Neely v. City of Seattle
| Decision Date | 03 January 1920 |
| Docket Number | 15473. |
| Citation | 186 P. 880,109 Wash. 266 |
| Court | Washington Supreme Court |
| Parties | NEELY et al. v. CITY OF SEATTLE. DOLAN et al. v. SAME. |
Department 2.
Appeal from Superior Court, King County; Boyd J. Tallman, Judge.
Two actions, one by Amanda Neely and others, the other by Michael Dolan and others, against the City of Seattle. Judgments for plaintiffs, and defendant appeals. Reversed and remanded as to Neely; affirmed as to Dolan.
Walter F. Meier, Corp. Counsel, and Edwin C. Ewing, Asst. Corp. Counsel, both of Seattle, for appellant.
Revelle & Revelle and Walter A. Keene, both of Seattle (Lucas C Kells, of Seattle, of counsel), for respondents.
These two actions were brought by the plaintiffs independently to recover damages from the city of Seattle by reason of the alleged negligence of the city in permitting the waters of White river to flow upon the lands of the plaintiffs. After issues were joined, the two cases were consolidated for the purpose of trial and were tried to the court and a jury. The result was a verdict and judgment in favor of the plaintiffs Dolan for the sum of $1,541.25 and for the plaintiffs Neely in the sum of $8,220. The city has appealed from these judgments.
So far as this appeal is concerned, the facts may be briefly stated as follows: The city of Seattle owns a tract of land in section 14, township 22, range 4. The White river flows along the southwestern corner of this tract. Between the river and this tract of land a dike was constructed, many years ago, so as to prevent the flood waters of White river from flowing over the adjacent lands. This dike has been used for many years as a county road. It is 14 feet in width on the surface and 30 to 40 feet wide at its base. The flood waters of White river have never been known to overflow this dike. To the north of the city's property are several tracts of land owned by the respondents. In June of 1917, the city found it necessary to dispose of sewage from various buildings upon the city farm, and for that purpose constructed a 4-inch tile drainpipe from the city farm buildings through, under, and across the dike road adjacent to the city farm. This pipe was laid through and under the dike road in a tunnel, so as to discharge the sewage into White river. It is alleged in the complaint that this sewer was negligently constructed through the dike, and that when the waters of White river arose these waters washed out the tunnel and the dike, so that the waters of the river were permitted to flow in and upon the respondents' property, to their great damage. In December of 1917, there occurred in the White river valley a succession of floods. When the floods came, the waters cut through the tunnel and washed out through the dike a channel more than 100 feet wide, so that the respondents' property was flooded and great quantities of sand and débris were deposited thereon. This flood occurred between the 14th and the 28th of December of that year. On the 25th of January, 1918, the respondents Neely filed with the proper officials of the city of Seattle a claim for damages alleged to have been occasioned to their property by reason of the negligent construction of the tunnel and drain. They described by metes and bounds five separate tracts of land claimed to have been damaged.
We deem it unnecessary to set out the long descriptions in these notices and will designate these tracts by numbers as they are designated in the briefs here on appeal. The first tract which is numbered 1, contained 9.28 acres; the second tract number 2, contained 6.47 acres; the third tract contained 27.43 acres. With this claim was also filed a blueprint showing the location of these different tracts. On January 28th the respondents Neely filed another claim describing by metes and bounds two other tracts which may be referred to as tracts 4 and 5. These descriptions covered, in the aggregate, a tract of land lying north of the city's property containing something over forty acres. Between these tracts and the city property were three other tracts of land, referred to as tracts 7, 8, and 9, which were not described in any of the claims. On the 24th of January, 1918, the respondents Dolan filed with the proper officials of the city of Seattle a claim for damages to land owned by them. This description was also by metes and bounds and included tracts 1, 2, 4, and 5, described in the Neely claim and an additional tract, designated as tract 6, lying between the tracts described as 1, 2, 4, and 5, So that the claims presented to the city by the Neelys and Dolans duplicated tracts 1, 2, 4, and 5. When the action was brought by the Neelys, they described the lands in their complaint the same as they were described in the claim of damages filed with the city previously. Thereafter, and before the city answered, an amended complaint was filed by the Neelys, in which amended complaint damages were claimed for the three tracts numbered 7, 8, and 9, lying between the city property and the properties described in the claims by the Dolans and the Neelys. No claim for damages on account of the injury to these tracts, 7, 8, and 9, was ever presented to the city. Upon the trial of the case the court permitted evidence to go to the jury showing damages to these tracts, 7, 8, and 9. This evidence was objected to by the appellant at the time, and at the close of the case counsel for the city requested the court to strike all the evidence relating to these tracts from the consideration of the jury. This the court denied.
The principal error relied upon by the appellant is that the court erred in receiving any evidence as to damages to these tracts 7, 8, and 9, for the reason that no claim for damages was filed in time with the city on account of these tracts. Section 29, art. 4, of the charter of the city of Seattle, is as follows:
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