Marshall v. Whatcom County
255 P. 654
Wash.
1927
Check Treatment
Tolman, J.

This case presents, among other things, the question considered and decided in Wong Kee Jun v. Seattle, ante p. 479, 255 Pac. 645. The complaint contains four causes of action, all based upon the removal of lateral support in improving and maintaining a public highway, causing slides of earth and rock over and upon the plaintiffs’ agricultural land, obstructing their drainage system, lessening or destroying the productivity of the land, and the removal and casting of the *507 debris from the highway upon the plaintiffs’ land, with like effect. The slides occurred on and subsequent to December 27, 1922, and the action was commenced, without the previous filing of any claim, on December 24,1925, or lacking but a few days of three years after the first invasion. There was here no antecedent condemnation.

The holding in the Wong Kee Jun case is decisive upon the question of the filing of a claim, and there remains for discussion only the question of whether the two-year or the three-year statute of limitations applies.

Those cases which apply the two-year statute are Island Lime Co. v. Seattle, 122 Wash. 632, 211 Pac. 285, and the cases there cited, which are based upon the tort theory, and since we held in the Wong Kee Jun case that the tort theory cannot be applied in any case where the right invaded is' protected by the constitution, it follows logically that the three-year statute is the only one applicable. It was so held in Jacobs v. Seattle, 100 Wash. 524, 171 Pac. 662, L. R. A. 1918E 131, and we think that logically there is no escape from the conclusion that the two-year statute of limitations cannot be applied where the taking is by reason of the sovereign power, as held in the Wong Kee Jun case.

• The judgment appealed from is reversed, with directions to the trial court to overrule the demurrers.

Mackintosh, C. J., Askben, and Pabkeb, JJ., concur.