Plaintiff asserts that failure to proceed in tort does not necessarily result in denial of liability for a substantial invasion of private property. While this assertion is valid as an abstract proposition ( see Kuhr v. Seattle, 15 Wn.2d 501, 131 P.2d 168 (1942)), plaintiff must still establish the elements of another theory, e.g., nuisance or trespass. This plaintiff does not purport to do in this action.
[3] It was defendant's duty to protect plaintiff's property from injury occasioned by the change of grade. ( Kuhr v. City of Seattle, 15 Wn.2d 501 [ 131 P.2d 168]; Sime v. Jensen, 213 Minn. 476 [ 7 N.W.2d 325]; 1 Cal.Jur.2d, p. 731.) [4] Plaintiff was entitled to an injunction against the continued and threatened wrongful use of his property unless the harmful results thereof were of such a trivial nature as to come within the maxim de minimis (14 Cal.Jur., p. 221, 224; 24 Cal.Jur., p. 700), or, in the alternative, compensation in damages (see Spaulding v. Cameron, 38 Cal.2d 265 [ 239 P.2d 625]).
Municipalities also have a duty to use reasonable care in building and maintaining roadways so that fill dirt does not slide down and damage adjacent property. See Peterson v. King County, 41 Wn.2d 907, 912, 252 P.2d 797 (1953); Kuhr v. City of Seattle, 15 Wn.2d 501, 503, 131 P.2d 168 (1942). In the unpublished portion of its opinion, the Court of Appeals declined to extend a municipality's duty to maintain city streets to adjoining landowners. It noted that the Peterson case, cited by DiBlasi, includes language which imposes a duty on a "`county to use every reasonable means to protect adjoining landowners'" from damage which may result from the building of a road.
[2] It is true that governmental immunity does not extend to the creation or maintenance of a nuisance, even though in creating or maintaining such nuisance, the city is exercising a governmental function. Taylor v. Spokane, 91 Wn. 629, 158 P. 478; Bales v. Tacoma, 172 Wn. 494, 20 P.2d 860; Southworth v. Seattle, 145 Wn. 138, 259 P. 26; Ferry v. Seattle, 116 Wn. 648, 200 P. 336, 203 P. 40; Kuhr v. Seattle, 15 Wn.2d 501, 131 P.2d 168. In all of these cases, the nuisance complained of was created in whole or in part by the city itself.
As we view the evidence, the creating of the precipice in 1942 was not the direct, proximate cause of the slide in 1951. The trial court felt compelled to give instruction No. 2 because of our holding in Kuhr v. Seattle, 15 Wn.2d 501, 131 P.2d 168. In that case, the plaintiffs owned property on the corner of Fairview avenue and Shelby street in Seattle.
Primarily, only questions of fact are here involved. North 102nd street, being outside of the city limits of Seattle, was entirely under the jurisdiction and control of King county. Therefore our decision in Kuhr v.Seattle, 15 Wn.2d 501, 131 P.2d 168 (cited by respondent), is not applicable. [1] Respondent calls our attention to the well-established rule that findings of the trial court made upon conflicting evidence will not be disturbed by this court unless we can say that such findings are clearly not supported by the weight of the evidence, citing Michigan Millers Mutual Fire Ins. Co. v. Oregon-Washington R. N. Co., 32 Wn.2d 256, 201 P.2d 207.
¶ 20 Respecting the paramount right to exclude others, Washington courts compensate the loss of exclusive possession under a variety of legal theories. See, e.g., Bradley v. Am. Smelting & Ref. Co., 104 Wash.2d 677, 692–93, 709 P.2d 782 (1985) (trespass claim for airborne pollution that “invaded the plaintiff's interest in the exclusive possession of his property”); Highline Sch. Dist. No. 401 v. Port of Seattle, 87 Wash.2d 6, 11, 548 P.2d 1085 (1976) (inverse condemnation based on noise pollution); Kuhr v. City of Seattle, 15 Wash.2d 501, 504, 131 P.2d 168 (1942) (where encroachment interferes with owner's right to exclusive use and enjoyment, “we think it of little moment what the theory of the injured party's cause of action may be”). Moreover, courts assess damages for even minimal interference with an owner's right of exclusive use and possession.
Harbeson, 98 Wn.2d at 476; Whitchurch v. McBride, 63 Wn. App. 272, 275, 818 P.2d 622 (1991), review denied, 118 Wn.2d 1029 (1992). See also Kuhr v. City of Seattle, 15 Wn.2d 501, 503, 131 P.2d 168 (1942); Boyer v. City of Tacoma, 156 Wash. 280, 284, 286 P. 659 (1930); Johnson v. Sultan Ry. Timber Co., 145 Wash. 106, 109, 258 P. 1033 (1927). Compare 6 Washington Pattern Jury Instructions: Civil 15.01, at 181 and 15.01.01, at 185 (2005) (cause is `proximate' if, in its absence, the injury or event would not have happened).