Parke v. City of Seattle

31 P. 310, 5 Wash. 1, 1892 Wash. LEXIS 1

• Court: Washington Supreme Court
• Decided: October 11, 1892
• Docket: No. 411
• Status: Published

Opinions

The opinion of the court was delivered by

Stiles, J.

The appellant, as plaintiff in the superior court, brought this action against the city of Seattle to recover damages from the municipality for so negligently excavating certain streets abutting upon his premises as to cause the hillside, of which his premises formed a part, to bodily slide down into the streets, and thus cause great and permanent impairment of the value of his premises, and the destruction of his buildings and other improvements. To-the complaint the defendant demurred, and the demurrer was sustained, and judgment against the plaintiff rendered accordingly.

The premises were at the intersection of Sixth and Mill streets. The improvements, which embraced a house, outbuildings, fence, lawn, shrubbery, etc., all worth $5,000, were made in 1886, and the alleged damage was done at some time before the adoption of the constitution, in 1889. The complaint charged:

“(4) That at the time of making said improvements, and always up to the time of the commission of the grievances hereinafter mentioned, the soil and earth of said premises, and the adjoining soil and earth of said Mill and Sixth streets, and of said alley, and the soil and earth immediately to the eastward of said premises and alley, sloped-downward from east to west at an average and natural rate of, to wit, one foot vertical to four feet horizontal,' and the soil and earth of said premises were so related to the soib and earth in said Sixth and Mill streets adjoining said premises, and to the soil and earth in said alley adjoining said-premises, and to the soil and earth lying within several hundred feet immediately to the eastward and northward of said alley and premises, that the soil and earth of said Sixth- and Mill streets, adjoining said premises, formed the natural, and necessary support of the soil and earth of said premises, and formed, together with the soil and earth of said premises, the natural and necessary support of the soil.and earth in said alley adjoining said premises, and formed, together with the soil and earth of said premises, and the soil and earth of said alley adjoining said premises, the natural and necessary support of the soil and earth immediately to the eastward and northeastward of said alley and premises; all which the said city at the time of the commission of said grievances, and at all times, well knew. (5) That, after the making of the improvements mentioned in the third paragraph of this complaint, said city graded said Mill street, and so carelessly, negligently and unskillfully excavated the soil and earth in said Mill and Sixth streets, adjoining said premises of plaintiff, and so carelessly, negligently and unskillfully left such excavation without any proper or any means of support for the soil and earth of said premises, or for the soil and earth of said alley adjoining said premises, or for the soil and earth lying immediately to the eastward and northeastward of said alley and premises, that all the soil and earth of said premises, and of said alley adjoining the same, and all the soil and earth for several hundred feet immediately to the east, and northeast of said alley and premises, all forthwith began, and thenceforth hitherto have continued, and still continue, and will indefinitely continue, to creep, slide, move and go southwesterly and downwards in the direction of said slope, and upon, over, across and off of said premises and into said Sixth and Mill streets and Yesler avenue, in such quantities and to such an extent that much more and many times more soil has long ago fallen into said Sixth and Mill streets out and off of said premises by reason of said excavation and said carelessness, negligence and unskillfulness than was or is sufficient to give the natural slope of such earth for such excavation, and in such manner and to such an extent that great quantities of soil and earth have come •and are coming upon said premises out of and off of said alley, and out and off of the land immediately to the eastward and northeastward of said alley and premises, by reason of said excavations and said carelessness, negligence, and unskillfulness, all to the great injury and destruction of said premises, and the said improvements thereon, and to the damage of plaintiff in the sum of seven thousand seven hundred and twelve dollars ($7,712); that such creeping, sliding, moving and going were not, nor was or is any of the same, caused by, or in any measure or degree caused by, or attributable to, the weight of or otherwise to said buildings or improvements, or any thereof, or any part thereof. ’ ’

