Shaw v. Yakima, 183 Wash. 200, 48 P.2d 630 (1935).


 200    SHAW v. YAKIMA.
                     Syllabus.                183 Wash.

          [No. 25336. En Banc. August 17, 1935.]
     EMMA I. SHAW, Respondent, v. THE CITY OF YAKIMA
                et al., Appellants. 1

a city lot has a right to use the abutting parking strip
and plant and maintain a tree thereon subject to the right
of the city to maintain the street in a safe condition for
traffic; and the city acts arbitrarily and without right or
reason in cutting down a tree that is not in any way a
nuisance and does not interfere with any city improvement.

DEFENSE. In a tort action against a city, an affirmative
defense that plaintiff "failed to file a verified claim"
within the time required by law, sufficiently plods that no
claim was filed against the city, in the absence of motion
or demurrer.

will take judicial notice of a city charter requiring that
claims against a city sounding in tort must be filed within
thirty days.

TO COMPLAINT. Where the answer in a tort action against a
city raises the point that no claim was filed against the city,
from which it would appear that the complaint failed to state
a cause of action, the supreme court will determine whether a
claim was a condition precedent to action, although first raised
on appeal.

REMOVAL OF TREE FROM PARKING STRIP. A city's unlawful cutting
down of a tree upon plaintiff's parking strip does not constitute
a taking of plaintiff's property for public use without just
compensation having been first made, within Const. Art. I, SS 16;
hence the filing of a claim for the tort is a condition precedent to

1 Reported in 48 P.2d 630.

                    SHAW v. YAKIMA.                    201
 Aug. 1935          Opinion Per BEALS, J.

Appeal from a judgment of the superior court for
Yakima county, Hawkins, J., entered April 14, 1934,
upon findings in favor of the plaintiff, in an action
in tort, tried to the court. Reversed.

V. O. Nichoson and N.J. Benoit, for appellants.

George C. Twohy and Frank J. Allen, for respondent.



BEALS, J. - Emma I. Shaw, the plaintiff in this
action, has for many years owned a corner lot in
Yakima, on which she has resided. Approximately
fifteen years prior to the institution of this action, she
planted in the parking strip, near the street corner
of her lot, a two-year-old hard maple tree, which, in
the course of time, grew and flourished, becoming an
object of beauty, which added greatly to the enjoyment
of plaintiff's property.

During the month of January, 1933, agents of the
city of Yakima cut the tree down and removed it, over
plaintiff's protest; and thereafter plaintiff instituted
this action against the city and certain of the
municipal officers thereof, praying for damages by way of
compensation for the destruction of the tree. The
city answered, denying liability and pleading affirmatively
due authority in its board of park commissioners
to remove the tree in question, if in their
judgment it should be removed; alleging that the tree
constituted a traffic hazard, in that it interfered with
the view of persons using the streets near the intersection
at which the tree stood; and further pleading
that plaintiff had filed with the city no verified claim
based on her alleged damage.

The action was tried to the court sitting without a
jury, and resulted in findings in plaintiff's favor, the
court fixing plaintiff's damage in the sum of one

 202    SHAW v. YAKIMA.
                Opinion Per BEALS, J.           183 Wash.

hundred dollars, and granting judgment in her favor for
treble that amount, holding that plaintiff was entitled
to such damages pursuant to Rem. Rev. Stat., SSSS 939,
6437-4 [P. C. SSSS 8557, 5992-5]. The court dismissed
the individual defendants from the action, and from
a judgment against the city of Yakima in the sum of
three hundred dollars, together with costs, the city
has appealed. Plaintiff did not appeal from the dismissal
of her action as against the individual defendants.

[1] Of course, the ultimate title to that portion
of the street upon which the tree in question stood
rested in respondent, subject to the city's rights under
the dedication of the land for street purposes. There
rested also in respondent a qualified and restricted
right to make reasonable use of that portion of her
half of the street abutting on her property set aside
as a parking strip, which respondent had the right
to care for and beautify by planting grass, shrubs or
trees thereon, subject always to the paramount right
of the city to maintain its streets in a safe condition
for traffic and to maintain the paved portion of the
street and the sidewalk clear from obstructions and
available for the use of the public.

