Muskatell v. City of Seattle

• Decision Date: 25 August 1941
• Docket Number: 28337.
• Citation: 10 Wn.2d 221,116 P.2d 363
• Parties: MUSKATELL v. CITY OF SEATTLE.
• Court: Washington Supreme Court

116 P.2d 363

10 Wn.2d 221

MUSKATELL v. CITY OF SEATTLE.

No. 28337.

Supreme Court of Washington

August 25, 1941

Department 2.

Action by Morris Muskatell against the City of Seattle, a municipal corporation, to recover damages to plaintiff's building claimed to have resulted from construction of a sewer by defendant in front of plaintiff's property. From an order granting defendant's motion for new trial after a jury had returned a verdict for plaintiff, plaintiff appeals.

Reversed with instructions.

Appeal from Superior Court, King County; William J. Wilkins, judge.

Stevenson & Gershon, of Seattle, for appellant.

A. C. Van Soelen, John A. Logan, and Tom M. Alderson, all of Seattle, for respondent.

JEFFERS Justice.

This is an appeal by plaintiff, Morris Muskatell, from an order made and entered by the superior court for King county, granting the motion of defendant, City of Seattle, for a new trial, upon the specific ground that the court erred in giving instructions Nos. 7, 8 and 9, and in refusing to give defendant's requested instructions Nos. 4, 6, 7 and that portion of No. 8 not contained in instruction No. 10 as given.

This action, predicated upon § 16, of article I, of the state constitution, was instituted by plaintiff against the city of Seattle, to recover damages to plaintiff's building, claimed to have resulted from the construction of a sewer, by the city, in front of plaintiff's property.

The complaint alleges that prior to June, 1938, the city determined that it would construct a trunk sewer on East Marginal Way, extending along the westerly side of the street; that pursuant to such determination, the city retained the Queen City Construction Company to do the necessary excavation and construction work; that on or about June 14, 1938, the Construction Co. commenced work in front of plaintiff's property; that this work was all done and performed under the direct supervision, inspection and direction of the city's engineer; that as the proximate result of the construction of the sewer, a subsidence in the soil and earth upon plaintiff's property and beneath his building occurred, resulting in the sinking of the concrete floor in his building and in the cracking and twisting thereof.

The amended answer admitted that the work was done under the direct supervision, inspection and direction of the city, and denied the allegations as to the damage, if any, to plaintiff's building, by the construction of the sewer.

As a first affirmative defense, defendant alleged that the work was done in accordance with the approved and up-to-date engineering and sanitary practices.

It is alleged in the second affirmative defense that the injuries, if any, sustained by plaintiff were caused by his own contributory negligence, in that his building was constructed on soil that was largely of filled-in sand, and is located on the old tideland area, which is subject to the inflow and outflow of the tidal waters and underground percolating waters daily; that plaintiff, knowing of this condition, erected his building without proper foundation, and after having erected his building, plaintiff further aggravated the improper construction by storing great quantities of canned salmon upon the floors, and driving heavily loaded trucks over the floor, all of which caused the building to subside and cracks to appear in the floor; that all of these acts were the proximate cause of the subsidence of the building and the damage claimed by plaintiff.

Third, fourth and fifth affirmative defenses were also set up in the answer, but in view of the action taken by the trial court, the allegations contained in those affirmative defenses are not material herein.

The material facts may be stated as follows: Plaintiff's property, a one-story frame building, sheeted with corrugated iron, and used as a fish reconditioning warehouse, is located on the tide flats. The land upon which the building stands is similar to that throughout the entire tideland area. About six feet below the surface, the soil, composed mostly of sand, is impregnated with what is described as percolating waters. This water originates from rainfall upon the surrounding area, especially on Beacon hill, and seeps underground towards the Duwamish river and the sound.