This pleading presents the question whether, before the constitution, a municipal corporation was liable for any damage caused by its having taken away the lateral support from lands abutting on a street which it was grading. Two grounds of recovery are urged, viz.: First, The damage to the land by causing it to slide off; and, secondly, the damage to the improvements on the land. If this suit were between private persons, the first element of damage would be recognized as proper if there was substantial injury done, but the recognition of the second would depend on whether there was negligence on the part of the excavator in making his excavation. This summary of the rule is amply considered and explained in Gilmore v. Driscoll, 122 Mass. 199. But the respondent objects that because it was engaged in a lawful opening and improving of streets it cannot be held liable for such injuries. The basis of this claim is that such injuries are what the courts term ‘ ‘ consequential, ’ ’ which are without remedy. There is no doubt that what are termed “consequential” injuries are by most of the courts held to be remediless, although nearly all of the courts in this country have at one time or another regretted the existence of such a rule, and that they could not under the law follow the decisions of the supreme court of Ohio, which are to the contrary. Yet we find a number of the states granting relief in cases of the particular character of the one at bar, and although they are sometimes loosely denominated “consequential injuries,” the fact is that they are not consequential, but direct, injuries. Judge Dillon, in his Municipal Corporations (§ 991), says:

‘ ‘ Where the power is not exceeded, there is no implied or common law liability to the adjacent owner for grading the whole width of the street, and so close to his line as to cause his earth or fences and improvements to fall, and the corporation is not bound to furnish supports or build a wall to protect it. The abutting owner has, as against a city, no right to the lateral support of the soil of the street, and can acquire none from prescription or lapse of time. ’ ’

He also says, in § 990:

‘ ‘ There is no such implied or common law liability, even though in grading and leveling the street a portion of the adjoining lot, in consequence of the removal of its natural support, falls into the highway. ’ ’

This authority is strongly relied upon by the respondent in this case, but after a careful examination of the citations made by the learned author, while we do find his text is fully sustained in very numerous cases in England and in this country, where purely consequential injuries have been suffered, we also find that the cases which he cites to support the proposition that the abutting owner has, as against the city, no right to lateral support, do not sustain him. In all these cases cited it was either the inconvenience of access caused by the change of grade or the necessity of going to expense in sustaining the weight of buildings erected upon the abutting owner’s land close up to the line of the street, that was the ground of the action. No one of them was maintained for the removal of the lateral support of the abutter’s land. It is more than likely that in these cases no damages were sought for the caving of the land itself, because the actual damage resulting from such a caving- in most instances would be but little, if anything, more than nominal; but where the caving or sliding is as extensive and material as it is in this case, and knowledge of the nature of the soil, and of the certainty that it would cave and slide, is charged upon the city, as appears by the complaint in this case, it would certainly be a great hardship, indeed, if the city could go on with gross recklessness to remove what it must have seen was the only support for tlie whole hillside. Knowledge of the character of the soil, and of its certainty to cave so as to materially injure the beneficial use of the land, would make it negligence for the city to go on with its work without providing means to resist the threatened calamity.

A similar view was taken of this matter in the case of Keating v. Cincinnati, 38 Ohio St. 141, where the facts were almost identical in every particular with those at bar. That case was decided not alone upon the authority of the Ohio cases, the .peculiarities of which have been alluded to, but upon that of other leading, well-considered cases, particularly that of Gilmore v. Driscoll, cited above. The same court had previously held, in City of Cincinnati v. Penny, 21 Ohio St. 499, that the corporation was not liable for damages to buildings caused by negligence in making the excavation, where their weight contributed to the injury. See also the very recent case of Stearns’ Ex’r v. City of Richmond (Va.), 14 S. E. Rep. 847. In that case the right to recover was extended to buildings. The court used this language:

“Every owner of land is entitled, as against his neighbor, to have the earth stand and the water flow in its natural condition. ... In the case of land, which is fixed in its place, each owner has the absolute right to have his land remain in its natural condition, unaffected by any act of his neighbor; and, if the neighbor digs upon or improves his own land so as to injure this right, an action may be maintained against him without proof of negligence. And although this natural right does not extend to buildings increasing the downward and lateral pressure, and therefore, if damage is done to them by digging in the adjoining soil, no action can be maintained therefor unless negligence be proved, yet it is settled by the recent decisions in England, and it would seem clear upon principle, that where land upon which there are buildings slides or subsides by reason of such digging, and the buildings are in consequence damaged also, and their weight in no way-contributed to the result, then the damage done to the buildings may be taken into consideration in estimating the damages.” Brown v. Robins, 4 Hurl. & N. 186; Stroyan v. Knowles, 6 Hurl & N. 454; Lewis, Em. Dom., §§ 100, 151.