The city having so improved the street as to leave
the vacant strip of land, respondent was clearly within
her rights in planting the tree and maintaining the
same in the position in which it grew, subject to the
right of the city to abate the tree as a nuisance, if
for any reason it should come within such a
classification, or if it should interfere with the improvement
of the street area. It does not appear from the evidence
that the tree was in any way a nuisance or that
it interfered with any improvement which the city
desired to effect, and we are satisfied that, in

                    SHAW v. YAKIMA.                     203
 Aug. 1935          Opinion Per BEALS, J.

destroying the same, the city acted arbitrarily and without
either right or reason.

[2] In its answer to the amended complaint,
appellant stated its first affirmative defense as follows:
"That plaintiff failed and neglected to file a verified
claim within the time and as required by law for the
damages alleged to have been caused in plaintiff's
complaint. "

Respondent argues that this affirmative defense is
not well pleaded, and, being in the nature of a denial
in manner and form, raises no issue. Under the modern
liberal rules for the construction of pleadings,
this contention is not well taken. In the absence of
motion or demurrer, the allegation should be considered
as properly pleading that respondent had filed
no claim against the city.

[3] The charter of the city of Yakima, a city of
the first class, requires that claims against the city,
whether sounding in tort or arising out of contract,
shall be presented in writing to the city commission
within thirty days after the date upon which it is
claimed the damages were sustained. Article 10, SS 1,
Charter of the City of Yakima. Of this charter, this
court will take judicial notice. In re Cloherty,
2 Wash. 137, 27 Pac. 1064; Green v. Tidball,
26 Wash. 338, 67 Pac. 84, 55 L. E. A. 879;
Seattle v. Turner, 29 Wash. 515, 69 Pac. 1083;
Moore v. Dresden Investment Co.,
162 Wash. 289, 298 Pac. 465, 77 A. L. E. 1258.

[4] Respondent argues that this court should not
judicially notice the charter of the city of Yakima,
contending that the matter was not urged in the court
below and was argued for the first time in appellant's
brief filed in this court. In this case, appellant city
did, by affirmative defense in its answer, raise the
question of the failure of respondent to file a claim.
The city charter requiring in certain cases the filing

 204    SHAW v. YAKIMA.
                Opinion Per BEALS, J.           183 Wash.

of a claim, if it be held that respondent's right of
action falls within a class covered by the charter
provision, then without an allegation that such a claim was
filed, her complaint fails to state a cause of action.
Smith v. Spokane,
54 Wash. 276, 102 Pac. 1036. The
defense was, however, raised in appellant's answer,
even though the pleading was inartistically drawn.

We conclude, then, that the question of whether or
not under the law respondent was required, as a condition
precedent to maintaining her action, to file her
claim with the city, is before us for determination.

[5] Respondent contends that her claim comes
within the rule laid down by this court in the cases of
Kincaid v. Seattle, 74 Wash. 617, 134 Pac. 504, 135 Pac.
820, and Wong Kee Jun v. Seattle, 143 Wash. 479, 255
Pac. 645, 52 A. L. R. 625. In the first of the cases
cited, it appeared that the city, without having condemned
the right to do so, improved a street, and in
the course of an extensive fill which was required to
bring the street to the selected grade, extended the
slope of the fill on to plaintiff's property, which
abutted on the street which was being improved. It was
held that the action of the city constituted a taking,
within article I, SS 16, of the state constitution,
prohibiting the taking or damaging of private property for
public or private use without just compensation having
been first made. In the later case above cited, it was
held that a claim by the owner of real property, based
upon damages occasioned by a slide caused by the removal
by the city of the lateral support of the property,
was within the constitutional provision, and that
damages were recoverable under the constitution without
the filing of a claim.

