93 Wash. 692 | Wash. | 1916
As we proceed we think it will appear that this is nothing more than an action to recover damages resulting from trespass upon real property, though counsel for the plaintiff insist that it is, in substance, an action for relief upon the ground of fraud. The defendants demurred to the plaintiff’s complaint upon the ground that it appears from the allegations thereof that the action has not been commenced within the time limited by law. This demurrer being sustained by the trial court, and the plaintiff electing to not plead further, judgment of dismissal was rendered, from which it has appealed to this court.
The facts, as alleged in the complaint, may be summarized as follows: Appellant and respondents are the owners of adjoining mining claims in the Eureka mining district of Ferry county. Between September 15, 1910, and August
The only question here presented is as to when the statute of limitations commenced to run against appellant’s right to recover; that is, when did appellant’s cause of action accrue within the meaning of our statute? The portions of our statute here necessary for us to notice read as follows:
“Actions can only be commenced within the periods herein prescribed after the cause of action shall have accrued, except when in special cases a different limitation is prescribed by statute; . . Rem. Code, § 155.
“Within three years, — 1. An action for waste or trespass upon real property; ... 4s. An action for relief upon the ground of fraud, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud; . . Id., § 159.
We have a number of other special provisions providing for suspension of the statute in certain specified cases, but none of such provisions come as near touching the question of such suspension of the commencement of the running of the
It is argued in appellant’s behalf that this is an action for relief upon the ground of fraud, and that, therefore, the statute did not commence to run against appellant’s right to sue until it discovered its loss caused by respondents’ wrongful removal of the ore. It seems to us that this contention has been logically answered in our recent decisions in Cornell v. Edsen, 78 Wash. 662, 139 Pac. 602, 51 L. R. A. (N. S.) 279, and Thomas v. Richter, 88 Wash. 451, 153 Pac. 333. The Edsen case was one for damages against an attorney for wrongfully voluntarily dismissing an action, concealing the fact and leading his client to believe that his case had been decided against him upon the merits. This was held not to be an action for relief upon the ground of fraud, in that fraud was not the gravamen nor an essential element of the cause of action, and that, therefore, it was barred at the expiration of three years from its accrual, regardless of the knowledge of the client. The Richter case was one in which damages were sought against a trustee of a corporation for the benefit of creditors because of the unlawful diminution of the capital stock of the corporation by the trustee in violation of a statute making such act unlawful and rendering the-trustee personally liable to creditors therefor. This was also held not to he an action for relief upon the ground of fraud and that, therefore, it was barred, regardless of the stockholders’ knowledge of the wrong, at the expiration of
“To constitute an action for ‘relief on the ground of fraud,’ the fraud must be the substantive cause of the action, the cause without which the action would not exist; the fraud must have been practiced upon the complaining party, causing him to assume some obligation or liability or suffer some loss which but for the fraud he would not have assumed or suffered.”
This, it seems to us, is the key to the solution of the problem here involved. Nothing seems plainer to us than that appellant’s cause of action in this case does not rest upon the fact that there was wrongdoing on the part of respondents which could in a sense be characterized as fraud or deceit. An ordinary theft and the concealing of it is no less wrongful or fraudulent; yet, plainly, one who is deprived of his property by another by any such wrong has no more complete or perfect right of action for its recovery or damages for its loss than when his property is taken by some method unattended by wrong of this character. In other words, such fraud and deceit, if one chooses to so characterize the wrong, adds nothing to the completeness of the injured person’s cause of action.
Our attention has been called to two decisions which apparently hold that the secret taking of ore from beneath the surface of the ground is in effect a fraud upon the rights of the owner of the property trespassed upon, such as gives him a cause of action for relief upon the ground of fraud. Such, in substance, was the holding of the Pennsylvania supreme court in Lewey v. Fricke Coke Co., 166 Pa. St. 536, 31 Atl.
We are, however, unable to assent to this doctrine, and adhere to the views expressed in our own recent decisions above noticed, which we regard as controlling in this case. Much argument is indulged in by counsel for appellant touching the justice of the rule they contend for. This, however, it seems to us, as plausible as it is, has to do with the policy of the law only, which opens a wide field for discussion and difference of opinion. It is easy to argue relative to any statute of limitations as applied to a particular case that it works injustice. But it must be remembered that these are statutes of repose, and as said in Thomas v. Richter, supra:
“It is believed that it is better for the public that some rights be lost than that stale litigation be permitted.”
We conclude that the judgment must be affirmed. It is so ordered.
Morris, C. J., Mount, Main, Ellis, Fullerton, Holcomb, and Chadwick, JJ., concur.