the action and within a certain time after the damages had occurred, we will proceed to the main question involved, which is decisive of the case, granting, for the sake of argument, that the filing of the claim was necessary. There are a few cases which support the theory of defendant that the statute of limitations begins to run from the inception of the injury. In Powers v. City of Council Bluffs, 45 Iowa, 652, it was held that whenever a nuisance is of such a character that its continuance is necessarily an injury, and when it is of a permanent character, that will continue without change from any cause but human labor, then the damage is an original damage, and may be at once fully compensated. In Town of Troy v. Cheshire R. Co., 23 N.H. 83, the same doctrine was announced, although in that case it was held that if the act done was not necessarily injurious, or if it was contingent whether further injury would arise, the plaintiff could recover damages only to the date of his writ. In this connection it might be said that it would be difficult to tell in the case at bar whether the injury would continue, and, if so, to what extent. In Fowle v. New Haven & N. Co., 107 Mass. 352, it was held that a judgment against a railroad corporation for damages, not limited to those actually suffered at the date of the writ, for locating and constructing their road on the bank of a river, so as to divert its course and cause it to wash away the plaintiff's land, is a bar to a like action by him against them for subsequent damages from the same cause. But it will be observed that in this case the decision was placed upon the ground that the damages in the other case had not been limited to those suffered at the date of the writ, and the rule contended for by the appellant cannot be said to have been adopted in Massachusetts, as, in the subsequent case of Prentiss v. Wood, 132 Mass. 486, it is held that an action for damages sustained within six years by the wrongful continuance of a dam is not barred by the statute of limitations, although the dam was erected without right more than six years before the date of the writ; the court in that case saying: 'The ground taken by the defendants, that these suits are barred by the statute of limitations, cannot be maintained. A person who continues a nuisance is liable to successive suits, each continuance being a new nuisance; and therefore the plaintiff in these actions is entitled to recover for all damages accruing after the award above referred to, it being within six years of the date of his writs,'--citing Hodges v. Hodges, 5 Metc. (Mass.) 205. The same doctrine was announced in Wells v. New Haven & N. Co., 151 Mass. 46, 23 N.E. 724, and the question of permanency, upon which some of the courts have distinguished the cases, was discussed as follows: 'If the defendant's act was wrongful at the outset, as the jury have found, we see no way in which the continuance of its structure in its wrongful form could become rightful, as against the plaintiff, unless by release or grant, by prescription, or by the payment of damages. If originally wrongful, it has not become rightful merely by being built in an enduring manner.' And the court noticed the decision in Fowle v. New Haven & N. Co., supra, and distinguished it from the case it was then deciding by saying: 'The plaintiff [in that case] had brought a former action in which he expressly declared for prospective damages, and he was allowed by the court to recover them, apparently without any objection on this ground from the defendant; and if he had been allowed to hold his second verdict he would have got double damages, which clearly was not permissible. The decision of that case does not necessarily imply that an action must have been brought within six years, or, if it does, we cannot follow it.'

The case upon which appellant largely relies is that of City of North Vernon v. Voegler, 103 Ind. 314, 2 N.E. 821 and the opinion, having been written by Judge Elliott, who is recognized...