
    [No. 10717.
    Department One.
    April 18, 1913.]
    John G. F. Hieber, Respondent, v. The City of Spokane, Appellant.
      
    
    Municipal Corporations — Improvements—Use of Streets — Construction of Bridge — Damage to Abutters. In occupying a street for necessary cables, tramways, false work and engines used in the construction of a bridge, the city is not liable to the owner of an abutting lot for damages by reason of vibration, cinders, soot, and steam which were necessarily incident to the work, where there, was no negligence on the part of the city and no physical invasion of the property beyond the street line or a physical projection of the instrumentalities over the adjoining property.
    Same — Damages to Abutters — Offset of Benefits. Any taking or damaging of abutting property by a physical invasion beyond the street line, or a physical projection of instrumentalities over the property, in the work of constructing a bridge, is subject to an offset for benefits under Const., art. 1, § 16.
    
      Municipal Corporations — Claims—Continuing Injuries to Property — Anticipation op Damages. A claim against a city for continuing damages to abutting property by reason of tbe city’s occupation of a street during tbe construction of a bridge may anticipate tbe damages to occur in tbe future, where tbe trespass was certain to continue.
    Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered April 15, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages to property by reason of obstructions in a street.
    Reversed.
    
      H. M. Stephens, Wm. E. Richardson, and Bruce Blake, for appellant.
    
      E. O. Connor, for respondent.
    
      
      Reported in 131 Pac. 478.
    
   Chadwick, J.

This case grows out of the same state of facts as the case of Stern v. Spokane, ante p. 118, 131 Pac. 476. In this case, however, damages are not claimed because of the occupation- of the street, but “only for physical injuries to the building, the reasonable cost of repairing the same, and loss of rental value, only in the decrease in the fair rental values caused by the casting of smoke, cinders or grease or other substances on plaintiff’s property.” Appellant further says:

“This is a case for damages to the respondent’s building caused by the appellant in carrying on the work of constructing the bridge so negligently, carelessly and recklessly, and without- due care operating the engine, machinery, cables, buckets, etc., whereby soot, smoke, grease, cinders and other substances were thrown in and upon the building. The paint, paper, plastering, etc., of the building were destroyed and tenants driven from the building. It was an invasion of property rights for which the city must respond in actual damages.”

It is the contention of the city, as it was in the Stern case, that it is not liable for such damages as are necessarily incident to the work, and can only be held to answer for such damages as may result from its negligence, and that the case was not submitted to the jury upon this theory of the law. The city undertook, by an appropriate motion, to have the issue defined more clearly. Its motion was overruled, and while the ruling was probably technically correct, it might well have been allowed in the interest of clarity. The court in its instructions properly excluded damages for occupying the street, but evidently proceeded upon the theory that the city was liable in any event for any physical injury to the abutting property. The jury were told:

“(4) This right in the city to occupy Monroe street to place machinery and to do work upon is limited to the street and does not extend to adj acent private property, so that if in the progress of the work, the city caused any substance to be thrown or cast upon the property of plaintiff, injuring it, the city would be liable to the plaintiff for any damage done thereby. Hence if you find by the preponderance of the evidence that in the progress of the work the city caused smoke or cinders or grease, or water, or other substances to be thrown or cast upon plaintiff’s property and you further find that plaintiff’s property was thereby damaged, then the city would be liable for the damage so done.
“(5) Plaintiff also claims damage by reason of alleged vibration of his building causing damage and lessening its rental value. Before the plaintiff will be entitled to compensation on this account, he must show by the preponderance of the evidence that the work done by the city in the construction of the bridge caused plaintiff’s building to vibrate, and injured it physically, or decreased its rental value, and if you find, then the defendant would be liable for such damage so done, as shown by the preponderance of the evidence.”

The court refused to give all instructions predicated upon the theory of negligence, and as will be seen, directed the minds of the jury away from it with great cai'e. The effect of the instructions was that, although the city might occupy the street, it could not use it or the appliances necessary to carry on its work without being liable in any event. The court held' the city to such damages as might be incident to a lawful performance of duty, whereas the law is that it is liable only for its negligence. We may assume that the erection of a structure of the magnitude of the Monroe street bridge would call for cables, tramways, falsework and engines (they are all referred to in the testimony). While such work is in progress, there is a certain annoyance and deprivation of property right. But if the work is done with due care, there can be no recovery, for cables and trams cannot be operated without vibration, and engines cannot be operated without throwing cinders, soot and steam. Whether these things could have been avoided by the exercise of düe care depends upon the facts and circumstances of the particular case. It is the duty of a city to maintain streets and bridges, and such inconveniences as necessarily follow the performance of that duty are a burden the property owner must bear. As in the Stern case, respondents rely upon Smith v. St. Paul, Minn. & M. R. Co., 39 Wash. 355, 81 Pac. 840, 109 Am. St. 889, 70 L. R. A. 1018, and kindred cases. Those cases, as explained in Clute v. North Yakima & Val. R. Co., 62 Wash. 531, 114 Pac. 513, and DeKay v. North Yakima & Valley R. Co., 71 Wash. 648, 129 Pac. 574, do not deny, but rather affirm, the right of the city. It is only when there has been an actual taking or a damaging that is not consequent upon the exercise of reasonable care in the performance of the work, that the city will be held liable. Of course, the city would be liable for any damage resulting from a physical invasion of the property beyond the street line, or a physical projection of the instrumentalities used to carry on the work over the adjoining property. If it should appear that an owner will suffer such damages, he may restrain the prosecution of the work, or he may permit it to go on, claiming his damages in an action at law. Lund v. Idaho & Washington N. R., 50 Wash. 574, 97 Pac. 665, 126 Am. St. 916; Keil v. Grays Harbor & Puget Sound R. Co., 71 Wash. 163, 127 Pac. 1113. The rule of damages in either event is the same, and a taking or damaging by a municipality is subj ect to an offset for benefits, under § 16, art. 1, of the constitution. Lincoln County v. Brock, 37 Wash. 14, 79 Pac. 477.

Plaintiff filed a claim for damages on June 17, 1911. The bridge was not finished and the work progressed for some months thereafter. The city contends that no claim was filed for the damages, if any, which must have accrued after June 17. The claim, although introduced and marked as an exhibit, is not to be found in the record. Assuming that it recites a claim for continuing damages, as asserted in respondent’s brief, wé think it sufficiently complies with the requirements of the ordinance. It is probably true that respondent could not have maintained a suit for more than the amount stated in the claim. Dunkin v. Hoquiam, 56 Wash. 47, 105 Pac. 149. But this rule should not preclude him from anticipating his damages, where the trespass was certain to continue until the work was completed. The notice must have met the requirement of the statute. Rem. & Bal. Code, § 7995; Spokane Charter, art. 12, § 115.

“This court, in common with all other courts, has uniformly held that the obj ect of these ordinances, and the theory upon which they were sustained, was notice so that the city might be able to prepare for the trial of the cause if it was deemed expedient not to settle the claim.” Hase v. Seattle, 51 Wash. 174, 98 Pac. 370, 20 L. R. A. (N. S.) 938.

While not within the facts, this case falls within the logic of Falldin v. Seattle, 57 Wash. 307, 106 Pac. 914.

Reversed and remanded for a new trial.

Crow, C. J., Gose, Mount, and Parker, JJ., concur.  