Great Northern R. Co. v. State, 102 Wash. 348, 173 Pac. 40

                GREAT NORTHERN R. CO. v. STATE.           349
 May 1918               Opinion Per HOLCOMB, J.

the act is not tortious and the state is liable for the injuries
inflicted.

SAME - LIABILITY OF STATE - DAMAGES. Where the state in
building a highway injures a railroad by blasting and dumping rock
upon the track, it is liable for the increased expense incurred in
operating trains and time consumed in making repairs and labor and
supplies on account of delays, as a deprivation of the use of its
property, as though it had been physically taken.

SAME - LIABILITY OF STATE - DAMAGES - OFFSET OF BENEFITS. If
a railroad company, damaged by the building of a state highway,
was benefited in a special degree, the state may offset any
benefits that may be ascertained with reasonable definiteness,
under Const., art. 1, SS 16, providing that no right of way shall
be appropriated to the use of any corporation "other than
municipal" until full compensation is paid, irrespective of any
benefit from the improvement.

SAME - LIABILITY OF STATE - DAMAGES - EVIDENCE. In an action
for damages to a railroad track through the blasting for a state
highway, it is error to allow the contractor to testify that the
company refused to allow him to take up the rails before setting
off blasts, and that the same would have avoided the damage, there
having been no condemnation, as temporary removal interfered with
the owner's use.

Cross-appeals from a judgment of the superior court
for Thurston county, D. F. Wright, J., entered
December 16, 1916, upon the verdict of a jury rendered in
favor of the plaintiff, in an action for damages to
property through the construction of a state highway.
Reversed on plaintiff's appeal.

F. V. Brown and F. G. Dorety, for plaintiff.

The Attorney General and Glenn J. Fairbrook, Assistant, for
defendant

 350    GREAT NORTHERN R. CO. v. STATE.
                Opinion Per HOLCOMB, J.           102 Wash.

along the shore at the base of the mountain, and the
waterfront road of the Pacific highway, which was constructed
by the state in 1914, 1915 and 1916, was built
upon the hillside approximately parallel with and from
125 to 175 feet above the railroad track. The hillside
consists of a thin layer of top soil over a foundation of
solid rock. On account of the steepness of the bluff it
was necessary to blast out a shelf for the highway and
to dump material on the hillside and railroad track
below. This caused slides, obstructed the track, bent
rails, damaged ties, poles and wires, and delayed
trains, for which plaintiff claims an expenditure of
$16,715.53, and an estimated sum of $25,000 to protect
against imminent danger of further damage from
slides caused by deposits and impaired drainage. Every
effort was made to avoid unnecessary damage.
Extra rails and ties were provided in advance, flagmen
were stationed at the danger zones, a special telephone
was installed, and the contractor's men employed upon
the state highway always helped to clear the track,
working in company with the railway section crew.
Notwithstanding these precautions, the plaintiff, in
two years during the construction of the highway, was
forced to expend $15,576.80 in replacing the rails and
equipment, removing slides and debris, paying train
crews during periods of delay, providing flagmen, etc.
Of this sum, bills amounting to $1,139.22 were paid by
the state. A written stipulation was filed covering the
amount of expenditures, to which was attached itemized
bills showing the amounts claimed for train delays,
labor, rental of equipment, and other items. It
was stipulated that these items were actually expended
in connection with material which fell upon the railroad
track, but it was denied that the falling of the
material upon the track was caused by the highway
construction or that the state was responsible therefor.

_

                GREAT NORTHERN R. CO. v. STATE.           351
 May 1918               Opinion Per HOLCOMB, J.

The state's demurrer to the complaint and motion
for judgment non obstante veredicto were overruled,
and the state has cross-appealed from the orders overruling
the demurrer and denying its motion for judgment
non obstante veredicto. A verdict was returned
in favor of the plaintiff in the sum of $7,391.34. The
plaintiff moved for new trial on the ground of errors
in instructions and in admission of evidence, which
motion was denied and judgment entered on the verdict.
Plaintiff appeals from the judgment and order denying
a new trial.

The plaintiff's theory is that, in inflicting the
damage, the state acted in its sovereign capacity, that it
was necessary for the accomplishment of a public object,
and that plaintiff is entitled to just compensation
under Const., art. 1, SS 16. The fact that the state did
not condemn plaintiff's property in advance does not
absolve it from liability where no negligence is charged
in the performance of a governmental duty. Kincaid
v. Seattle, 74 Wash. 617, 134 Pac. 504, 135 Pac. 820.

