Great Northern Ry. Co. v. State

• Decision Date: 10 May 1918
• Docket Number: 14370.
• Court: Washington Supreme Court
• Parties: GREAT NORTHERN RY. CO. v. STATE.

173 P. 40

102 Wash. 348

GREAT NORTHERN RY. CO. v. STATE.

No. 14370.

Supreme Court of Washington, En Banc.

May 10, 1918

Appeal from Superior Court, Thurston County; D. F. Wright, Judge.

Action by the Great Northern Railway Company against the State of Washington. Verdict for plaintiff for part of the amount claimed, and from the judgment, and an order denying new trial, plaintiff appeals; and the State prosecutes cross-appeals from orders overruling demurrer to complaint and denying motion for judgment notwithstanding the verdict. Reversed on plaintiff's appeal, and remanded for new trial.

F. V Brown and F. G. Dorety, both of Seattle, for appellant.

W. V Tanner, Atty. Gen., and Glenn J. Fairbrook, of Olympia, for the State.

HOLCOMB J.

Plaintiff brought this action under the constitutional provision to recover compensation for damage done by the state to plaintiff's track, which resulted from the construction of a state highway. The damage complained of occurred along a stretch of two miles at the base of Chuckanut Mountain, a few miles south of Bellingham. The railroad track is located along the shore at the base of the mountain, and the water front road of the Pacific Highway, which was constructed by the state in 1914, 1915, and 1916, was built upon the hillside, approximately parallel with, and from 125 to 175 feet above, the railroad track. The hillside consists of a thin layer of top soil over a foundation of solid rock. On account of the steepness of the bluff, it was necessary to blast out a shelf for the highway and to dump material on the hillside and railroad track below. This caused slides obstructed the track, bent rails, damaged ties, poles, and wires, and delayed trains, for which plaintiff claims an expenditure of $16,715.53 and an estimated sum of $25,000 to protect against imminent danger of further damage from slides caused by deposits and impaired drainage.

Every effort was made to avoid unnecessary damage. Extra rails and ties were provided in advance, flagmen were stationed at the danger zones, a special telephone was installed, and the contractor's men employed upon the state highway always helped to clear the track, working in company with the railway section crew. Notwithstanding these precautions, the plaintiff in two years, during the construction of the highway, was forced to expend $15,576.80 in replacing the rails and equipment, removing slides and débris, paying train crews during periods of delay, providing flagmen, etc. Of this sum bills amounting to $1,139.22 were paid by the state. A written stipulation was filed, covering the amount of expenditures, to which was attached itemized bills, showing the amounts claimed for train delays, labor, rental of equipment, and other items. It was stipulated that these items were actually expended in connection with material which fell upon the railroad track, but it was denied that the falling of the material upon the track was caused by the highway construction, or that the state was responsible therefor.

The state's demurrer to the complaint, and motion for judgment non obstante veredicto, were overruled, and the state has cross-appealed from the orders overruling the demurrer, and denying its motion for judgment non obstante veredicto. A verdict was returned in favor of the plaintiff in the sum of $7,391.34. The plaintiff moved for new trial, on the ground of errors in instructions and in admission of evidence, which motion was denied, and judgment entered on the verdict. Plaintiff appeals from the judgment and order denying a new trial.

The plaintiff's theory is that in inflicting the damage the state acted in its sovereign capacity, that it was necessary for the accomplishment of a public object, and that plaintiff is entitled to just compensation under Const. art. 1, § 16. The fact that the state did not condemn plaintiff's property in advance does not absolve it from liability, where no negligence is charged in the performance of a governmental duty. Kincaid v. Seattle, 74 Wash. 617, 134 P. 504, 135 P. 820. The constitutional provision must have been intended to protect all the essential elements of ownership which make property valuable. Among these elements is fundamentally the right of user, including, of course, the corresponding right of excluding others from the use. A physical interference with the land, which substantially obstructs this right, takes the plaintiff's property to just so great an extent as it is thereby deprived of its right. To deprive one of the use of his property is depriving him of his property; and the private injury is thereby as completely effected as if the property itself were physically taken. Accordingly it has been held that any use of land for a public purpose, which inflicts an injury upon adjacent land, such as would have been actionable if caused by a private owner, is a taking and damaging within the meaning of the Constitution.

Nevins v. City of Peoria, 41 Ill. 502, 89 Am. Dec. 392, lays down the principle with which we are in accord:

'Neither state nor municipal government can take private property for public use without due compensation, and this benign provision of our Constitution is to be applied by the courts whenever the property of the citizen is invaded, and without reference to the degree. * * * The same law that protects my right of property against invasion by private individuals must protect it from similar aggression on the part of municipal corporations. A city may elevate or depress its streets, as it thinks proper; but if, in so doing, it turns a stream of mud and water upon the grounds and into the cellars of one of its citizens, or creates in his neighborhood a stagnant pond that brings disease upon his household, upon what ground of reason can it be insisted that the city should be excused from paying for the injuries it has directly wrought? It is said that the city must grade streets and direct the flow of waters as best it can for the interests of the public. Undoubtedly; but, if the public interest requires that the lot of an individual shall be rendered unfit for occupancy, either wholly or in part, in this process of grading, or drainage, why should not the public pay for it to the extent to which it deprives the owner of its legitimate use? Why does not the constitutional provision apply as well to secure the payment for property partially taken for the use or convenience of a street as when wholly taken and converted into a street? Surely the question of the degree to which the property is taken can make no difference in the application of the principle. To the extent to which the owner is deprived of its legitimate use, and in so far as its value is impaired, to that extent he should be paid.'

It is contended by the state that a suit against it to recover for damages will not lie, and that the damage herein involved is not for a public use, within the meaning of the constitutional provision requiring compensation. We cannot accede to this contention; for, it the state could have condemned the right to inflict the necessary damage or invade plaintiff's property, its failure to so condemn is not an excuse to deny plaintiff's recovery. Kincaid v. Seattle, 74 Wash. 617, 134 P. 504, 135 P. 820; Provident Trust Co. v. Spokane, 75 Wash. 217, 134 P. 927.

When taking private property for a public use, the state acts in its sovereign capacity. Gasaway v. Seattle, 52 Wash 444, 100 P. 991, 21 L. R. A. (N. S.) 68. 'It goes not as a trespasser, inspired by selfish or unlawful motive, but as one taking without malice or intent to do wrong, and presumptively for the public good. It cannot put on the cloak of a tort-feasor under the statute if it would. It cannot plead a willful wrong to defeat a just claim. * * * The action for damages for land taken without compensation is usually spoken of and is in its nature one of trespass; but it is not...