The time has been when it was the fashion of courts to regard the state or its instruments (municipal corporations) as in some way superior in their right to do mischief to the individual over private persons; as, for instance, in St. Louis v. Gurno, 12 Mo. 414, where a city which improved a street under competent authority was held not responsible for any damage it might cause by defects in the plan of its improvement whereby masses of water were thrown upon the lands of abutting owners, although it was conceded that if the plan were negligently executed there might be liability. But such cases have since been substantially overruled, as St. Louis v. Gurno was expressly overrulled in Thurston v. City of St. Joseph, 51 Mo. 510, on the ground that the casting of masses of water and earth upon the premises of an abutting owner is a taking of lands, within the constitutional prohibition. The leading case of Pumpelly v. Green Bay Co., 13 Wall. 166, set at rest all such claims on the part of public corporations, and is of especial authority in this case, the facts of which occurred during our territorial existence. Speaking of these consequential injuries, and the ruling of courts thereon, the court said:

“But we are of the opinion that the decisions referred to have gone to the uttermost limit of sound judicial construction in favor of this principle—that is, the non-liability for consequential injuries—and in some cases beyond it, and that it remains true that where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the constitution, and that this proposition is not in conflict with the weight of judicial authority in this country, and certainly not with sound principle. ’ ’

But what possible distinction there can be between the injury which is occasioned by casting water, earth, sand or other material upon one’s land, and having the entire surface of the land dragged or forced away, it is hard to comprehend. Wherein is the one less a “taking” than the others Another case in the United States supreme court is that of Transportation Co. v. Chicago, 99 U. S. 635. The plaintiff owned Avarehouse property which abutted upon La Salle street and the Chicago river. The city, in building a tunnel under the river, excavated the street and erected a cofferdam in the river, the effect of which was to cut off access to the warehouses from both the street and the river during the time the work was in progress. This injury, and certain alleged injuries to the building, by reason of the negligent excavation, were sued for. It will be observed that the temporary obstruction of the access Avas purely a consequential injury, which, the court held, there could be no recovery for. But after ruling on this point against the plaintiff, the circuit court charged the jury that if they found that the injuries to the building were caused by the negligent and unskillful manner in which the work was done by the city, and not by reason of the weight of the building, and if the building had not been repaired so as to make it as useful for the plaintiff’s purposes as it was before the injuries occurred, then the plaintiff would be entitled to such damages as would make it as useful for its purposes. On appeal the supreme court said concerning this charge:

“There was evidence at the trial that during the progress of the necessary excavation of La Salle street a portion of the walls of the plaintiff’s buildings on the lot cracked and sunk. This was caused by the caving in of the excavation in the street, the timbers used for bracing the sides having given way. . . . We think this instruction was entirely right. The general rule may be admitted that every land owner has a right to have his land preserved unbroken, and that an adjoining owner excavating on his own land is subject to this restriction; that he must not remove the earth so near to the land of his neighbor that his neighbor’s soil will crumble away under its own weight and fall upon his land. But this right of lateral support extends only to the soil in its natural condition. ’ ’'

See, also, Thurston v. Hancock, 12 Mass. 220.

The complaint in this case is sufficiently specific in describing the acts constituting the alleged negligence through which the plaintiff suffered injury to meet the requirements of good pleading. The judgment will therefore be reversed, and the cause remanded for trial.

Anders, C. J., and Dunbar, J., concur. Scott, J., dissents.