The constitutional provisions must have been intended
to protect all the essential elements of ownership
which make property valuable. Among these elements
is fundamentally the right of user, including, of course,
the corresponding right of excluding others from the
use. A physical interference with the land which substantially
obstructs this right takes the plaintiff's
property to just so great an extent as it is thereby
deprived of its right. To deprive one of the use of his
property is depriving him of his property, and the
private injury is thereby as completely effected as if
the property itself were physically taken. Accordingly
it has been held that any use of land for a public
purpose which inflicts an injury upon adjacent land such
as would have been actionable if caused by a private
owner is a taking and damaging within the meaning of

 352    GREAT NORTHERN R. CO. v. STATE.
                Opinion Per HOLCOMB, J.           102 Wash.

the constitution. Nevins v. City of Peoria, 41 Ill. 502,
89 Am. Dec. 392, lays down the principle with which we
are in accord:

"Neither state nor municipal government can take
private property for public use without due compensation,
and this benign provision of our constitution is to
be applied by the courts whenever the property of the
citizen is invaded, and without reference to the degree.
The same law that protects my right of property
against invasion by private individuals, must protect it
from similar aggression on the part of municipal corporations.
A city may elevate or depress its streets,
as it thinks proper; but if, in so doing, it turns a stream
of mud and water upon the grounds and into the cellars
of one of its citizens, or creates in his neighborhood a
stagnant pond that brings disease upon his household,
upon what ground of reason can it be insisted, that the
city should be excused from paying for the injuries it
has directly wrought? It is said that the city must
grade streets and direct the flow of waters as best it
can for the interest of the public. Undoubtedly, but if
the public interest requires that the lot of an individual
shall be rendered unfit for occupancy, either wholly
or in part, in this process of grading, or drainage, why
should not the public pay for it to the extent to Which
it deprives the owner of its legitimate use? Why does
not the constitutional provision apply as well to secure
the payment for property partially taken for the use or
convenience of a street as when wholly taken and converted
into a street? Surely the question of the degree
to which property is taken can make no difference in
the application of the principle. To the extent to which
the owner is deprived of its legitimate use and as its
value is impaired, to that extent he should be paid."

It is contended by the state that a suit against it to
recover for damages will not lie, and that the damage
herein involved is not for a public use within the
meaning of the constitutional provision requiring
compensation. We cannot accede to this contention; for if
the state could have condemned the right to inflict the

                GREAT NORTHERN R. CO. v. STATE.           353
 May 1918               Opinion Per HOLCOMB, J.

necessary damage or invade plaintiff's property, its
failure to so condemn is not an excuse to deny plaintiff's
recovery. Kincaid v. Seattle, supra; Provident
Trust Co. v. Spokane, 75 Wash. 217, 135 Pac. 927, Ann.
Cas. 1915C 63.

When taking private property for a public use, the
state acts in its sovereign capacity. Gasaway v. Seattle,
52 Wash. 444, 100 Pac. 991, 21 L. R. A. (N. S.) 68.
It goes not as a trespasser, inspired by selfish or
unlawful motive, but as one taking without malice or
intent to do wrong, and presumptively for the public
good. Under the statute, it cannot put on the cloak of
a tort feasor if it would. It cannot plead a wilful
wrong to defeat a just claim. The action for damages
for land taken without compensation is usually spoken
of and is in its nature one of trespass, but it is not
strictly so. If the state or its agent, in the prosecution
of a public work, takes no more than is necessary and
prosecutes its work without negligence it is neither a
trespasser nor a tort feasor. Kincaid v. Seattle,
supra. If we should hold that the state cannot condemn
the right to inflict the necessary damage in the
prosecution of a public work it, in effect, would hold
that the officers and contractors of the state could be
enjoined from committing the damage.

While the work was in progress, the plaintiff
attempted to enjoin the contractor from inflicting the
damage. The court said:

"To hold to the contention of complainant [i. e. to
grant the injunction] would render the state impotent
in this enterprise and destroy a large public work of
public necessity." Great Northern R. Co. v. Quigg,
213 Fed. 873, 879.

In our opinion, the theory that property rights are
ever to be sacrificed to public convenience or

 354    GREAT NORTHERN R. CO. v. STATE.
                Opinion Per HOLCOMB, J.           102 Wash.

necessity without just compensation is fraught with danger,
and should find no lodgment in American jurisprudence.
If the acts which caused the injury were done
under, and in consequence of, the direction of the state,
then the state is to be regarded as the superior and
responsible as such, although it does the work by contract
and by the direction of its duly authorized officers.
The plaintiff's complaint states a cause of action under
art. 1, SS 16, of our constitution, and the state's
demurrer was properly overruled. There is no merit in the
state's assignment of error in denying its motion non
obstante veredicto. This brings us to plaintiff's assignment
of errors.

I. Plaintiff assigns error in the court's instruction
No. 12. It, being contrary to the view we have above
expressed, is clearly erroneous.

II and III. It is contended by plaintiff that all of
the last paragraph of instruction No. 9 is erroneous,
but we think the same is correct, excepting that portion
which reads:

"But the state is not liable for any damage to the
plaintiff, if you find that any damages were so sustained,
which were not anticipated in or contemplated
in the plan of the construct, ion of the highway referred
to in the complaint, and if you find that any damage
has resulted to the plaintiff which was not contemplated
by the plan of the construction of the highway
such damage may not be considered by you in arriving
at your verdict."

