92 Wash. 667 | Wash. | 1916
Proceedings in mandamus to compel the city, through its officials, to institute condemnation proceedings and assess and pay damages claimed to have been suffered by relator’s property by reason of a regrade of the street in front thereof during the summer of 1911. A demurrer was sustained to the application for the writ, and relator appeals.
The claim for damages here sought to be enforced is of the same character as those attempted to be set up in Spokane v. Onst'me, 86 Wash. 4, 149 Pac. 1, in which several
This action was not commenced until October 4, 1915, which, as will be seen by a reference to the Onstme case, was more than two years after the doing of the work and the resulting damages. Such delay is fatal to the right of action. The two-year statute of limitations applies to actions for damage to abutting property resulting from a change of grade. Denney v. Everett, 46 Wash. 342, 89 Pac. 934, 123 Am. St. 934. The fact that relator has slept upon her rights and permitted the period to lapse in which she could have brought an action for damages, thus depriving herself of a legal right, does not protect her in seeking to make use of mandamus to obtain the same relief for which, had she proceeded in time, her right in law would have been ample.
Relator’s position seems to be that, inasmuch as the city in instituting condemnation proceedings is acting in its sovereign capacity, no cause of action rests in the property owner, even though as to him the proceeding is without notice. The mere fact that the city in a condemnation proceeding acts in its sovereign capacity does not differentiate it from an individual who, without right, damages another’s property, and when the city elects so to proceed, it can be made to answer for the damages done in a direct action by the property owner. In seeking to change the grade of its streets it is not incumbent upon the city to institute proceedings against any other than those it believes will be damaged. If any property owner, as was said in the Kincaid case, asserts a contrary belief, the law affords him ample opportunity to protect himself, either by intervention in the original proceedings or by a separate action for damages in his own behalf.
The judgment is affirmed.