Gillam v. City of Centralia

• Decision Date: 21 August 1942
• Docket Number: 28710.
• Parties: GILLAM v. CITY OF CENTRALIA.
• Court: Washington Supreme Court

128 P.2d 661

14 Wn.2d 523

GILLAM v. CITY OF CENTRALIA.

No. 28710.

Supreme Court of Washington

August 21, 1942

Department 1.

Action by R. G. Gillam, as administrator of the estate of Sophia Gillam, against the City of Centralia for damage to realty by the construction of a railroad over-crossing. From a judgment for plaintiff, defendant appeals.

Affirmed.

Appeal from Superior Court, Lewis County; C. A Studebaker, judge.

Geo. C Ellsbury, of Centralia, for appellant.

J. O Davies, of Centralia, for respondent.

DRIVER Justice.

This is an action to recover compensation for damage to real property, by deprivation of access, light and air, caused by the construction of a viaduct, or overcrossing, to separate the grade of a certain street in the city of Centralia from the grade of an intersecting railroad. The court, after trial without a jury, entered findings, conclusions, and judgment in favor of the plaintiff; and defendant city has appealed.

In the lower court, by demurrer and by answer, the issue was raised that the action had not been commenced within the time limited by law. That is the principal question presented on the appeal. It has a dual aspect, namely, (1) what statute of limitations applies; and (2) when did the statute begin to run?

Respondent asserts that the action is governed by the three-year statute, while the appellant contends that the two-year catch-all statute is controlling. The two statutes in so far as we need consider them here, read as follows:

'Within three years:

'1. An action for waste or trespass upon real property; * * * '3. An action upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument; * * *.' Rem.Rev.Stat., § 159.

'An action for relief not hereinBefore provided for shall be commenced within two years after the cause of action shall have accrued.' Rem.Rev.Stat., § 165.

In support of its possition, appellant cites Denney v. Everett, 46 Wash. 342, 89 P. 934, 123 Am.St.Rep. 934; State ex rel. Whitten v. Spokane, 92 Wash. 667, 159 P. 805, and White v. King County, 103 Wash. 327, 174 P. 3--all of which held that the two-year statute of limitations applied to an action against a municipality for damage to abutting property resulting from a change in grade of a street or highway. They were cited and followed in the later case of Island Lime Co. v. Seattle, 122 Wash. 632, 211 P. 285. That was an action by a real property owner to recover for damage from slides caused by the removal of lateral support in the regrading of a city street. Each of the foregoing decisions was based upon the premise that the property owner's right of action against the municipality was one sounding in tort, and the court did not consider any portion of the three-year statute except subd. 1, relative to waste or trespass upon real property. As there had been no actual taking or direct physical invasion of the property, the court held that the action did not come within that subdivision, and therefore concluded that the three-year statute did not apply. In none of the cases did the court consider the applicability of subd. 3 of the three-year statute.

In Jacobs v. Seattle, 100 Wash. 524, 171 P. 662, L.R.A.1918E, 131, this court had held that a landowner's suit to recover compensation for damage resulting from the operation of an incinerator by a city was an action on an implied contract or liability within subd. 3. Judge Parker, the author of the opinion, pointed out very clearly that, when a city, in the exercise of its power of eminent domain, damages private property for public use, an action brought by the owner of the property against the city is not a tort action, but is based upon the implied promise of the city to compensate the owner, as the constitution expressly requires it to so.

Then subsequently, without mentioning Jacobs v. Seattle, both the White case and the Island Lime Company case followed the earlier tort theory decisions upon which appellant here relies. But all this was prior to the leading case of Wong Kee Jun v. Seattle, 143 Wash. 479, 255 P. 645, 52 A.L.R. 625. There, the city, in the regrade of one of its streets caused slide damage to adjacent property. It was held that the taking and damaging of such property was in contravention of the owner's constitutional rights, and that it was not necessary for him to file a claim for damages against the city as a condition precedent to suit, as he would have been required to do in an action based upon acts of the city of a tortious nature only.

Marshall v. Whatcom County, 143 Wash. 506, 255 P. 654, was decided at the same time as Wong Kee Jun v. Seattle, and Judge Tolman wrote the opinions in both cases. The Marshall case also was one in which property had been damaged by slides caused by the regrade of a city street, and the question arose as to whether the landowner's action came within the two-year or the three-year statute of limitations. Judge Tolman gave this concise and definite answer, at page 507 of 143 Wash., at page 654 of 255 P.:

'Those cases which apply the two-year statute are Island Lime Co. v. Seattle, 122 Wash. 632, 211 P. 285, and the cases there cited, which are based upon the tort theory, and since we held in the Wong Kee Jun case that the tort theoty cannot be applied in any case where the right invaded is protected by the Constitution, it follows logically that the three-year statute is the only one applicable. It was so held in Jacobs v. Seattle, 100 Wash. 524, 171 P. 662, L.R.A.1918E, 131, and we think that logically there is no escape from the conclusion that the two-year statute of limitations cannot be applied where the taking is by reason of the sovereign power, as held in the Wong Kee Jun case.'

In Docksteader v. Centralia, 3 Wash.2d 325, 100 P.2d 377, we held that the depriving of a landowner of access to his tract, by the construction of the identical viaduct involved in the present case, was a taking or damaging of private property within the constitutional inhibition. Since we have already decided in the Docksteader case that the taking or damaging now under consideration is one for which the constitution requires compensation to be made, it follows that, under the authority of Marshall v. Whatcom County, supra, the third subdivision of the three-year statute of limitations applies.

Having concluded that the three-year statute governs the case at bar, we shall now consider when the statute started to run. The viaduct, or over-crossing, was built pursuant to an agreement between appellant city, the state, and the railroad company, by the terms of which agreement the city undertook to furnish the necessary right of way. The actual construction was done by a private contractor under a contract with the state. The contract describes the work as '* * * clearing, grading, draining, surfacing with crushed stone and constructing a bituminous surface treatment and a reinforced concrete and steel overcrossing and treated pile and timber trestle, on City Street, Railroad Overcrossing on Sixth Street, in the City of Centralia, * * *.'

The viaduct runs east and west on Marion street, and the pile and timber trestle on the easterly approach extends across the entire southerly front of respondent's lot. Work was started by the contractor in July, 1936; the driving of the piling on the easterly approach was finished in September or early October; and all the concrete had been poured by April 2, 1937. The resident engineer of the state highway department testified that 'The bridge was entirely completed the 7th of May, 1937, * * *. Everything except some minor repairs * * *.' However, he also said that the approaches within the retaining walls were surfaced and oiled in the early part of June and were again treated with oil around the first of July. On cross-examination, the witness stated that the contract was completed July 2, 1937, and that the work was accepted by the state on July 21, 1937.

Another state highway department employee, an engineer-inspector on the work, testified that the bridge structure was completed around May 7, 1937, but, on cross-examination, in response to the question, 'The contract was not completed until at least July 2, 1937?' answered, 'That was the date of completion as far as our office was concerned, was July 2 1937.' He further testified it was quite possible...