That portion of the instruction is contrary to the
view we have expressed herein and if the same is supplanted
by that portion of plaintiff's third requested
instruction, or an instruction of similar import, it
would express the law as we have determined. That
portion of plaintiff's third requested instruction to
which we refer reads as follows:

                GREAT NORTHERN R. CO. v. STATE.           355
 May 1918               Opinion Per HOLCOMB, J.

"If, in addition to the foregoing facts which are
admitted, you should find that the plaintiff's railway has
been or will be physically damaged by the casting or
sliding of earth or rock upon it as a necessary result of
such construction of the state highway, or as a necessary
result of any work of highway construction performed
in a manner directed by the state officials in
charge, or in a manner necessary to, and reasonably to
be expected in, every practicable, known and practiced
engineering method of constructing such highway,
your verdict should then be for the plaintiff, and for all
of such damage you should award compensation for the
plaintiff."

IV. That portion of instruction No. 13 reading as
follows:

"And if you find that, in constructing said highway,
any contractor or employee of the state left loose rocks
or material upon said hillside which could have been
removed, but which, having been left on said hillside,
caused damage to the plaintiff, and if you find that
such material was negligently left on said hillside, then
the state is not liable for any damage which may have
resulted from such negligent acts,"
is erroneous, for it leaves the jury to determine
whether or not the material was negligently placed, when
there is no evidence of negligence, it having been admitted
that every portion of the work was done in a
prudent and cautious manner.

V. Instruction No. ll is erroneous under the rule
announced in Farnandis v. Great Northern R. Co.,
41 Wash. 486, 84 Pac. 18, 111 Am. St. 1027, 5 L. R. A. (N.
S.) 1086, and Patrick v. Smith, 75 Wash. 407, 134 Pac.
1076, 48 L. R. A. (N. S.) 740. In the latter case, the
court said:

"The authorities are agreed upon the question that
one who, in blasting upon his premises, casts debris
upon the land of another is liable in damages, regardless
of the degree of care or skill used in doing the
work. 19 Cyc. 7."

 356    GREAT NORTHERN R. CO. v. STATE.
                Opinion Per HOLCOMB, J.           102 Wash.

If blasting is necessary in the construction of a
highway, and damages cannot be avoided, the state may
inflict it by virtue of its sovereign right, but it must
respond in damages, as it cannot be considered as
tortious.

VI and VII. The court erred in failing and refusing
to give that portion of plaintiff's sixth requested
instruction, or an instruction of similar import, which is:

"You should also include in such verdict any increased
expense which has been or will be incurred by
the plaintiff in operating said railway during the time
necessarily consumed in making such repairs, such as
additional labor and supplies used on account of trains
delayed or annulled as a result of any damage to the
said railway, for which the state is liable under said
instructions."

Our views as heretofore expressed, explicitly point
to the theory that plaintiff may recover for deprivation
of the use of his property as though it was physically
taken. Therefore instruction No. 10 is clearly erroneous

VIII. Plaintiff contends that the court erred in
giving its instruction No. 14 relating to the setting off
of benefits. The constitution, art. 1, SS 16, provides:

"And no right of way shall be appropriated to the
use of any corporation *other than municipal* until full
compensation therefor be first made in money, or
ascertained and paid into court for the owner, irrespective
of any benefit from any improvement proposed by such
corporation."

We find no constitutional provision similar to ours.
Municipal corporations are permitted to offset benefits
from condemnation damages when taking and damaging
land for public uses. Spokane v. Thompson, 69 Wash. 650,
126 Pac. 47. The word "municipal" cannot
be construed strictly, but was intended to distinguish
public political bodies from corporations of a quasi

               GREAT NORTHERN R. CO. v. STATE.           357
 May 1918              Opinion Per HOLCOMB, J.

public nature. If the building of the state highway
benefited the railroad property in a special degree, and
such benefit could be ascertained with reasonable
definiteness and not merely speculatively, we think that
that benefit should be set off against the damages,
injury and inconvenience caused by the building of the
highway in a proper and careful manner. The instruction
was properly given.

IX. Plaintiff contends that the court erred in admitting
testimony that the Great Northern had refused
to allow the contractor to take up its rails from time to
time before setting off blasts, and in denying plaintiff's
motion to strike all of that testimony. It cannot
be said that the testimony of the contractor that he
requested plaintiff to take up and replace the rails of its
track each time a blast was to be exploded, and that he
could have avoided practically all of the damage if his
request had been granted, is proper. The state had
made no arrangements in advance, nor had it condemned
the property. The rails were a part of a continuously
operated property, fixed in place for use, and
a part of as necessary a public use as the state's
highway itself, and were there first. Surely the railway
company could not be made to take up its track without
condemnation. The contractor could not remove
them temporarily without interfering with the use of
the railway by its owner. This evidence should not
have been admitted, and the denial of plaintiff's motion
to strike it was erroneous.

For the errors herein indicated, the cause is reversed
on plaintiff's appeal and remanded for new trial.

ELLIS, C.J., MOUNT, MAIN, PARKER, WEBSTER, FULLERTON,
and CHADWICK, JJ., concur.