FRANK DORAN, Respondent,
vs.
CITY OF SEATTLE, Appellant
No. 3645
SUPREME COURT OF WASHINGTON
24 Wash. 182, 64 P. 230
March 7, 1901, Decided
Appeal from Superior Court, King County. -- Hon. E. D. BENSON,
Judge.
TRESPASS RESULTING IN CONTINUED NUISANCE -- ACTION FOR DAMAGES --
LIMITATIONS.
Where a city in the improvement of a street constructed a
bulkhead so negligently that it gradually gave way and encroached
upon the premises of an adjoining lot owner to such an extent as
to cause injury to a house situated thereon, the trespass
constitutes an injury in the nature of a continuing nuisance, for
which the party injured may recover accrued damages as often as
he brings action therefor, and is not restricted to a single
action to recover present and prospective damages; and hence the
statute of limitations would not begin to run from the inception
of the injury.
W. E. Humphrey and Edward Von Tobel, for appellant.
John F. Dore, John W. Kelley, James J. McCafferty and J. S.
Mulvey, for respondent.
DUNBAR, J. REAVIS, C.J., and FULLERTON and ANDERS, JJ., concur. DUNBAR
{*183} The plaintiff, Frank Doran, alleges that the defendant,
the city of Seattle, negligently constructed a bulkhead in front
of his premises, and on account of such negligence the bulkhead
pressed against and injured his house. This suit was begun on the
24th day of January, 1898. The plaintiff's claim for damages was
filed on the 13th day of September, 1897. On the trial, after the
plaintiff had introduced his evidence, motion for non-suit was
made by defendant and denied by the court. The jury returned a
verdict in favor of the plaintiff. The question involved in this
appeal is in relation to the statute of limitations, and that
question is raised by the following instructions asked by the
defendant:
"The plaintiff can have but one cause of action for damages under
the facts of this case, and in the one action the plaintiff is
entitled to recover for all damages, if at all, sustained by him,
both past and prospective. The cause of action, if any accrued to
the plaintiff at the time of the first damages -- no matter how
small they may have been -- that he sustained; and unless a claim
for past and prospective damages was presented to the city
council and filed with the clerk of the defendant within six
months after the time the cause of action accrued, and the action
was commenced within two years after the first damages were
sustained, there can be no recovery, and your verdict must be for
the defendant."
"The statute requires actions for damages such as are claimed in
the complaint to be commenced within two years after the right of
action has accrued. If you find that the damages accrued to
plaintiff's property more than two years before the commencement
of this action, no matter how small that damage may have been,
then the whole claim is barred by the statute of limitations, and
your verdict must be for the defendant. The law will not {*184}
permit the plaintiff to split his cause of action and to recover
by piecemeal; but he must recover, if at all, for all damages,
past and prospective, in one single action."
These instructions the court refused to give, but instructed as
follows:
"If you believe, from a preponderance of the evidence in this
case, that in building and maintaining the bulkhead in question
the defendant has not used such care as ordinarily prudent city
officials, having similar work in charge, generally exercise in
erecting and maintaining entirely similar bulkheads, and that
through such failure the house of plaintiff was, within six
months immediately prior to the giving of this notice of claim of
plaintiff to defendant, injured by the gradual sliding of said
bulkhead, then your verdict will be for plaintiff in one such
gross sum as will, in your opinion, from the evidence, just
compensate plaintiff for such injury as so accrued within said
six months immediately prior to the filing of said plaintiff's
claim with defendant."
It is insisted by the appellant that, according to the
instructions given by the court, the statute of limitations began
to run from the time the injury ceased, and not from the time the
right of action accrued; that the case was tried upon this
theory, which was an erroneous one. Passing the question of the
legality of the statute in relation to the presentation of claims
before the commencement of the action and within a certain time
after the damages had occurred, we will proceed to the main
question involved, which is decisive of the case, granting, for
the sake of argument, that the filing of the claim was necessary.
There are a few cases which support the theory of defendant that
the statute of limitations begins to run from the inception of
the injury. In Powers v. Council Bluffs, 45 Iowa, 652 (24 Am.
Rep. 792), it was held that whenever a nuisance is of such a
character that its continuance is necessarily an injury, and when
it is of a {*185} permanent character that will continue without
change from any cause but human labor, then the damage is an
original damage, and may be at once fully compensated. In Town of
Troy v. Cheshire R.R. Co., 23 N.H. 83 (55 Am. Dec. 177), the same
doctrine was announced, although in that case it was held that if
the act done was not necessarily injurious, or if it was
contingent whether further injury would arise, the plaintiff
could recover damages only to the date of his writ. In this
connection it might be said that it would be difficult to tell in
the case at bar whether the injury would continue, and, if so, to
what extent. In Fowle v. New Haven & Northhampton Co., 107 Mass.
