Peterson v. King County
| Decision Date | 30 December 1954 |
| Docket Number | No. 32876,32876 |
| Citation | 45 Wn.2d 860,278 P.2d 774 |
| Court | Washington Supreme Court |
| Parties | Lambert S. PETERSON et ux., Respondents, v. KING COUNTY, a Class 'A' County of the State of Washington, Appellant. |
Charles O. Carroll, Paul C. Gibbs, Seattle, for appellant.
Guttormsen, Scholfield, Willits & Ager, Seattle, for respondents.
Defendant, King County, appeals from a judgment entered against it after verdict of a jury.
Interrogatories submitted to the jury disclose that an allowance was made (a) for 'the reasonable cost of repairing the damage to plaintiffs' property' as the result of an earth slide; and (b) for 'the depreciation in the market value of plaintiffs' property.'
Plaintiffs' property is at the bottom of a steep slope. In 1942, the county built a road across the top of the slope and, in doing so, made a fill about ten feet high and installed a drainage system. A bulkhead was built directly above plaintiffs' property and filled with gravel and rock.
In 1948, some of the pilings supporting the bulkhead rotted, and the county drove new pilings but did not remove the rotted ones. During a heavy rain February 9, 1951, the drainage system failed, water accumulated on the road, and the slide resulted. In Peterson v. King County, 1953, 41 Wash.2d 907, 913, 252 P.2d 797, 800 (), we said:
When the case was returned for a new trial, defendant moved to strike certain paragraphs of the complaint. The trial court struck one paragraph, in accordance with our prior opinion, but refused to strike the remaining paragraphs against which the motion was directed.
The paragraphs, which the court refused to strike, alleged that defendant failed 'to repair or replace the said bulkhead in order to stop the flow of water, rocks and debris; * * * thus leaving plaintiffs exposed to further damage and constant danger through slides, rolling rocks, and excess drainage;' that the condition of the bulkhead is such that plaintiffs are deprived of direct access to their property, which deprivation will continue until the bulkhead and drainage system are repaired; and that, by reason thereof, the fair cash market value of the property has depreciated. (Almost three years elapsed between the date of the slide and the second trial.)
Plaintiffs prayed for damages: (1) to the real property, caused by the slide; and (2) for the 'depreciation in the fair market value of' the property.
Plaintiffs resisted the motion to strike on the ground that the paragraphs defendant sought to strike were necessary to state a cause of action based upon the theory of nuisance.
All of defendant's assignments of error are argued under one heading--that the trial court erred when it denied the motion to strike; when it permitted the introduction of evidence pertaining to the theory of nuisance; and when it gave certain instructions on the theory of nuisance.
It is not fatal that the complaint does not use the word 'nuisance;' for the true nature of a cause of action, stated in a complaint, must be determined by its allegations and the evidence offered in support of its prayer for relief. Hein v. Chrysler Corporation, Wash., 1954, 277 P.2d 708.
In their brief, plaintiffs admit that the complaint probably was subject to a motion to separately state two different causes of action, because it is apparent that the complaint alleges two separate wrongs, for each of which plaintiffs ask damages. The two separate wrongs are (1) the negligence of defendant 'in failing to properly maintain the safeguards it had provided,' which resulted in the slide, and (2) the invasion of their right to the use and enjoyment of their lands, resulting from the condition of the bulkhead after the slide.
The fallacy underlying all of defendant's arguments, as we view them, is the failure to recognize that the alleged existence of a nuisance refers to the interests invaded, and not to any particular kind of conduct which has led to the invasion. Facts establishing the existence of a nuisance may be alleged independent of allegations of negligence. The allegation of facts establishing negligence does not foreclose the allegation of facts establishing a resultant nuisance, for it is, of course, possible for the same act to constitute negligence and also give rise to a nuisance. Kilbourn v. City of Seattle, 1953, 43 Wash.2d 373, 382, 261 P.2d 407, 413.
'The attempt frequently made to distinguish between nuisance and negligence, for example, is based on a mistaken emphasis upon what ...
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Hurley v. Port Blakely Tree Farms L.P.
...“[I]t is, of course, possible for the same act to constitute negligence and also give rise to a nuisance.” Peterson v. King County, 45 Wash.2d 860, 863, 278 P.2d 774 (1954) (citing Kilbourn v. City of Seattle, 43 Wash.2d 373, 382, 261 P.2d 407 (1953)). However, “[s]eparate legal theories ba......
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...to maintain the highway in a safe condition resulted in anything more than a compensable taking in this case (Cf. Peterson v. King County, 45 Wash.2d 860, 278 P.2d 774 (1954) and authorities cited therein), it will be assumed, for the purpose of discussion, that the acts of respondent did r......
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Table of Cases
...389 P.3d 476 (2017): 16.9(4), 17.18(2)(c) Peterson v. King County, 41 Wn.2d 907, 252 P.2d 797 (1953): 11.2(2) Peterson v. King County, 45 Wn.2d 860, 278 P.2d 774 (1954): 11.3 Phillips v. King County, 136 Wn.2d. 946, 968 P.2d 871 (1998): 11.2(2), 11.5, 11.6(2) Polygon Nw. Co. v. Am. Nat'l Fi......
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§ 19.2 - Private Nuisance
...constitute nuisances under Washington law regardless of whether the encroachments are intentional or accidental. Peterson v. King Cnty., 45 Wn.2d 860, 863, 278 P.2d 774 (1954) (earth slide); Forbus v. Knight, 24 Wn.2d 297, 312-13, 163 P.2d 822 (1945) (tree roots); First Methodist Episcopal ......
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Table of Cases
...17.3(1)(c) Peterson v. City of Mercer Island, No. 46298-9-I, 2001 WL 410646 (Wn. Ct. App. Apr. 23, 2001): 19.3(3) Peterson v. King Cnty., 45 Wn.2d 860, 278 P.2d 774 (1954): 19.2(2)(a), 19.2(12)(e) Phillips v. City of Seattle, 51 Wn. App. 415, 754 P.2d 116 (1988), aff'd, 111 Wn.2d 903, 766 P......
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§11.3 - Nuisance and Stream Pollution
...Injuries occasioned by such events as flooding, erosion, and stream pollution are actionable in nuisance. Peterson v. King Cnty., 45 Wn.2d 860, 278 P.2d 774 (1984) (earth slide). Nuisances are broadly defined and extend to the infinite variety of ways in which one may be annoyed or impeded ......