Jacobs v. City of Seattle

• Decision Date: 11 October 1916
• Docket Number: 12993.
• Citation: 93 Wash. 171,160 P. 299
• Court: Washington Supreme Court
• Parties: JACOBS et ux. v. CITY OF SEATTLE.

160 P. 299

93 Wash. 171

JACOBS et ux. v. CITY OF SEATTLE.

No. 12993.

Supreme Court of Washington

October 11, 1916

Department 1. Appeal from Superior Court, King County; John E Humphries, Judge.

Action by George Jacobs and wife against the City of Seattle. From judgment dismissing the action after plaintiffs' refusal to amend the complaint when demurrer thereto was sustained plaintiffs appeal. Reversed in part, and remanded, with leave to answer.

Jay C Allen, of Seattle, for appellants.

Jas. E. Bradford and William B. Allison, both of Seattle, for respondent.

FULLERTON J.

This is an action by George Jacobs and Theresa Jacobs, his wife, against the city of Seattle for damages to their residence property by reason of the construction and operation on an adjoining lot of an incinerator for the purpose of burning and destroying city garbage. The appeal is based upon the alleged error of the court in sustaining a demurrer to the complaint, and in entering judgment dismissing the action on plaintiffs' refusal to amend.

The respondent interposes a motion to dismiss the appeal because the record does not disclose the opening statement made by counsel for appellants. This is thought to be material because of the admissions therein contained on which the respondent moved for judgment. It appears, however, that the respondent had answered to the complaint, and on the court's intimation that a demurrer to the complaint would be the better method of attack, the respondent obtained leave to withdraw the answer and file a demurrer to the complaint. It is sufficient answer to the motion to dismiss to say that the preliminary proceedings were merged in the final attack presented by way of demurrer, and that the appeal is from the order of the court on the demurrer. The record is ample for the presentation of the sufficiency of the complaint, which is the sole question before us. The motion is denied.

The complaint for a first cause of action alleged that appellants are the owners of lot 3, block 4, McNaught's third addition to the city of Seattle, Wash.; that respondent, prior to the 5th day of May, 1913, installed upon property abutting and adjoining appellants' lot on the south an incinerator for the purpose of burning up and disposing of the garbage and refuse of the respondent city, which are brought to said incinerator from different portions of the city in open wagons; that the wagons pass alongside of appellants' property and frequently stand along its east line; that such wagons give forth noxious odors and are disgusting and sickening to the sight and senses; that said refuse and garbage are burned in said incinerator, by reason of which smoke, steam, and vapors arise and permeate the air, noxious to the smell and other senses, which said odors are sickening, disgusting, and unbearable, and tend to, and will, cause sickness and disease to those forced to smell and inhale the same; that from such incinerated garbage and refuse, ashes, and unburnt portions are carried out and dumped in close proximity to appellants' home; that the said refuse is composed mainly of decomposed and partly burned matter, which emits strong, disagreeable, and noxious odors, detrimental to the health, peace, and comfort of appellants and of any one living or being upon appellants' property; that during the process of incineration a large amount of cinders and ashes is carried up into the air and precipitated upon the property of appellants, covering appellants' home and yard and surrounding property; that by reason of the operation of said incinerator flies congregate in great numbers upon and about appellants' home and in and about their house and other houses which they have upon said property, thereby breeding disease and filth and rendering the occupancy of appellants' property disagreeable to the senses and dangerous to health; that respondent maintains an inclined roadway leading from said incinerator and alongside of appellants' property, which is unsightly and unseemly, and which lessens the value of their property; that at no time has respondent ever condemned the property of appellants, nor brought suit to fix the damage thereto, because of the erection, maintenance, and operation of said incinerator, but has installed same without paying, or having first fixed and ascertained by a jury, the damages to appellants; that by reason of the facts and conduct and uses aforesaid, appellants have been greatly damaged, and the value of their property has been and is constantly being lessened and will permanently continue to be lessened, to their damage in the sum of $7,000.

For a second cause of action, it is alleged that the incinerator is negligently and carelessly maintained; that it constitutes a nuisance; that by reason of its maintenance large quantities of garbage, rubbish, refuse, and trash are carried to, and burned in, said incinerator, causing a large amount of cinders, ashes, and dust, disagreeable and noxious odors, stench, and gases to arise therefrom and permeate the atmosphere in the vicinity of appellants' premises to such an extent as to be a menace and danger to the health of appellants and to persons occupying their property; that respondent carelessly causes and permits a large amount of ashes, cinders, and débris and partially burned animal matter to accumulate around said incinerator, and to be blown and carried over appellants' property, causing it to be covered with cinders, ashes and dust; that respondent has built an inclined roadway alongside appellants' property, leading from the ground up into said incinerator, over which is being hauled garbage, refuse, ashes, and débris, from which noxious and vexatious odors arise, and which is unsightly and detrimental to the property of appellants; that appellants have upon their property three houses for rental purposes, from which they might derive an income, but that they are untenanted and uninhabitable, and appellants are and will be unable to derive any income therefrom; that said damage is a continuing one, and the value of their property has been greatly injured, lessened, and destroyed. The further alleged that on May 5, 1913, within 30 days after said damages first accrued, they presented their claims in writing to the respondent city, and again on April 2, 1914, presented a further and additional claim, both of which the city disallowed. Appellants demanded judgment for $7,000.

The first cause of action is based upon the guaranty of article 1, § 16, of the state Constitution, which provides that no property shall be taken or damaged for public or private use without just compensation. The second cause of action is based upon the negligent operation of the incinerator plant in a manner which causes it to be a nuisance. Respondent's attack on the sufficiency of the complaint is founded on its contention that the city in the disposal of garbage is discharging a governmental as distinguished from a corporate duty, and hence would not be liable for resulting damages of any character. The only question for determination is: Does the complaint state a cause of action on either court? It may be conceded that the construction and operation of an incinerator by the city of Seattle for the disposal of garbage was a lawful exercise of municipal power under the delegation of authority granted by virtue of state legislation. But the lawfulness of the power would not warrant its exercise in such a way as to breach any constitutional guaranty for the protection of the citizen. The disposal of garbage may be a proper governmental function, granted by legislative enactment; but, conceding it to be so, the function must be exercised with due regard to constitutional limitations. Our Constitution (article 1, § 16) explicitly provides that private property shall...