Stern v. City of Spokane

• Decision Date: 18 April 1913
• Citation: 73 Wash. 118,131 P. 476
• Parties: STERN et ux. v. CITY OF SPOKANE.
• Court: Washington Supreme Court

131 P. 476

73 Wash. 118

STERN et ux. v. CITY OF SPOKANE.

Supreme Court of Washington

April 18, 1913

Department 1. Appeal from Superior Court, Spokane County; E. K Pendergast, Judge.

Action by Samuel R. Stern and wife against the City of Spokane. Judgment for defendant, and plaintiffs appeal. Affirmed.

Robertson & Miller and J. W. Hancox, all of Spokane, for appellants.

H. M Stephens and William E. Richardson, both of Spokane, for respondent.

CHADWICK J.

Plaintiffs are the owners of a three-story brick building and an adjoining frame structure in the city of Spokane. The lower floor of these buildings is devoted to business uses, and the upper floors are used as a hotel and lodging house. The city of Spokane is built on either side of the Spokane river, and the city has for a long time maintained a steel bridge on Monroe street; it being the principal connecting street between the north and south sides. The old bridge being adjudged to be insecure, the city closed it for traffic on January 1, 1909, and immediately began the work of constructing a new concrete bridge, the main span of the new structure being, as we are informed, the longest arch of like construction in the world. In order to facilitate the work of dismantling the old and erecting the new bridge, the city erected two high towers in the street in front of plaintiff's property. Over these towers cables were run to and over like towers to the opposite side of the river. These cables were used as an aërial tramway, over which the old material was removed, and the false work and new material was carried. The city also erected a house in the street and installed an engine. This engine furnished power to run the tramway. The free use of plaintiffs' property was interrupted, and this action was brought to recover damages alleged to have been suffered in the way of lost rents, etc.

Without indulging in unnecessary detail, it may be said that the plaintiffs base their right of recovery upon the allegations That the act of the city is a damaging within the meaning of section 16, art. 1, of the Constitution, and that they are entitled to have their damages assessed in money; that, if the right of the city be sustained, the work was negligently and carelessly done; that the plans were defective; and, finally, if it be held to be otherwise, an unreasonable time was consumed in finishing the work. The case was tried to a jury and a general verdict was returned in favor of the city.

The following interrogatories were submitted to and answered by the jury:

'No. 1. Was there unreasonable delay in the construction of the bridge, and, if so, what was the excess of time over and above a reasonable time? A. No.

'No. 2. Did the plaintiffs suffer any loss of rentals by reason of the wrongful construction or placing of any of the structures, machinery or appliances used in building the bridge, and, if so, what was the amount of such loss? A. No.

'No. 3. Did the plaintiffs suffer any loss of rental on account of any negligence in the use or operation of any of the machinery or appliances used in building the bridge, and, if so, how much? A. No.'

The trial was a long one, and the testimony took a wide range. It was conflicting upon all the material issues, and in consequence we feel bound by the verdicts, general and special, and hold without further discussion that the work was not negligently done, and that the city did the work within a reasonable time. It follows then that there can be no damage unless it be under the bill of rights. Appellants state their position in broad terms. It is that an owner of land abutting a street is given a cause of action for any invasion of his property or right of occupation, or for any act that may injure the rental value of his property; and, if the occupation of a street interferes with the owner's use and enjoyment of property in greater degree than is suffered by the public generally, that he is entitled to compensation for such use or taking irrespective of any negligence or omission arising in or growing out of the prosecution of the work. Appellants rely on the following cases: Smith v. St. Paul, etc., R. Co., 39 Wash. 355, 81 P. 840, 70 L. R. A. 1018, 109 Am. St. Rep. 889; Lund v. Idaho-Wash. Nor. Ry., 50 Wash. 574, 97 P. 665, 126 Am. St. Rep. 916; Brown v. Seattle, 5 Wash. 35, 31 P. 313, 32 P. 214, 18 L. R. A. 161; Farnandis v. Gt. Nor. Ry. Co., 41 Wash. 486, 84 P. 18, 5 L. R. A. (N. S.) 1086, 111 Am. St. Rep. 1027; State ex rel. Smith v. Superior Court, 26 Wash. 278, 66 P. 385; Rigney v. Taylor, 102 Ill. 67; Chicago v. Taylor, 125 U.S. 161, 8 S.Ct. 820, 31 L.Ed. 638.

This court has held in common with the majority of the courts in this country that the individual is bound by the intent and purpose of...