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plaintiff's said house, or any part thereof, or to any improvements on said lot made by plaintiff;

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"That solely by reason of said grading, excavation, and removing of soil and earth . . . . and failure to provide lateral support in place of that removed . . . the soil and earth of the west (40) forty feet of plaintiff's lot during the months of October, November, December, 1896, and January, 1897, cracked, broke away, and subsided to a depth of more than twenty (20) feet from its former and natural level and slid and moved westerly onto adjoining land and into Yesler Way; that by reason thereof plaintiff has suffered and sustained damages to the amount of three thousand ($3,000) dollars."

The complaint further shows that before commencing the action plaintiff presented a claim in writing to the city council, and that such claim was rejected. To this complaint the city demurred upon two grounds, viz: 1. That the complaint does not state facts sufficient to constitute a cause of action; 2. That the action was not commenced within the time limited by law. The superior court sustained the demurrer, and this appeal is from that order and the judgment of dismissal which followed it.

In Parke v. Seattle, 5 Wash. 1, 34 Am. St. Rep. 839, we held that where a municipal corporation in grading a street so negligently excavates the earth that the abutting land is deprived of lateral support to such a degree as to cause damage, the city is liable for the damages thereby occasioned. The plaintiff in that action, Parke, was the owner of the lot situated between the lot of the appellant in the present action and Yesler Way.

As to the first ground of demurrer it seems to be conceded by respondent that the complaint states a cause of action unless the bar of the statute has run. Therefore, the real question for determination is, Was the action seasonably commenced? It is the contention of the respondent 488 "that any cause of action which plaintiff might have had which is based upon the negligence of defendant in grading Yesler Way in 1888 is barred by the statute of limitations."

We cannot agree with this contention. It appears from the complaint that the injury to plaintiff's property did not occur until October, 1896. The statute of limitations does not begin to run until a right of action exists, and the right of action did not exist until the injury occurred. The language of the statute is: "An action for relief not hereinbefore provided for shall be commenced within two years after the cause of action shall have accrued": 2 Hill's Code, sec. 120; Ballinger's Code, sec. 4805.

Wilcox v. Plummer, 4 Pet. 172, has no application to the present case, and the other authority cited by respondent, viz., Wood on Limitations of Actions, section 179, does not sustain respondent's position. It is there said that: "In actions for injuries resulting from the negligence or unskillfulness of another, the statute attaches and begins to run from the time when the injury was first inflicted, and not from the time when the full extent of the damages sustained has been ascertained." As already observed, no injury to plaintiff's property was sustained until October, 1896.

The case of Backhouse v. Bonomi, 1 Best & S. 970, is squarely in point. In that case A was the owner of a house. B, the owner of a mine under it, in working the mine left insufficient support to the house. The house was not damaged until some time after the working had ceased. It was held that A could bring an action at any time within six years after the mischief happened, and was not bound to bring it within six years after the work was done which originally led to the mischief. To 489 the same effect are Mitchell v. Darley Main Colliery Co., L. R. 14 Q. B. Div. 125; affirmed, L. R. 11 App. Cas. 127; Stroyan v. Knowles, 6 Hurl. & N. 454; Bank of Hartford County v. Waterman, 26 Conn. 324.

It follows that the demurrer should have been overruled, and the order and judgment of the superior court must be reversed. Dunbar, Anders, and Reavis, JJ., concur.

LIMITATIONS OF ACTIONS-REAL PROPERTY-REMOVAL OF LATERAL SUPPORT.-Since the right of a party whose land is interfered with by the subsidence which follows an excavation upon adjoining property is merely a right to the ordinary enjoyment of land, no cause of action will accrue until the damage actually occurs: Monographic note to Larson v. Metropolitan Street Ry. Co., 33 Am. St. Rep. 472, 473.

AM. ST. KEP., VOL. LXIII-58

INDEX TO THE NOTES.

ADVERSE POSSESSION by a mortgagor or mortgagee, 135. uniting successive possessions to complete the time necessary for prescriptive title, 821.

AGENTS, implied powers of, 635.

ATTACHMENTS, return upon writs of must disclose all facts essential to, 427.

BANKING, forged checks, negligence of depositor in not discovering forgeries, 410.

forged checks, payment of is at the peril of the payer, 410. insolvency, crime of receiving deposits after, 441.

trust funds, liability for permitting misappropriation of, 524. BILLS OF LADING, transfer of and its effect, 378.

CARRIERS, connecting, contracts which limit liability of, 861. connecting, refusal of to accept goods from initial carrier, duty of the latter to the shipper, 861.

of passengers, baggage, liability for goods accepted as, 705. overcharges, actions to recover, 453.

CARRIERS OF LIVESTOCK, bedding, liability for improper or insufficient, 560.

caretakers, duty of owners to furnish, 562, 563.

cars, distribution of among different stations, duties respecting,

554.

cars, doors of, duties respecting, 553, 554.

cars, duty of to furnish safe and suitable, 553.

cars, duty of to supply on demand, 554.

connecting lines, duties of, 564, 565.

contracts, special, limiting liability of, 565, 566.

custom requiring owners to accompany and care for cannot be sustained, 563.

delay in transportation of, when not excusable, 550, 551.

delay in unloading, liability for, 559.

delays in transporting, liability for, 564.

delays in transporting, which are regarded as unreasonable, 564.

diligence required of in completing transportation, 563.

duty of in feeding and watering stock, 554.

duty of to exercise care for and supervision over during transportation, 561.

CARRIERS OF LIVESTOCK, duty of to prevent escape of, 560. duty of to prevent their inflicting injury on one another, 561. duty of to provide suitable facilities for transportation of, 551, 552.

duty of to provide yards and stockpens for receiving and delivering, 551, 552.

duty of to provide water for, 555.

duty of to transport for all persons, 551.

duty of to transport for reasonable compensation, 551. duty of to transport within a reasonable time, 550, 551.

duties of, agreement of shipper as exonerating from discharge of, 558, 559.

duties of as to loading and unloading, bedding, and ventilation of cars, 558.

duties of on receiving overloaded cars, 559.

duties of under the Revised Statutes of the United States, 566, 567.

duties of, when relieved from by agreement with the owners of stock, 562.

escape of, liability for, 560.

facilities to be afforded shipper to feed and water, 555.

feeding and watering, duties respecting, 554, 555.

feeding and watering, excuses for not permitting, 555. keeping confined in cars for an excessive time, 556, 557.

liability of as common carriers, when attaches, 551. liability of does not extend to injuries arising without their fault from the nature and propensity of the animals, 550. liability of for the due care of stock, 563.

liability of from which may be exempted by contracts, 666. loading and unloading, facilities which must provide for, 558. must receive and transport in the order in which they are re

ceived for shipment, 552.

overloading, liability for, 559, 560.

owner of stock, when assumes responsibility of caring for, 562. resting, duty to stop cars to permit, 561, 562.

statutes requiring them to provide for feeding, watering, and resting, 561.

stockyards and pens, duty of to keep in repair, 560.

stockyards and pens, duty of to provide, 552.

vessels, liability and duties of carriers of, 565.

water for, duty to provide and give information respecting, 555, 556.

whether liable as common carriers, 549.

yards and pens, cannot make extra charge for, 552.

CAVEAT EMPTOR, trustees' sales, rule of is applicable to, 468. CHARITABLE USES AND TRUSTS are recognized by the common law, 254.

beneficiaries of cannot be personally designated, 249.

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