352, it was held that a judgment against a railroad corporation
for damages, not limited to those actually suffered at the date
of the writ, for locating and constructing their road on the bank
of a river, so as to divert its course and cause it to wash away
the plaintiff's land, is a bar to a like action by him against
them for subsequent damages from the same cause. But it will be
observed that in this case the decision was placed upon the
ground that the damages in the other case had not been limited to
those suffered at the date of the writ, and the rule contended
for by the appellant cannot be said to have been adopted in
Massachusetts, as, in the subsequent case of Prentiss v. Wood,
132 Mass. 486, it is held that an action for damages sustained
within six years by the wrongful continuance of a dam is not
barred by the statute of limitations, although the dam was
erected without right more than six years before the date of the
writ; the court in that case saying:
"The ground taken by the defendants, that these suits are barred
by the statute of limitations, cannot be maintained. A person who
continues a nuisance is liable to successive suits, each
continuance being a new nuisance, {*186} and therefore the
plaintiff in these actions is entitled to recover for all damages
accruing after the award above referred to, it being within six
years of the date of his writs"; citing Hodges v. Hodges, 5 Metc.
(Mass.) 205.
The same doctrine was announced in Wells v. New Haven &
Northampton Co., 151 Mass. 46 (23 N.E. 724, 21 Am. St. Rep. 423),
and the question of permanency, upon which some of the courts
have distinguished the cases, was discussed as follows:
"If the defendant's act was wrongful at the outset, as the jury
have found, we see no way in which the continuance of its
structure in its wrongful form could become rightful, as against
the plaintiff, unless by release or grant, by prescription, or by
the payment of damages. If originally wrongful, it has not become
rightful merely by being built in an enduring manner."
And the court noticed the decision in Fowle v. New Haven &
Northampton Co., supra, and distinguished it from the case it was
then deciding by saying:
"The plaintiff [in that case] had brought a former action in
which he expressly declared for prospective damages, and he was
allowed by the court to recover them, apparently without any
objection on this ground from the defendant; and if he had been
allowed to hold his second verdict he would have got double
damages, which clearly was not permissible. The decision of that
case does not necessarily imply that an action must have been
brought within six years, or if it does, we cannot follow it; . .
."
The case upon which appellant largely relies is that of North
Vernon v. Voegler, 103 Ind. 314 (2 N.E. 821), and the opinion,
having been written by Judge ELLIOTT, who is recognized by the
bar of this country as a learned author and jurist, demands
particular attention. In that case it was squarely held that in
an action for injury to real estate caused by the negligence of
corporation officers {*187} in constructing a public work of a
permanent character, as the grading of a street, all damages,
past and prospective, can be recovered in one action; that they
must be recovered in one suit; and that, for fresh damages
resulting from the original wrong, a second action cannot be
maintained. A very vigorous opinion is written in that case, but
with due deference to the eminent judge who wrote the opinion, we
are inclined to think that both reason and authority concur in
overruling the rule there announced.
In Uline v. New York Central, etc., R.R. Co., 101 N.Y. 98 (4 N.E.
536, 54 Am. Rep. 661), where an elaborate and painstaking
investigation of this question was indulged in and the
authorities collated, it was decided that where a railroad is
unlawfuly constructed in a street, in an action by an adjacent
owner to recover damages, he is entitled to recover simply the
damages sustained up to the commencement of the action, and that
for any damages thereafter sustained, other actions might be
brought successively until the nuisance should be abated. In the
discussion of this question Judge EARL, who wrote the opinion for
the court, in noticing the case of North Vernon v. Voegler,
supra, and after discriminating that case to a certain extent
from the one in question, said:
"But the case is also inferentially authority for the second
ground of error upon which I have based my conclusion. . . . But
I am of opinion that that decision is clearly unsound as to the
precise question adjudged. What right was there to assume that
the street would be left permanently in a negligent condition and
then hold that the plaintiff could recover damages upon the
theory that the carelessness would forever continue? A
municipality or a railroad corporation under proper authority may
erect an embankment in a street, and if the work be carefully and
skillfully done it cannot be made liable for the consequential
damages to adjacent property. {*188} But if it be carelessly and
unskillfully done, it can be made liable. It may cease to be
careless, or remedy the effects of its carelessness, and it may
apply the requisite skill to the embankment, and this it may do
after its carelessness and unskillfulness and the consequent
damages have been established by a recovery in an action. The
moment an action has been commenced, shall the defendant in such
a case be precluded from remedying its wrong? Shall it be so
precluded after a recovery against it? Does it establish the
right to continue to be a wrong-doer forever by the payment of
the recovery against it? Shall it have no benefit by
discontinuing the wrong, and shall it not be left the option to
discontinue it? And shall the plaintiff be obliged to anticipate
his damages with prophetic ken and foresee them long before, it
may be many years before they actually occur, and recover them
all in his first action? I think it is quite absurd and
illogical to assume that a wrong of any kind will forever be
continued and that the wrong-doer will not discontinue or remedy
it, and that the convenient and just rule, sanctioned by all the
authorities in this state, and by the great weight of authority
elsewhere, is to permit recoveries in such cases by successive
actions until the wrong or nuisance shall be terminated or
abated."
