Farnandis v. Great Northern Ry. Co.

• Decision Date: 29 January 1906
• Citation: 84 P. 18,41 Wash. 486
• Parties: FARNANDIS et al. v. GREAT NORTHERN RY. CO. et al.
• Court: Washington Supreme Court

84 P. 18

41 Wash. 486

FARNANDIS et al. v. GREAT NORTHERN RY. CO. et al.

Supreme Court of Washington

January 29, 1906

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

Consolidated actions by S. C. Farnandis and others against the Great Northern Railway Company and another. From judgments in favor of plaintiffs, defendants appeal. Reversed.

L. C. Gilman, for appellants.

McCafferty & Bell, A. Jurish, and Allen, Allen &amp Stratton, for respondents.

MOUNT C.J.

The respondents are the owner of a ground lease of lot 2 in block 6 of Denny's Fourth addition to Seattle. They have erected and own two brick buildings thereon, which buildings are leased and used for lodging and hotel purposes. One of these buildings is known as the 'Lotus Building,' and the other as the 'Pleasanton Building.' The respondents Farnandis and wife and Hamm own the whole of the Pleasanton Building and an undivided one-half of the Lotus Building. The respondents Morris and wife own an undivided half of the Lotus Building. In the years 1903-04 the appellant railway companies constructed a tunnel underneath said city of Seattle, for use for railway purposes. This tunnel is about one mile in length and of varying depth from the surface. It was constructed in part under property belonging to the said railway companies, in part under private property through which an easement had been acquired, and in part under streets and alleys of the city; a franchise having been granted by the city permitting the same to be done. The tunnel in its course passes within about 120 feet of lot 2, whereon respondents' buildings are situated. The following is a sketch showing the relation of respondents' property to the tunnel; also showing the position of the tunnel in this vicinity constructed under a public street, the portion under the property of the railway companies, and the portion under property through which said companies have an easement:

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The surface of the ground on which respondents' buildings stand is some higher than the surface over the tunnel; the land between the buildings and the tunnel being a side hill. Respondents' buildings had been constructed for about two years prior to the time the tunnel was constructed, and were in a solid and substantial condition until the time of the construction of the tunnel. When the tunnel was being constructed in the immediate vicinity of the buildings, it became necessary to use large charges of dynamite and giant powder to blast out the rock and gravel deposits in the tunnel. These blasts caused the buildings to shake so that occupants would not remain therein. Large cracks also opened up in the earth between the tunnel and the buildings, and caused the buildings to crack. A settling of the earth caused a partial collapse of the buildings and much damage thereto. Separate actions were instituted by respondents against appellants. Respondents Farnandis and wife and Hamm alleged in their complaint that the construction of the tunnel through and under the property adjacent to the said buildings caused the earth to sink settle, and subside; and thus occasioned the settlement and partial collapse of the buildings. They allege damages in the sum of $20,000. The respondents Morris and wife alleged in their complaint that, by reason of the manner of construction of the tunnel, the lot was caused to settle and sink and the buildings caused to partially collapse, to their damage in the sum of $10,000. The answer to each fo these complaints was a general denial. By the consent of all the parties, the two causes were consolidated and tried together to the court and a jury. A verdict was returned in favor of Farnandis and wife and Hamm for $7,175, and in favor of Morris and wife for $3,675. The railway companies have appealed from a judgment entered upon the verdict.

