14 Wn.2d 523, R. G. GILLAM, as Administrator, Respondent, v. THE CITY OF CENTRALIA, Appellant
[No. 28710. Department One. Supreme Court August 21, 1942.]
R. G. GILLAM, as Administrator, Respondent, v. THE
CITY OF CENTRALIA, Appellant.«1»

In Docksteader v. Centralia, 3 Wn. (2d) 325, 100 P. (2d) 377, we held that the depriving of a landowner of access to his tract, by the construction of the identical viaduct involved in the present case, was a taking or damaging of private property within the constitutional inhibition. Since we have already decided in the Docksteader case that the taking or damaging now under consideration is one for which the constitution requires compensation to be made, it follows that under the authority of Marshall v. Whatcom County, supra the third subdivision of the three-year statute of limitations applies.

[2] Having concluded that the three-year statute governs the case at bar, we shall now consider when the statute started to run. The viaduct, or overcrossing was built pursuant to an agreement between appellant city, the state, and the railroad company, by the terms of which agreement the city undertook to furnish the necessary right of way. The actual construction was done by a private contractor under a contract with the state. The contract describes the work as

528 GILLAM v. CENTRALIA.
Opinion Per DRIVER, J. [14 Wn. (2d)

". . . clearing, grading, draining, surfacing with crushed stone and constructing a bituminous surface treatment and a reinforced concrete and steel overcrossing and treated pile and timber trestle, on City Street, Railroad Overcrossing on Sixth Street in the City of Centralia, . . ."

The viaduct runs east and west on Marion street, and the pile and timber trestle on the easterly approach extends across the entire southerly front of respondent's lot. Work was started by the contractor in July, 1936; the driving of the piling on the easterly approach was finished in September or early October; and all the concrete had been poured by April 2, 1937. The resident engineer of the state highway department testified that "The bridge was entirely completed the 7th of May, 1937, . . . Everything except some minor repairs. . . ." However, he also said that the approaches within the retaining walls were surfaced and oiled in the early part of June and were again treated with oil around the first of July. On cross-examination, the witness stated that the contract was completed July 2, 1937, and that the work was accepted by the state on July 21, 1937.

Another state highway department employee, an engineer-inspector on the work, testified that the bridge structure was completed around May 7, 1937, but, on cross-examination, in response to the question, "The contract was not completed until at least July 2, 1937?" answered, "That was the date of completion as far as our office was concerned, was July 2, 1937." He further testified it was quite possible that at least a dozen men were working on the job after May 7th and up until July 2nd.

Another witness, called by appellant, a former tenant of respondent's premises, when asked, "Do you of your own knowledge know about the time that structure

GILLAM v. CENTRALIA. 529
Aug. 1942] Opinion Per DRIVER, J.

was completed?" responded, "Well, it was some time in July, I don't know the dates."

Respondent called as a witness a workman who had worked on the construction of the viaduct continuously from the fall of 1936 until "Right around before the Fourth of July" of the following year. He stated that the last work done was retarring and resurfacing the road leading to the viaduct, and that the middle of June, 1937, "We put in the fire walls." The fire walls, it seems, consist of heavy planking attached to the piling underneath the ceiling of the viaduct. The trial court found that the viaduct was completed after July 2, 1937, and we think the evidence preponderates in favor of the finding. Respondent commenced the instant action by the filing of his complaint on June 5, 1940.

No case has been called to our attention in which we have passed upon the precise question under consideration. In a number of other jurisdictions, it has been held that, where a municipality, without condemnation proceedings, takes or damages private property for a public improvement, the statute of limitations does not commence to run against the property owner's right of action for compensation until construction of the improvement has been entirely completed or until operations thereon have ceased for such a period of time as reasonably to indicate that the project has been abandoned. Foley v. Cedar Rapids, 133 Iowa 64, 110 N. W. 158; Bigham Bros. v. Port Arthur Canal & Dock Co., 59 Tex. Civ. App. 367, 126 S. W. 324; Southern R. Co. v. Leake, 140 Va. 438, 125 S. E. 314; Ashman v. Des Moines, 209 Iowa 1247, 228 N. W. 316; Tulsa v. Springfield Life Ins. Co., 157 Okla. 218, 11 P. (2d) 493.

Perhaps the clearest statement of the reason for the rule in the cited cases appears in Foley v. Cedar Rapids.

530 GILLAM v. CENTRALIA.
Opinion Per DRIVER, J. [14 Wn. (2d)

There, the city had constructed a viaduct across certain railway tracks, and, in so doing, had raised the grade of the street in front of plaintiff's property. With reference to when the applicable statute of limitations commenced to run against plaintiff's right of action for compensation she supreme court of Iowa said.