Wilkening v. State
| Decision Date | 24 September 1959 |
| Docket Number | No. 34949,34949 |
| Citation | 344 P.2d 204,54 Wn.2d 692 |
| Parties | William WILKENING, Appellant, v. STATE of Washington, Respondent. |
| Court | Washington Supreme Court |
Foster & Foster, Olympia, for appellant.
John J. O'Connell, Atty. Gen., H. T. Hartinger, Asst. Atty. Gen., for respondent.
The trial court granted an involuntary nonsuit at the close of plaintiff's case. Plaintiff appeals from a judgment dismissing his action with prejudice.
Plaintiff originally owned a tract of land, the southeasterly portion of which was a natural embankment sloping down to and including the adjacent tidelands in the DesChutes waterway in the city of Olympia. A portion of plaintiff's property below the embankment was subject to a 30-foot railroad right of way traversed by a wooden trestle supporting a single railroad track. Plaintiff's home is at the top of the embankment.
In 1947, the legislature authorized the DesChutes Basin project. Its purpose was to improve that portion of the DesChutes river and its tidelands lying west and north of the present state capitol grounds. The primary feature of the project was to create Capitol lake, by the construction of a dam, and to construct parkways, causeways, streets, and highways around the lake. The statute authorized the relocation and re-routing of railroad lines. Laws of 1947, ch. 186, p. 821; RCW 79.24.100 et seq.
February, 1950, the state acquired, by eminent domain, a portion of plaintiff's land and tideland at the foot of the natural embankment for use in the DesChutes Basin project.
Thereafter, the state constructed a fill upon the lands acquired from plaintiff. A civil engineer testified that
'* * * the area where the trestle existed was filled in and it [the fill] carried on back on an elevation of about a foot and a half above what we call Olympia Datum to the hill. * * *' The fill serves as a base for the DesChutes parkway. The state also installed a drain in the fill to carry off surface and percolating waters from plaintiff's premises; but the drain does not carry these waters as rapidly as they were carried away prior to construction of the fill. In 1951, after the fill was in place, two additional railroad tracks were constructed between the original track and the parkway.
In his opening brief, plaintiff designated his first cause of action as one for
'Damages for a material reduction of the value of plaintiff's remaining land by reason of the installation and continued use of multiple railroad tracks and the presence of multiple engines, freight cars and trains.'
The state, in its answering brief, designates plaintiff's first cause of action as
'An action for damages for departure from binding construction plans in allowing the relocation of railroad tracks in front of appellant's [plaintiff's] premises.' (Italics ours.)
The references in the complaint to the February, 1950, condemnation action suggest that plaintiff seeks recovery on the ground of departure from construction plans offered in that action. Moreover, a portion of plaintiff's evidence appears to have been offered in support of this theory, although the decree of condemnation entered in the prior condemnation action was not introduced in evidence. Plaintiff, however, disavowed this theory in his reply brief; hence, we need not discuss it.
We will, therefore, treat those portions of the complaint and the evidence which refer to the 1950 condemnation action as surplusage, and inquire whether plaintiff's evidence has established a right to relief against the state on the theory of constitutional damaging (Wash.Const., Art. I, § 16) independent of any departure from construction plans.
Paragraph V of plaintiff's first cause of action alleges:
'That by reason of the installation and continued use of said multiple railroad tracks, plaintiff has been subjected to the presence, annoyance, smoke and noise of multiple engines, freight cars and trains immediately addjacent to his home; that the continued presence of said multiple tracks engines, trains and railroad cars has materially reduced the value of plaintiff's remaining land; that by reason thereof, plaintiff has been damaged in the sum of $20,000.00.'
Interpreting plaintiff's evidence in the light most favorable to him (Traverso v. Pupo, 1957, 51 Wash.2d 149, 316 P.2d 462), we find nothing that establishes a cause of action against the state.
In Taylor v. Chicago, Milwaukee & St. P. R. Co., 1915, 85 Wash. 592, 148 P. 887, L.R.A. 1915E, 634, this court held that the jarring of buildings, the casting of smoke, sparks and soot on premises, and the emission of gases and fumes necessarily incident to the ordinary operation of a railroad through a city, which result in depreciating the value of neighboring property, is damnum absque injuria, in the absence of negligence on the part of the railway company. This court also held that Art. I, § 16 of the Washington constitution does not authorize compensation for depreciation in value caused by a legal act which is, in law, damnum absque injuria.
The complaint contains no allegations of negligence on the part of the state or the railroad; and the evidence does not establish a relationship between the state and the railroad, nor does it disclose how or when the railroad acquired its right of way. The evidence does not justify an inference of negligence on the part of the state or the railroad.
The trial court did not err when it dismissed with prejudice the first cause of action against the state of Washington.
The complaint alleges that the state, having constructed the fill heretofore described, 'failed to provide proper drainage for natural waters'; thus causing said water to accumulate, which accumulation of water resulted in (1) slides and subsidence of plaintiff's land (second cause of action); and (2) loss of ingress and egress to plaintiff's hillside property because a pathway became impassable (third cause of action). We agree with the trial court 'that there is nothing about the third cause of action to distinguish it in principle from the second cause of action.'
In his memorandum opinion, the trial judge said:
'As to the second cause of action, this Court takes the view that the actions complained of have nothing to do with the original condemnation proceedings and are as if brought between neighboring land owners, both private citizens.
The 'natural waters' which caused the slides and subsidence of plaintiff's hillside are described by an engineer as follows:
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