The first question presented in the briefs is whether or not under the pleadings and the evidence, the respondents were entitled to recover damages to their buildings, occasioned by the excavation made by appellants in the land adjacent to that whereon the buildings were located. No negligence was claimed against the appellants, either in the pleadings or the evidence; respondents' position being that, if the excavation made by appellants in their own land, or in the lands whereon they had a license to make excavations, were made in such a manner as to cause a subsidence of the soil of respondents' lands, whereby the buildings were caused to settle and crack and be injured, the appellants were liable, notwithstanding their work had been performed in the most careful and prudent manner. This contention was sustained by the trial court, and evidence was received and the jury were instructed upon that theory. Appellants cite numerous authorities to the point that the right to lateral support applies only to the land itself, and not to buildings or other artificial structures thereon; and the weight of authority seems to be that, where one person excavates on his own land in a careful and prudent manner, he is not liable for consequential damages accruing to his neighbor. But this rule is modified to this extent: 'An adjoining owner excavating on its own land is subject to this restriction, that he must not remove the earth so near to the land of his neighbor that his neighbor's soil will crumble away by its own weight and fall upon his land. But this right of lateral support extends only to the soil in its natural condition. It does not protect whatever is placed upon the soil increasing the downward or lateral pressure. If it did, it would put it in the power of a lot owner, by erecting heavy buildings on his lot, to greatly abridge the right of his neighbor to use his lot. It would make the rights of the prior occupant greatly superior to those of the latter.' Northern Transportation Co. v. Chicago, 99 U.S. 635, 25 L.Ed. 336. The rule is firmly established that: 'Every owner of real estate is entitled to have the soil preserved and supported in its natural condition, and the privileges of adjoining owners are so far limited that they may not so excavate or otherwise change the position of their land as to leave that of their neighbor less firmly supported.' 1 Am. & Eng. Enc. of Law (2d Ed.) p. 229; Larson v. Metropolitan Street Ry. Co., 33 Am. St. Rep. 450, and note. 'Nor is his liability in any wise dependent upon the degree of skill or care which he exercises.' Freeman's note to Larson v. Railway Co., supra; Baltimore, etc., R. Co. v. Reaney, 42 Md. 117; Schultz v. Bower (Minn.) 59 N.W. 631, 47 Am. St. Rep. 630; Gilmore v. Driscoll, 122 Mass. 199, 23 Am. Rep. 312. In order that these rules may stand together and not be inconsistent, it must follow that, when soil is removed from its natural position by one owner and the soil of an adjoining owner is thereby permitted to fall, such result is not a consequential damage, but is a direct injury.

In the case of Parke v. Seattle, 5 Wash. 1, 31 P. 310, 32 P. 82, 20 L. R. A. 68, 34 Am. St. Rep. 839, this court held that the city was liable for damages caused by grading the street, whereby lands abutting on the street were deprived of their lateral support. In the case of Brown v Seattle, 5 Wash. 35, 31 P. 313, 32 P. 214, 18 L. R. A. 161, which was a case where an order was made restraining the city from grading a street in front of Mrs. Brown's property until the damage which would be caused by such grade was first ascertained and paid, this court held an injunction was proper, and in the opinion said: 'But the main question is, admitting the fact of injury, would the respondent be entitled to compensation from the city? Previous to the adoption of the Constitution she would have been without remedy, excepting for such injury as might have occurred to the land alone, arising from the withdrawal of support and its consequent actual falling in, or from the negligence of the city in doing the work. But the Constitution of this state (article 1, § 16) provides that no private property shall be taken or damaged for public or private use without just compensation having been first made or said into court for the owner, and it is upon this prohibition that the respondent bases her right to an injunction. The earlier Constitutions of the several states in the Union contained, with but few exceptions, a provision that private property should not be taken for public use without just compensation. * * * After almost 20 years of discussion and decision in Illinois and other states, we put the words 'taken or damaged' into our Constitution, and they must have their effect. * * * It is now too late to urge this argument (i. e. the word 'damage' gave no additional or greater security to the appropriator for public use) against the recovery of such damages as are threatened to be caused by the action of the city of Seattle here in question. Every court in which the point has been raised has decided in favor of the private citizen; but, were it now presented to us for the first time in the history of the phrase, we should not be disposed to view it in any way different from that expressed in the cases we have cited. If private property is damaged for the public benefit, the public should make good the loss to the individual. Such always was the equity of the case, and the Constitution makes the hitherto disregarded equity now the law of it.' In the case of Peters v. Lewis, 33 Wash. 617, 74 P. 815, which was an action for damages by reason of drainage from defendant's adjoining premises, this court...