Golden Eagle Min. Co. v. Imperator-Quilp Co.

• Decision Date: 26 December 1916
• Docket Number: 13492.
• Citation: 161 P. 848,93 Wash. 692
• Parties: GOLDEN EAGLE MINING CO. v. IMPERATOR--QUILP CO. et al.
• Court: Washington Supreme Court

161 P. 848

93 Wash. 692

GOLDEN EAGLE MINING CO. v. IMPERATOR--QUILP CO. et al.

No. 13492.

Supreme Court of Washington, En Banc.

December 26, 1916

Appeal from Superior Court, Ferry County; E. K. Pendergast, Judge.

Action by the Golden Eagle Mining Company against the Imperator-Quilp Company and others. Judgment of dismissal on demurrer to the complaint, and plaintiff appeals. Affirmed.

A. J Langhon and Le Roy McCann, both of Republic, for appellant.

Voorhees & Canfield, of Spokane, for respondents.

PARKER J.

As we proceed we think it will appear that this is nothing more than an action to recover damages resulting from trespass upon real property, though counsel for the plaintiff insist that it is, in substance, an action for relief upon the ground of fraud. The defendants demurred to the plaintiff's complaint upon the ground that it appears from the allegations thereof that the action has not been commenced within the time limited by law. This demurrer being sustained by the trial court and the plaintiff electing to not plead further, judgment of dismissal was rendered, from which it has appealed to this court.

The facts as alleged in the complaint may be summarized as follows: Appellant and respondents are the owners of adjoining mining claims in the Eureka mining district of Ferry county. Between September 15, 1910, and August 20, 1912, in their mining operations upon their claim respondents exposed and developed their vein or lode of ore to a point of intersection of the same with the boundary line between the two claims to a depth of between 300 and 500 feet below the surface of the ground, and knowingly wrongfully, entered upon and into appellant's claim at that point, and extracted and removed ore therefrom of the value of several thousands of dollars. There were no underground workings of any character upon appellant's claim, and it did not discover, nor have any means of discovering, respondents' wrongful removal of the ore until December 15, 1912. On December 3, 1915, over three years after the wrongful removal of the ore from appellant's mine, but less than three years after its discovery thereof, appellant commenced this action in the superior court for Ferry county, seeking recovery of the value of the ore so wrongfully removed.

The only question here presented is as to when the statute of limitations commenced to run against appellant's right to recover; that is, when did appellant's cause of action accrue within the meaning of our statute? The portions of our statute here necessary for us to notice read as follows:

'Action can only be commenced within the periods herein prescribed after the cause of action shall have accrued except when in special cases a different limitation is prescribed by statute. * * *

'Within three years.--1. An action for waste or trespass upon real property. * * * 4. An action for relief upon the ground of fraud, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud. * * *'

'Sections 155, 159, Rem. 1915 Code.

We have a number of other special provisions providing for suspension of the statute in certain specified cases, but none of such provisions come as near touching the question of such suspension of the commencement of the running of the statute in this case as does subdivision 4 of section 159, above quoted, relating to actions for relief upon the ground of fraud. The fact, however, that there are these several special provisions limiting the commencement of the running of the statute in certain cases to a time after the actual accrual of the cause of action is of interest in our present inquiry, in that they evidence a legislative intent to do away with all other exceptions to the general rule that statutes of limitation commence to run upon the accrual of the cause of action, that is, upon the arrival of the time when the plaintiff has a right to sue regardless of his knowledge of such right.

It is argued in appellant's behalf that this is an action for relief upon the ground of fraud, and that therefore the statute did not commence to run against appellant's right to sue until it discovered its loss caused by respondents' wrongful removal of the ore. It seems to us that this contention has been logically answered in our recent decisions in Cornell v. Edsen, 78 Wash. 662 139 P. 602, 51 L. R. A. (N. S.) 279, and Thomas v. Richter, 88 Wash. 451, 153 P. 333. The Edsen Case was one for damages against an attorney for wrongfully voluntarily dismissing an action, concealing the fact and leading his client to believe that his case had been decided against him upon the merits. This was held not to be...