Jacobs v. City of Seattle

• Citation: 171 P. 662,100 Wash. 524
• Decision Date: 12 March 1918
• Docket Number: 14266.
• Court: United States State Supreme Court of Washington
• Parties: JACOBS et ux. v. CITY OF SEATTLE.

171 P. 662

100 Wash. 524

JACOBS et ux. v. CITY OF SEATTLE.

No. 14266.

Supreme Court of Washington

March 12, 1918

Department 1. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Action by George Jacobs and wife against the City of Seattle. Judgment for plaintiffs, and defendant appeals. Affirmed.

Hugh M Caldwell and James A. Dougan, both of Seattle, for appellant.

Jay C Allen, of Seattle, for respondents.

PARKER J.

The plaintiffs Jacobs and wife seek recovery of compensation for damage to their real property, caused and to be caused by the defendant city of Seattle in the exercise of its power of eminent domain, the amount of which compensation had not been in any manner ascertained or determined prior to the commencement of this action. Trial in the superior court for King county sitting with a jury resulted in verdict and judgment awarding the plaintiffs compensation in the sum of $1,000, from which the city has appealed to this court.

This is the second appeal of this case to this court. The first appeal was taken by the plaintiffs from a judgment of the superior court dismissing the case upon sustaining the city's demurrer to the plaintiffs' complaint and their electing not to plead further. That appeal was disposed of by our decision reported in 93 Wash. 171, 160 P. 299, L R. A. 1917B, 329, reversing the judgment of the superior court and remanding the case to that court, holding that the first cause of action of the complaint alleged facts entitling them to recover though their second cause of action did not. The allegations of respondents' first cause of action are set out, in substance, in considerable detail in our former decision. We deem it sufficient here to state that it is therein alleged in substance that the city erected a garbage incinerator building and plant on a lot adjoining respondents' lot, upon which they have three dwelling houses; that the city has commenced and continues to operate its plant, causing to be brought to it large quantities of refuse and garbage which it burns therein, and in doing so causes damage to respondents' property, in that obnoxious vapors, steam, smoke, ashes, and pieces of partly burned garbage are thrown over and upon respondents' property which it threatens to continue to do, materially and permanently impairing its desirability and usefulness and lessening its value; and that the city has never acquired the right to so maintain and operate its incinerator, and thereby so damage respondents' property, by any condemnation proceeding looking to the ascertainment and payment of the damage so suffered by respondents. Upon the remanding of the case to the superior court, following the decision of this court, the city answered respondents' first cause of action, denying the allegation of damages therein made and pleading affirmatively that respondents' cause of action accrued more than three years prior to the commencement of this action, and is therefore barred by both the two-year and the three-year statutes of limitation.

The principal contention here made in the city's behalf, to which all other contentions worthy of serious consideration are incidental, is that respondents' right of recovery is barred by the statutes of limitation. It appears from the evidence, and is conceded, that the city built its incinerator building and plant more than three years prior to the commencement of this action. The city also began to operate its plant to some extent more than three years prior to the commencement of this action. It, however, became a question in the trial of the case, according to respondents' theory, which was adopted by the trial court, when the operation of the incinerator first became such as to result in actual damage to respondents' property. This question was accordingly submitted by the court to the jury for a special finding thereon in addition to its general verdict, and in response thereto a special verdict was returned by the jury with its general verdict, as follows:

'We, the jury, find that the damage to the plaintiffs' property by reason of the operation of the defendant's incinerator commenced in May, 1912.'

This action was commenced in November, 1914, which, it will be noticed, was 2 1/2 years after the commencement of respondents' damage, as found by the jury. The evidence is conclusive that the mere building of the city's incinerator building and plant did not and would not result in any damage to respondents' property, and the evidence amply sustains the special verdict, that the operation of the incinerator was not such as to damage respondents' property until May, 1912, when, as the jury might well conclude from the evidence, the really damaging operation of the incinerator commenced, though it had been operated to some extent prior to that time. This, we shall assume for the present, was when respondents' cause of action accrued, for the purpose of determining whether or not it was barred at the expiration of two years thereafter, as contended by counsel for the city.

Let us be reminded as we proceed that this is not an action seeking recovery of damages as for a tort committed by the city, but is an action to recover compensation for damages resulting from the operation of the incinerator by the city, which it is doing and avowedly intends to continue to do in the exercise of its power of eminent domain, in so far as resulting damage to respondents' property is concerned. Of course, if this were an action seeking recovery of damages for the commission of a tort, and treated as such by both respondents and the city, respondents' right of action would not be barred as to damages accruing within the statutory period immediately prior to the commencement of the action. Counsel for the city carefully avoid making defense upon any such theory, but adopt the eminent domain theory upon which respondents prosecute their claim for compensation, manifestly to make sure that there shall be but one recovery, if any be had by respondents, and also to the end that the statute of limitation may be invoked against respondents' claim as one entire claim of compensation for the acquiring by the city of the right to so continue to operate its incinerator in the future to the damage, if any, of respondents' property. In keeping with this theory of the nature of the case the trial judge instructed the jury, in substance, that respondents' compensation, if any be awarded them, is to be measured by the difference in the market value of their property immediately before and immediately after the commencement of the damage, a measure manifestly in this case applicable only to a single permanent damage to the freehold. Our decision upon the former appeal is in entire harmony with this theory of the case.

Counsel for the city contend that the limitation applicable to respondents' cause of action is that prescribed by section 165, Rem. Code, reading as follows:

'An action for relief not hereinbefore provided for shall be commenced within two years after the cause of action shall have accrued.'

While counsel for respondents contend that the three years prescribed for the commencement of the several kinds of action mentioned in section 159, Rem. Code, is applicable; relying upon subdivision 3 of that section, reading as follows:

'An action upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument.'

Does the obligation on the part of the city to pay the compensation here sought by respondents arise upon 'a contract or liability * * * implied,' within subdivision 3 of section 159 above quoted? We are of the opinion that it does; even though that subdivision relates only to contractual obligations, as seems to be held by our own and other decisions. Having in mind that the state has granted to the city the power of eminent domain, and that the city is manifestly maintaining and operating its incinerator, and intends to continue to do so as an exercise of that sovereign power in so far as thereby damaging respondents' property is concerned, and having in mind that the state from which the city acquired that power has by article 1, § 16, of its Constitution, guaranteed that, 'No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner,' it seems to us there is but little room for arguing that the city did not impliedly promise to pay to respondents compensation for such damage as might result from its continuing operation of its incinerator, at the time such operation actually commenced to damage respondents' property. If one appropriating my goods, though his act be purely tortious, he possessing no power of eminent domain, I may sue for and recover from him the value of them as for a sale thereof to him upon an implied promise by him to pay therefor, which is elementary law; by what sort of logic then can it be held that a city, possessing the power of eminent domain, taking or damaging my property, not tortiously but by claim of right under its power of eminent domain, does not impliedly promise to compensate me therefor as guaranteed by the sovereign state from which the city acquired the very power it assumed to exercise in taking or damaging my property? Such has been held to be the nature of such an obligation by the highest court in our land.

In United States v. Great Falls Mfg. Co., 112 U.S. 645 5 S.Ct. 306, 28 L.Ed. 846, there was involved the taking of private property, land, and water rights by the government in connection with the construction of a waterworks dam in the Potomac river, without condemnation proceedings, and the seeking of compensation therefor by the...