Welch v. Seattle & M. R. Co.

• Decision Date: 26 November 1909
• Court: Washington Supreme Court
• Parties: WELCH et ux. v. SEATTLE & M. R. CO. et al.

105 P. 166

56 Wash. 97

WELCH et ux. v. SEATTLE & M. R. CO. et al.

Supreme Court of Washington

November 26, 1909

Department 2. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by John M. Welch and wife against the Seattle & Montana Railroad Company and another. Judgment for plaintiffs, and defendants appeal. Reversed, with instructions.

F. V Brown and Frederic G. Doherty, for appellants.

Stephen V. Carey and Jay C. Allen, for respondents.

DUNBAR J.

This action was brought by the plaintiff and respondent John M Welch, who is a saloon keeper, and his wife, to recover compensation for loss of business resulting from damage to the building which he occupied as a saloon at the time of the construction of the Great Northern tunnel in Seattle. The complaint alleges, in substance: That the defendants, in the construction of said tunnel, excavated through, across, and underneath the surface of lot 10 in block G. particularly through, across, and underneath that portion of said lot covered by plaintiffs' building held under a certain lease, and that in constructing the work therein and thereon the defendants on divers and sundry times caused to be set off and discharged blasts of dynamite, giant powder, and explosives of different kinds, and did remove from off said lot and from underneath the surface, and particularly from that portion thereof so covered by said building, certain of the soil; that by reason thereof the surface of said lot 10, and that portion of it covered by said building, subsided and slid and moved westward, by reason whereof the said building settled, collapsed, and moved from its foundation, and was rendered dangerous and unfit for occupation, and by reason thereof the plaintiff's business was disturbed and interrupted; and that the plaintiffs were thereby damaged. The answer denied that plaintiffs were damaged by reason of any of the acts of defendants. Reply was made to certain affirmative allegations, which it is not necessary to discuss here. The case went to trial, and judgment was rendered in favor of the plaintiffs. The defendants raised the question of the statute of three years' limitation, the statute of two years' limitation, and the fact that the lease under which the plaintiffs held the property alleged to have been damaged should have been construed to be a lease from month to month. The court instructed the jury that the two-year statute of limitations did not apply to the case, and that they need not consider it. In this we think the court erred, and upon this question hinges the fate of this case.

If the three-year statute applies to an action of this kind, it must be brought within the provision of paragraph 1 of section 285, Pierce's Code (Ballinger's Ann. Codes & St. § 4800), viz., an action for waste or trespass upon real property. If it does not, them it falls within section 289a which provides that 'an action for relief not hereinbefore provided for shall be commenced within two years after the cause of action shall have accrued.' It is the established rule of this court that the question of whether an action is an action for 'trespass' upon real property depends upon what was deemed trespass at the common law, and in order to determine that question it is necessary to examine the common-law authorities. In Cooley's Blackstone (4th Ed.) vol. 2, p. 208, the author says that 'trespass, in its largest and most extensive sense, signifies any transgression or offense against the law of nature, or society, or the country in which we live; whether it relates to a man's person or his property.' But that 'in the limited and confined sense, in which we are at present to consider it, it signifies no more than an entry on another man's ground without a lawful authority, and doing some damage, however inconsiderable, to his real property.' The essential idea seems to have been the breaking of a close by force, the words of a writ of trespass commanding the defendants to show cause quare clausum querentis fregit, and it was frequently called trespass vi et armis. So great a regard did the law have for a man's close or premises that it presumed damages would accrue from the breaking into or penetrating such close, even if it was no more than the trampling of the herbage...