Aylmore v. Seattle, 100 Wash. 515, 171 Pac. 659 (1918).

                AYLMORE v. SEATTLE.                    515
 Mar. 1918          Opinion Per WEBSTER, J.

      [No. 14353. Department One. March 12, 1918.]
      REEVES AYLMORE, JUNIOR, et al., Appellants, v.
           CITY OF SEATTLE, Respondent. «1»

 516    AYLMORE v. SEATTLE.
                Opinion Per WEBSTER, J.           100 Wash.

thoroughfares, which improvement was completed and the
streets opened for travel in the summer of 1914; that
the defendant is now devoting the property to such
public use without the plaintiffs' consent, and without
having condemned or paid therefor or acquired title
thereto, and that, in 1913, the plaintiff, Aylmore,
notified the defendant in writing that it was proceeding
in the premises without having complied with the law,
and requested that an action be instituted for the
purpose of condemning and paying for the property, which
request was, on October 20, 1913, denied. The prayer
is for the recovery of the land, or, in the alternative,
that plaintiffs have judgment for its value.

The defendant answered, pleading, among other defenses,
the two-year and the three-year statutes of limitation.
Thereafter, in due time, the case came on for
trial before a jury, and when the plaintiffs called their
first witness, the defendant objected to the introduction
of any evidence upon the ground that it affirmatively
appeared from the amended complaint that the
action was barred by limitation, which objection was
sustained and judgment of dismissal entered. The
plaintiffs have appealed.

Whether the action is barred depends upon which
of the various statutes of limitation is applicable to a
proceeding of this character. Appellants assert that
the action, being one for the recovery of compensation
guaranteed by the constitution to the owner of land
taken for public use, is not barred until the defendant
has acquired title to the property by prescription.
Respondent contends that the plaintiffs, having stood by
and permitted the city to take and improve the property
as portions of public streets, are estopped from
maintaining ejectment for the recovery of the land and
are restricted to an action for damages, which action

                AYLMORE v. SEATTLE.                517
 Mar. 1918          Opinion Per WEBSTER, J.

is barred either by subd. 1 of SS 159 of the code, relating
to actions for trespass upon real property, or by SS 165,
relating to actions for which provision is not otherwise
made.

The precise question thus presented is one of first
impression in this court. It is manifest, however,
that the action is not governed by the three-year
statute. We have repeatedly held that a municipality, in
taking private property for public use, acts in its
sovereign capacity and not as a trespasser. Having the
right to take - whatever its procedure or lack of procedure - it
is not a wrongdoer. Kincaid v. Seattle, 74 Wash. 617,
134 Pac. 504, 135 Pac. 820; Casassa v. Seattle,
75 Wash. 367, 5134 Pac. 1080; Domrese v. Roslyn,
89 Wash. 5106, 5154 Pac. 140.

Nor is it controlled by the period of limitation applicable
to actions for the recovery of consequential
damages to property not appropriated. The only
sense in which this action may be considered as one
for damages is that the amount sued for is unliquidated.
The city has not damaged appellants' property,
but has actually taken it from them. They are not proceeding
to recover for an injury to property, but are
seeking to obtain just compensation in the way of payment
for private property actually taken and devoted
to public use.

The rule applicable to actions for damages, properly
so called, is stated in Lewis on Eminent Domain
(3d ed.), SS 968, in this language:

"Whenever there is an unlawful entry upon
property for the purpose of appropriating it to public use,
or whenever it is injured by the construction or
operation of public works, so as to afford the owner a cause
of action, the owner may have redress by any of the
appropriate common law remedies, and the general
statute of limitations will apply thereto."

 518    AYLMORE v. SEATTLE.
                Opinion Per WEBSTER, J.           100 Wash.

While the rule with respect to actions seeking compensation
for property actually taken is stated in SS 967
of the same work as follows:

"We have seen that where property is entered upon
and appropriated to public use without complying
with the law, the owner may waive the tort and sue for
his just compensation. The same rule applies where
the entry is by consent and the question of compensation
is left for future adjustment. In such cases the
action for just compensation is not barred, except by
adverse possession for the requisite period to establish
a title by prescription."