And it may be added that, under the logic of the doctrine
announced in the Indiana case, the wrong doer might, by the
payment of prospective damages, actually become permanently
possessed of real property which, under the theory of the law,
can only be taken by corporations under the provisions of the law
in relation to eminent domain. In addition to this, the rule is
inequitable, in that the damages in the first instance and before
the statute of limitations expires may be so trifling that it
would not justify litigation. It would be inequitable and not in
accordance with good morals to estop a person from obtaining his
rights or damages for injuries which might eventually become
burdensome, because he was not {*189} litigious enough to plunge
into a law suit over a trifling matter. It is said by the
appellant that the cases cited above are not in point for the
reason that the wrongs committed were nuisances; but an
examination of the many cases on this subject shows that they are
treated in all instances as nuisances when they are wrong, and
that the construction of that which is originally legal and
right, if wrongfully constructed and maintained, may become a
nuisance. Under the title "Trespasses Resulting in Continued
Nuisances," it is said in 5 Am. & Eng. Enc. Law, p. 17:
"The rule here is a combination of the two rules just given. The
institution of the wrong is treated as a trespass, while the
continuance of it is treated as a nuisance. The damages for the
original act of trespass are all to be recovered in the first
action, but successive actions must be brought to recover for
damages for the continuation of the wrongful conditions, and in
these the damages are estimated only to the date of the bringing
of each suit."
In Aldworth v. Lynn, 10 L.R.A. 210 (26 N.E. 229, 25 Am. St. Rep.
608), the rule of continuing damages was announced; the
contention of the plaintiff in that case being that, if the
damage resulted from a cause which was either permanent in its
character or which was treated as permanent by the parties, it
was proper that the entire damages should be assessed with
reference to past and probable futures. The attorney in that case
cited Fowle v. New Haven & Northampton Co., supra, and Troy v.
Cheshire R.R. Co., supra, and the court in its opinion said:
"So far as there are intimations in the opinions of Fowle v. New
Haven & N. Co., which seem to make the case an authority for the
plaintiff's contention in the case at bar, we are not inclined to
follow them."
In Mayor of Nashville v. Comer, 7 L.R.A. 465 (12 {*190} S.W.
1027), it was held that damages for an alleged negligent
construction of a sewer, in consequence of which plaintiff's
premises are injured by discharge therefrom, must be limited to
the actual damage sustained up to the time of bringing suit, and
cannot include prospective damages on the ground that the defects
are permanent, although human labor will be necessary to remedy
the defects. In this case the same cases were cited, viz., Troy
v. Cheshire R.R. Co., supra, and Powers v. Council Bluffs, supra,
to sustain the doctrine that all the damages must be included in
one suit, and the court in passing upon that question, after
laying down the rule that damages could be assessed only up to
the time of the writ, and after reviewing the arguments in the
cases cited to sustain the opposite contention, among other
things said:
"This seems to us an artificial and arbitrary test. There are
supposable nuisances, which, by the effect of time, might at last
abate themselves, but by far the greater number of trespasses,
wrongs and nuisances would continue indefinitely, without the
expenditure of human labor to remove or abate them. It is a rule
which does not recommend itself by either its reasonableness, its
certainty of application or its justice."
And, after noticing the rule announced in Troy v. Cheshire R.R.
Co., supra, and Powers v. Council Bluffs, supra, it continued:
"Thus the application of the rule now contended for would require
a plaintiff to foresee all the possible results, and to convince
a jury of what he, with prophetic ken, is required to foresee, on
penalty of subsequently having to quietly endure consequences
which he could not reasonably have conjectured as likely to
result from what at first seemed a trifling injury. The cases of
North Vernon v. Voegler, 103 Ind. 314, and Fowle v. New Haven &
N. Co., 112 Mass. 334, have been examined, and we find {*191}
that they do measurably support the contention of defendants in
error. None of these cases are satisfactory in their reasoning
and the decided weight of authority is opposed to them."
See, also, Blunt v. McCormick, 3 Denio, 283; Greene v. New York
Central, etc., R.R. Co., 65 How. Pr. 154; Powers v. Ware, 4 Pick.
106; McGuire v. Grant, 25 N.J. Law, 356 (67 Am. Dec. 49); Schell
v. Plumb, 55 N.Y. 592; Mahon v. New York Central, R.R. Co., 24
N.Y. 658.
The rule contended for by appellant, it seems to us, would work
unnecessary hardship, is fraught with doubt and uncertainty in
its application, and we are not inclined to adopt it. The
instructions of the court were without error, and the judgment is
therefore affirmed.
DISPOSITION
Affirmed.
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