Under plaintiff's property, as well as under other property in the district, is a water table, which rises when the tide is in, and lowers when the tide is out. When the tide is in, it serves as a dam to check the flow of this ground water, causing the ground to swell, and as the tide goes out and this underground water is allowed to flow, the ground subsides. This ground water is fresh water, and not tidal waters. Engineers and contractors, testifying for plaintiff, stated that while the sewer was being constructed in front of plaintiff's property, they saw sand, mud and water coming into the sewer excavation through the cribbing at the side of the excavation, and coming in from the bottom of the trench from under plaintiff's building.

Plaintiff and other witnesses testifying in his behalf stated that the cracks in the floor were not there prior to the construction of the sewer, and these witnesses further testified that in their opinion, the sinking of the floor, the cracks in the floor, and the injury to the building, for which damages were asked, were caused by the sand, silt and water which was forced out from under plaintiff's building into the sewer trench.

Mr. Lennox, one of the operators of the reconditioning plant, testified that while the work on the sewer was progressing, he observed a settling of the building and the development of cracks in the floor; that he notified the engineer in charge of construction, and the engineer inspected the damage and informed him that he would take care of the matter at once.

Mr. Klaeboe, another of the operators of the reconditioning plant, testified that he notified the construction people of the damage; that he saw the sewer during construction, and that sand, silt and water were entering the sewer trench through the sidewalls and from the bottom; that the city had a large pump in the trench which pumped this sand, silt and water out of the ditch.

The city admits that in digging the sewer trench they affected the underground water, and withdrew the same to some extent from the surrounding area.

Defendant's witnesses testified that there was very little, if any, sand or silt coming into the trench through the cribbing driven along the sides of the ditch, but that water was coming up from the bottom of the ditch. One witness testified that only water was coming into the ditch. The expert witnesses for the city testified to the effect that the trench in front of plaintiff's property was dug in accordance with good engineering practice, and that there is no practical method of digging a trench in ground of the nature here encountered, without having water in the bottom thereof.

Mr. Breen, engineer in charge of this work for the city, testified that the ditch was seventeen feet deep; that they struck water at about six feet, and for the remaining eleven feet they were in wet soil and water all the time.

Mr. Sylliaasen, an engineer of long experience, testifying for the city, stated that in his opinion '* * * the cracks in the warehouse floor were caused by settlement in the sand below this structure due to the fact that there was not a foundation under the building which will prevent settlement and that the load which caused the settlement was the dead weight of the building plus loads placed on the building on the floor at various times in years gone past.'

This witness further testified that in his opinion, based on his examination of the building and known facts in engineering, this building settled and cracked from the day it was constructed.

The trial court gave, among others, instructions Nos. 7, 8, 9 and 10, which read, respectively, as follows:

'7. You are instructed that § 16, of Article I, of our state constitution provides as follows:

"No private property shall be taken or damaged for public or private use without just compensation having been first made.'

'This constitutional provision fixes liability for any physical damage to property, through excavation or construction work carried on at or near the damaged property in question, regardless of whether the damage is caused with or without negligence.

'Therefore, if you find that the plaintiff's property was damaged by reason of the construction of the trunk sewer or the excavation work incidental thereto, as carried on by the defendant's contractor, your verdict must be for the plaintiff.

'8. You are instructed that it is not necessary for plaintiff in this action to allege, or prove, that the defendant was guilty of negligence. Every land owner is entitled to have the soil of his land maintained in its natural condition, and the right of the adjacent land owner, including the rights of a city in grading and excavating for a sewer, to excavate on his own land, is subject to the restriction that he, or it, must not remove the earth so near to the land of his neighbor, that his neighbor's soil will give way or slide by its own weight; and so if you find that as the proximate result of the act of the defendant in excavating for a sewer adjacent to the plaintiff's property, the soil of plaintiff's property gave way and moved, and as the result of such moving and giving way of the soil, the land or the building of the plaintiff was damaged, then your verdict should be for the plaintiff.

'9. You are instructed that the city of Seattle is not charged in law with the duty to provide drainage for seepage or surface water, and that the defendant city is not liable

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