The reason for this distinction is perfectly obvious.
A corporation possessing the right of eminent domain
may acquire property for its public uses in one of
three ways only: (a) by purchase; (b) by condemning
and paying for the property in the manner provided by
law; and (e) by adverse possession for the statutory
period. If the right of the owner to recover
compensation for property actually taken is barred before the
expiration of the prescriptive period, this anomalous
situation will result: he will continue to be the owner
of the property until he loses his title by adverse
possession, yet, during the interval, he cannot exercise a
single act of beneficial ownership or do any act to toll
the running of the statute. He will be deprived of the
use and enjoyment of property which belongs to him,
both in law and in equity, while the one who has taken
it without title, either legal or equitable, can exercise
over it every right ordinarily incident to ownership.
We are unable to appreciate a condition where an
owner is deprived of all right of enjoyment, while another,
who holds no sort of title to the property, may use and
deal with it as his own. Title cannot be invested where
none has been divested. To hold otherwise is to
sanction a custom belonging to an age long since passed
which permitted one to acquire property of another

                AYLMORE v. SEATTLE.                    519
 Mar. 1918          Opinion Per WEBSTER, J.

merely by taking it, provided he was strong enough to
retain it.

"Where the constitution either expressly, or as interpreted
by the courts, requires compensation to be
first made for property taken for public use, a law
which casts the initiative upon the owner and requires
him to prosecute his claim for compensation within a
time limited or be barred, is invalid. When under such
a constitution property is appropriated to public use
without complying therewith, the owner's right to compensation
is not barred, except by adverse possession
for the prescriptive period." Lewis, Eminent Domain
(3d ed.), SS 966.

See, also, 2 Nichols, Eminent Domain (2d ed.), p.
958; Randolph, Eminent Domain, SS 393; Mills, Eminent
Domain (2d ed.) SS 346; 10 R. C. L. p. 236.

In the case of Salt Lake Inv. Co. v. Oregon Short
Line R. Co., 46 Utah 203, 148 Pac. 439, decided by the
supreme court of Utah in 1914, it is said:

"The evidence shows the entry and taking to have
been in March or April, 1906. The action was commenced
in December, 1912, more than six and less than
seven years from the taking. The contention is first
made that the action is barred by provisions of Comp.
Laws 1907, section 2877, subdiv. 2, which provide that
'an action for waste or trespass of real property' must
be commenced within three years. And, if that section
is held not applicable, then the further claim is made
that the action is barred by the provisions of section
2883, which provide that an action for relief not
hereinbefore provided for must be commenced within four
years.' The complaint is broad enough to recover on
the theory stated by the appellant, 'compensation for
the taking of private property for public use.' The
case was tried by both parties, and was without objection
submitted to the jury, on that theory. The pleadings
admit a taking for a public use and an exclusive
and continuous occupation and possession, without the
consent of the plaintiff and without the institution of
eminent domain or condemnation proceedings. We

 520    AYLMORE v. SEATTLE.
                Opinion Per WEBSTER, J.           100 Wash.

think in such case neither section referred to is applicable,
but that the provisions of section 2860 requiring
actions or defenses rounded on realty to be commenced
within seven years are. By those provisions
the action is not barred. Our Constitution and statute
require compensation to be first made for private
property taken for public use; and where property is
entered upon and appropriated to public use without
complying with the law, the owner may waive the tort
and sue for his just compensation. In such case the
action is not barred, except by adverse possession for
the required period, here seven years."

See, also, Lehigh Valley R. R. Co. v. McFarlan, 43
N.J. L. 605; McClinton v. Pittsburgh, F. W. & C. R.
Co., 66 Pa. St. 404; Organ v. Memphis & L. R. R. Co.,
51 Ark. 235, 11 S. W. 96; Board of Levee Com'rs v.
Dancy, 65 Miss. 335, 3 South. 568; Pawnee County v.
Storm, 34 Nab. 735, 52 N. W. 696; Kime v. Cass County,
71 Neb. 677, 99 N. W. 546, 101 N. W. 2; Doyle v. Kansas
City & S. R. Co., 113 Mo. 280, 20 S. W. 970; Texas
W. R. CO. v. Cave, 80 Tex. 137, 15 S. W. 786; Chicago.
R. I. & G. R. Co. v. Johnson (Tax. Civ. App.), 156 S.
W. 253; Faulk v. Missouri River & N. W. R. Co., 28 S.
D. 1, 132 N. W. 233, Ann. Cas. 1913E 1.130, and note;
Johnson v. Hawthorne Ditch Co., 32 S. D. 499, 143 N.
W. 959; Burrall v. American Tel. & Tel. Co., 224 Ill.
226, 79 N. E. 705.

We are not unmindful that the authorities are in
conflict upon the question here involved, but we are
convinced the rule supported by the foregoing authorities
is the one sustained by the better reasoning.

