Island Lime Co. v. City of Seattle

• Decision Date: 28 December 1922
• Docket Number: 17159.
• Citation: 122 Wash. 632,211 P. 285
• Court: Washington Supreme Court
• Parties: ISLAND LIME CO. v. CITY OF SEATTLE.

211 P. 285

122 Wash. 632

ISLAND LIME CO. v. CITY OF SEATTLE.

No. 17159.

Supreme Court of Washington, En Banc.

December 28, 1922

Appeal from Superior Court, King County; Otis W. Brinker, Judge.

Action by the Island Lime Company against the City of Seattle. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Walter F. Meier and Edwin C. Ewing, both of Seattle, for appellant.

Byers &amp Byers, of Seattle, for respondent.

TOLMAN J.

In this action respondent sought a judgment in damages based upon the rental value of a certain tract of land situated on the east side of Fifth avenue between Yester way and Terrace street in the city of Seattle, for a period ending June 30, 1921 alleging that the property had become unusable through the action of the city in removing its lateral support, and not restoring the same, thus causing a continuing nuisance.

The case was tried to the court, and resulted in a judgment in respondent's favor for $8,100, being based upon a rental value of $75 per month for the period indicated.

Appellant felling itself aggrieved has appealed and raises here three questions: (1) That the wrong measure of damages was applied (2) the statute of limitations; and (3) that the matters involved have already been adjudicated.

Taking up these questions in the order named, it appears from a reading of the evidence, beyond question, that this was a continuing damage. The city in 1911 regraded the street upon which the property fronts, and in so doing removed its lateral support, and ever since that time the surface of the lot has been unstable and continued to slide into the street, from whence the city has removed, to a greater or less extent, the débris so as to keep the street open for travel. This condition caused the destruction of the building which was upon the lot at the time of the regrade.

In 1912 respondent brought an action against the city claiming damages in the sum of $38,250, being $20,000 for the destruction of the building, $10,000 damages to the lot $6,000 as loss of rentals, and $2,250 spent in an attempt to prevent the destruction of the building. In that action respondent recovered a judgment for $7,500, based on a general verdict of a jury for that amount, and it may be assumed that some portion of the amount recovered was awarded because of loss of rentals. The present action was commenced in June, 1916. Since this was a continuing damage, which the city might, by a restoration of the lateral support, have ended at any time, if such a course were practicable, it is apparent that the ordinary measure of damages for which the city now contends could not be applied. Had respondent sued for the difference in value of the property before the lateral support was removed and after, it would have been impossible to prove that the city might not at some future time restore the lateral support, and consequently any verdict or judgment arrived at would be the result of guess or speculation as to how long the then condition would remain unchanged, and, if the recovery was based upon the supposition that the city would never restore the lateral support, then it would thereby be denied the right to mitigate the damages. Moreover, the damage being a continuing one, and a new cause of action accruing from day to day or month to month, it is ...