Respondent's action does not fall within the protection
of the constitution. The land embraced within the
boundaries of the streets adjoining respondent's property

                SHAW v. YAKIMA.                     205
 Aug. 1935          Opinion Per BEALS, J.

was dedicated for street purposes. While the ultimate
reversion of the land so dedicated rested in the
owners of the abutting property, and while such owners
had a qualified property right in certain appurtenances
to the dedicated property, such as the tree with
which we are here concerned, the city to which the
land was dedicated may and should properly improve
the same for the benefit of the abutting owners and the
public at large, and such an act as the cutting of the
tree does not constitute a taking of respondent's
property within the constitutional provision. In the two
cases cited, there was an actual physical invasion of
the land owned in fee by the citizen, the ownership
being subject to no easement, right or estate whatsoever
on the part of the city.

In the case at bar, there was no interference with the
lots owned by respondent. Under certain circumstances,
a city has the right, and it may well be its
duty, to remove trees from land dedicated to public
use as streets. The city must, of course, in accomplishing
such a work, proceed in a lawful way, but the
qualified ownership existing in the owner of abutting
property in a tree standing in a street does not
constitute private property in the sense that, before the city
may interfere with such a tree, it must by legal proceedings
condemn the right to do so.

In this instance, any right which respondent may
have had against the city was simply a claim sounding
in tort, and, as a condition precedent to maintaining
an action against the city, based upon the removal of
the tree, respondent was required to file a claim in
accordance with the charter of the city of Yakima and
the statutes of the state of Washington applicable to
such a situation. This, respondent did not do.

The judgment appealed from is accordingly

 206    SHAW v. YAKIMA.
                Dissenting Opinion Per HOLCOMB, J. 183 Wash.

reversed, with instructions to the trial court to dismiss
the action.


HOLCOMB, J. - I dissent.

The record in this case shows that the tree was taken
by the city, along with others, to provide employment
and wood for the unemployed. The destruction of the
tree was a taking and hence a damaging to the owner
of abutting property on the street. Simons v. Wilson,
61 Wash. 574, 112 Pac. 653. That being the case it was,
as alleged in the complaint of respondent, a violation
of her constitutional right to damages for the taking
or injuring of her real estate. Kincaid v. Seattle,
74 Wash. 617, 134 Pac. 504; 135 Pac. 820; Wong Kee Jun
v. Seattle, 143 Wash. 479, 255 Pac. 645, 52 A. L. R. 625.

Under those cases and several others cited therein,
the city could not go upon the real estate in question as
a trespasser, or tort-feasor, if it would. See, also,
Great Northern R. Co. v. State, 102 Wash. 348, 173
Pac. 40, L. R. A. 1918 E 987. Therefore, no claim was
necessary to be filed by respondent to support her
action for the taking or damaging of her real estate
without condemnation.

By the same legal principle, however, it is inconceivable
that a municipality could be held for punitive
or exemplary damages. The allowance of treble damages,
of course, is only upon the theory of exemplary

The statute, Rem. Rev. Stat., SS 939 [P. C. SS 8557],
authorizing treble damages in case of cutting down
trees on another's real estate is, so far as material, as

"Whenever any person shall cut down . . . any
tree, . . . on the land of another person, . . .
without lawful authority, in an action by such person,
. . . against the person committing such trespasses,

                     SHAW v. YAKIMA.                207
 Aug. 1935          Dissenting Opinion Per HOLCOMB, J.

. . . if judgment be given for the plaintiff, it shall
he given for treble the amount of damages claimed.
. . ."

In an early case, Gardner v. Lovgren, 27 Wash. 356,
67 Pac. 615, we held that this statute, being of a penal
nature, must be construed strictly, and that there must
be the intent to commit the trespass as a necessary
element, in order to justify the imposition of treble
damages. See, also, Skamania Boom Co. v. Youmans,
64 Wash. 94, 116 Pac. 645. The rule of the Gardner case,
supra, was reaffirmed in Bailey v. Hayden, 65 Wash. 57,
117 Pac. 720.

Although the agents of the city may have been trespassers
and tort-feasors in this case, they were absolved
by the trial court, from which action respondent
did not appeal. They may have been liable for treble
damages had they been held liable, under the case of
Simons v. Wilson, supra. However, they are not here.

The actual damages having been found by the court
to amount to one hundred dollars, although it seems
rather large for the nature of the injury, should be
allowed as compensatory damages.

The judgment allowing treble damages should be reversed,
and the cause remanded with instructions to
enter judgment for actual damages in the sum of one
hundred dollars.