While this court has held in numerous cases that a
landowner who stands by and permits a corporation
to go upon his land and construct thereon an expensive
public improvement without having acquired the
right so to do, either by agreement or condemnation,
is estopped from thereafter maintaining an action in

                AYLMORE v. SEATTLE.                521
 Mar. 1918          Opinion Per WEBSTER, J.

ejectment or a suit for injunctive relief, but is confined
to an action for compensation, yet the application
of the principle is no broader than the reason
upon which it is based. The rule rests in equitable
estoppel and is sustained by considerations of public
policy. Where one stands by and sees his property
taken and improved at large expense for the convenience
and welfare of the public, and thereafter seeks
to enjoin such use of the property, or to eject the
occupant therefrom, and thus cause great damage to
the corporation on the one hand and serious inconvenience
to the public on the other, he is justly denied
such relief, for the reason that he can be adequately
protected by receiving compensation. But it does not
follow that he may be permanently deprived of his
property without compensation, or that he shall be
placed in any worse position, so far as his right to a
money judgment is concerned, than he would have occupied
had he not acquiesced in the improvement.
Where one is aware of the situation and desires to
insist upon his strict legal right, he should proceed
without unnecessary delay. If, by his declarations or
conduct, he induces another to believe that he does not
intend to assert such rights but is willing to waive
them for a just compensation, and the other party, in
reliance thereon, goes ahead with the improvement in
the expectation that payment of a fair compensation
will be accepted in lieu of the rights thus surrendered,
the courts may thereafter properly refuse to enforce
those rights and compel him to accept compensation as
fixed by an impartial tribunal. In other words, the
failure to pursue appropriate procedure to acquire the
property is not fatal to the rights of the party in
possession, provided it elects to make full and adequate
compensation to the owner, but it cannot hold the

 522    AYLMORE v. SEATTLE.
                Opinion Per WEBSTER, J.           100 Wash.

undisturbed possession of the property of another and
elect not to pay.

As was said by Judge Rudkin in Slaght v. Northern
Pac. R. Co., 39 Wash. 576, 81 Pac. 1062:

"If a judgment in ejectment at law, or decree of
injunction in equity, would have the effect of stopping
the operation of the railroad, or disabling it from
discharging its duties to the public, there would be strong
and controlling reasons why such judgment or decree
should not be awarded. But, if proceedings are stayed
as in this case, and the only effect of the judgment in
ejectment is to compel the railway company to make
compensation for the property taken, we see no valid
,objection to such proceeding, on the ground of public
policy or otherwise."

Upon what principle of law, justice or reason can
it be said that, because one clothed with the right to
condemn private property fails to exercise it and,
without complying with the law, goes upon the property of
another and carries out its public purposes without
hindrance or interference from the owner, it should
not thereafter be required to do what it should have
done in the first instance - make just compensation to
the owner? Why should the property holder, whose
acquiescence has redounded to the benefit and convenience
of the taker and whose right to compensation
is in lieu of his property, have any Jess period in which
to recover the amount due him than he would have had
to reclaim his property had he not thus accommodated
the corporation? Why should a municipality, which
has not exercised a right conferred upon it by the
sovereignty in the manner defined by the author of the
right, gain an additional advantage over a private
owner by virtue of its own unauthorized procedure ?

Moreover, to hold that the action for compensation
is barred in two years would be to read an exception in
the ten-year statute relating to the recovery of real

                AYLMORE v. SEATTLE.                523
 Mar. 1918          Opinion Per WEBSTER, J.

property. The effect of such a decision would necessarily
be to permit a title to real property, for all practical
purposes, to be acquired by adverse possession
for the period of two years, when, in all other cases, it
could only be acquired in ten years.

We think it is too plain for serious debate that,
while the owner may not, by an action of ejectment,
recover the property itself where he has acquiesced in
its being taken without condemnation, he may maintain
an action in the nature of ejectment to obtain the
substituted relief. His right of recovery is rounded
upon, and grows out of, his title to the land, and until
such title is lost by adverse possession, he should have
the right to maintain an action to recover that which
represents the property itself. Any other view is to
sacrifice substance to mere form.

In Kincaid v. Seattle, supra, Judge Chadwick said:

"The remedy of the one whose property is taken is
immaterial so long as it leads to compensation as
provided in the constitution." Precisely so. But when
the remedy afforded amounts to a denial or a
curtailment of such constitutional right, it ceases to be
immaterial. Thenceforth it is violence done to the rights
of the injured owner, if not to the constitution itself.
While the respondent's position may square with the
precept that unto every one that hath shall be given,
but from him that hath not shall be taken away even
that which he hath, the constitution of Washington
will not admit of its application to this class of cases.
We conclude that the case does not fall within the
two-year statute, for the reason that it is governed by
the limitation prescribed in the ten-year statute. The
judgment is reversed.

ELLIS, C.J., FULLERTON, PARKER, and MAIN, JJ.,
concur.