96 Wash. 632 | Wash. | 1917
— The purpose of this action was to recover damage to property by reason of the improvement of a city street. The cause was tried to the court and a jury, and resulted in a verdict in favor of the defendant. The plaintiffs appeal.
The facts are these: On the 19th day of June, 1908, and for some time prior thereto, the appellants were the owners of a tract of land consisting of approximately fifteen acres,
Prior to the institution of the action, and on April 19, 1909, the appellants filed a claim for damages with the city council, “by reason of the grading of Graham street,” and “entirely cutting off access to Graham street from Thirty-fifth avenue south, one of the streets dedicated in the plat of said addition (Willett’s addition) ; and that the said grading is being so conducted that a heavy cut is being made along and on Graham street in front of the center and west side of said addition, so as to cut off access to Graham street from 33d avenue south, one of the streets dedicated in the plat of said addition.”
In this claim for damages, no mention is made of the flooding of a portion of Willett’s addition by reason of inadequate, drainage. Another claim for damages was filed on May 31, 1913, and in this no item of damages for flooding is men
Upon the trial, the appellants offered evidence as to damages sustained by reason of the flooding, to which objection was made by the city and sustained by the trial court. The reason for this ruling was that the flooding was not claimed as an item of damages in either of the claims filed.
Upon this appeal, the first question is whether the filing of a claim with the city is a condition precedent to the maintenance of an action for damages caused by the flooding. Section 29 of article 4 of the charter of the city of Seattle requires, among other things, that claims for damages “must accurately locate and describe the defect that caused the injury, accurately describe the injury, . . . contain the items of damages claimed, and be sworn to by the claimant.” Under this charter provision, claims for damages, whether sounding in tort or contract, must be presented within the time and in the manner therein provided.' International Contract Co. v. Seattle, 69 Wash. 390, 125 Pac. 152; International Contract Co. v. Seattle, 74 Wash. 662, 134 Pac. 502. Where, however, the property taken or damaged is contemplated by the plan of the work and is a necessary incident to the making of the public improvement no claim is necessary, because, strictly speaking, the property owner’s action rests neither in tort nor contract. In other words, where the taking or damaging is an indispensable and integral part of the improvement, necessarily anticipated by the plan and intended in the performance of the work, no claim is necessary, because the property owner is only recovering the compensation which he would have received had the city, prior to making the improvement, brought an action in condemnation for the purpose of having the damages for the taking or damaging determined. Kincaid v. Seattle, 74 Wash. 617, 134 Pac. 504, 135 Pac. 820; Jorguson v. Seattle, 80 Wash. 126, 141 Pac. 334.
It is next claimed that, if the filing of a claim is necessary, under the claims filed, the testimony as to the flooding should have been admitted. In neither of these claims was there any mention made of an item of damages by reason of the overflow of the land caused by an inadequate drain under the fill. The charter provision requires that the claim shall specify the items of damages. In Casassa v. Seattle, 75 Wash. 367, 134 Pac. 1080, it was held that, under this charter provision, an action could not be maintained for an item of damage not covered by the claim. It follows that the ruling of the trial
Lastly, it is contended that the trial court erred in not entering judgment for the appellants for damages in a substantial amount, notwithstanding the verdict of the jury. The basis of this contention is that the appellants were entitled to damages to the lots abutting upon the cut which were dug into by the steam shovels during the progress of the work. Whether there was damage in this regard, and, if so, how much, under a proper instruction, was submitted to the jury. The evidence was conflicting. That offered in behalf of the appellants, if accepted by the jury, would sustain a verdict in a substantial amount. That offered by the respondent, if accepted by the jury, would result in a verdict in favor of the respondent. Upon this conflicting evidence, the question was one for the jury.
The judgment will be affirmed.
Ellis, C. J., Morris, Chadwick, and Webster, JJ., concur.