Parke v. City of Seattle

• Decision Date: 11 October 1892
• Citation: 5 Wash. 1,31 P. 310
• Parties: PARKE v. CITY OF SEATTLE. [1]
• Court: Washington Supreme Court

31 P. 310

5 Wash. 1

PARKE v. CITY OF SEATTLE. ^[1]

Supreme Court of Washington

October 11, 1892

Appeal from superior court, King county; R. OSBORN, Judge.

Action by James Parke against the city of Seattle to recover damages to his lot by the negligent excavating of streets. Defendant demurred to the complaint, and the demurrer was sustained. Plaintiff appeals. Reversed.

Greene & Turner, for appellant.

O. Jacobs, for respondent.

STILES, J.

The appellant, as plaintiff in the superior court, brought this action against the city of Seattle to recover damages from the municipality for so negligently excavating certain streets abutting upon his premises as to cause the hillside of which his premises formed a part, to bodily slide down into the streets, and thus cause great and permanent impairment of the value of his premises, and the destruction of his buildings and other improvements. To the complaint the defendant demurred, and the demurrer was sustained, and judgment against the plaintiff rendered accordingly. The premises were at the intersection of Sixth and Mill streets. The improvements, which embraced a house, outbuildings fence, lawn, shrubbery, etc., all worth $5,000, were made in 1886, and the alleged damage was done at some time before the adoption of the constitution, in 1889. The complaint charged "(4) That at the time of making said improvements, and always up to the time of the commission of the grievances hereinafter mentioned, the soil and earth of said premises and the adjoining soil and earth of said Mill and Sixth streets, and of said alley, and the soil and earth immediately to the eastward of said premises and alley, sloped downward from east to west at an average and natural rate of, to wit, one foot vertical to four feet horizontal, and the soil and earth of said premises were so related to the soil and earth in said Sixth and Mill streets adjoining said premises, and to the soil and earth in said alley adjoining said premises, and to the soil and earth lying within several hundred feet immediately to the eastward and northward of said alley and premises, that the soil and earth of said Sixth and Mill streets, adjoining said premises, formed the natural and necessary support of the soil and earth of said premises, and formed, together with the soil and earth of said premises, the natural and necessary support of the soil and earth in said alley adjoining said premises, and formed, together with the soil and earth of said premises, and the soil and earth of said alley adjoining said premises, the natural and necessary support of the soil and earth immediately to the eastward and northeastward of said alley and premises; all which the said city at the time of the commission of said grievances, and at all times, well knew. (5) That, after the making of the improvements mentioned in the third paragraph of this complaint, said city graded said Mill street, and so carelessly, negligently, and unskillfully excavated the soil and earth in said Mill and Sixth streets, adjoining said premises of plaintiff, and so carelessly, negligently, and unskillfully left such excavation without any proper or any means of support for the soil and earth of said premises, or for the soil and earth of said alley adjoining said premises, or for the soil and earth lying immediately to the eastward and northeastward of said alley and premises, that all the soil and earth of said premises, and of said alley adjoining the same, and all the soil and earth for several hundred feet immediately to the east and northeast of said alley and premises, all forthwith began, and thenceforth hitherto have continued, and still continue, and will indefinitely continue, to creep, slide, move, and go southwesterly and downwards in the direction of said slope, and upon, over, across, and off of said premises and into said Sixth and Mill streets and Yesler avenue, in such quantities and to such an extent that much more and many times more soil has long ago fallen into said Sixth and Mill streets out and off of said premises by reason of said excavation and said carelessness, negligence, and unskillfulness than was or is sufficient to give the natural slope of such earth for such excavation, and in such manner and to such an extent that great quantities of soil and earth have come and are coming upon said premises out of and off of said alley, and out and off of the land immediately to the eastward and northeastward of said alley and premises, by reason of said excavations and said carelessness, negligence, and unskillfulness, all to the great injury and destruction of said premises, and the said improvements thereon, and to the damage of plaintiff in the sum of seven thousand seven hundred and twelve dollars ($7,712;) that such creeping, sliding, moving, and going were not, nor was or is any of the same, caused by, or in any measure or decree caused by, or attributable to, the weight of or otherwise to said buildings or improvements, or any thereof, or any part thereof."

This pleading presents the question whether, before the constitution, ^[1] a municipal corporation was liable for any damage caused by its having taken away the lateral support from lands abutting on a street which it was grading. Two grounds of recovery are urged, viz.: First, the damage to the land by causing it to slide off; and secondly, the damage to the improvements on the land. If this suit were between private persons, the first element of damage would be recognized as proper if there was substantial injury done, but the recognition of the second would depend on whether there was negligence on the part of the excavator in making his excavation. This summary of the rule is amply considered and explained in Gilmore v. Driscoll, 122 Mass. 199. But the respondent objects that because it was engaged in a lawful opening and improving of streets it cannot be held liable for such injuries. The basis of this claim is that such injuries are what the courts term "consequential," which are without remedy. There is no doubt that what are termed "consequential" injuries are by most of the courts held to be remediless, although nearly all of the courts in this country have at one time or another regretted the existence of such a rule, and that they could not under the law follow the decisions of the supreme court of Ohio, which are to the contrary. Yet we find a number of the states granting relief in cases of the particular character of the one at bar; and although they are sometimes loosely denominated "consequential injuries," the fact is that they are not consequential, but direct, injuries. Judge Dillon, in his Municipal Corporations, (section 991,) says: ...