As I read the evidence in this case, the damage to appellant's property, for which this action was brought, did not occur until July 12, 1933, which was six or seven months after the water main broke. At the time that the actual flooding took place, the damage was considered superficial and trivial. In fact, immediately after the breaking of the water main, the city repaired what then appeared to be the actual damage. It appears, however, that the water had washed away some of the dirt underneath the house, but the effect of this did not become apparent, and was not foreseen, until the land actually subsided, carrying the house with it. As the result of the subsidence, appellant has been actually damaged, as the court found, in the sum of five hundred *Page 44 ninety dollars. The claim was filed within thirty days after the real damage occurred.
Had appellant filed a claim for the amount just mentioned within thirty days after the breaking of the water main, manifestly he could not have recovered, because his damages then were conjectural and not subject to proof. In other words, the damage had not yet occurred. The cause of action, therefore, had not accrued.
"`The accrual of the cause of action' means the right to institute and maintain a suit; and whenever one person may sue another a cause of action has accrued and the statute begins to run, but not until that time. So, whether at law or in equity, the cause of action arises when and only when the aggrieved party has the right to apply to the proper tribunal for relief. The statute does not attach to a claim for which there is no right of action, and does not run against a right for which there is no corresponding remedy or for which judgment cannot be obtained. The true test therefore to determine when a cause of action has accrued is to ascertain the time when plaintiff could first have maintained his action to a successful result. The fact that he might previously have brought a premature or groundless action is immaterial. The statute of limitation does not require a person to institute proceedings to enforce a right within a time limited, when such proceedings will not conclusively determine such right as to each party." 37 C.J. 810, 811.
This court has held that an action to recover damages for an injury cannot be maintained until the injury actually occurs.Smith v. Seattle, 18 Wn. 484, 51 P. 1057, 63 Am. St. 910. This is true, even though it may be apparent at the time that injury will inevitably result. Sterrett v. Northport Mining Smelting Co., 30 Wn. 164, 176, 70 P. 266.
When the results of a wrongful act cannot be clearly foreseen, the statute is operative only from the time *Page 45 that sustainable injury occurs, or when damages are discoverable by due diligence. Beck v. American Rio Grande Land Irr. Co., 39 S.W.2d (Tex.Civ.App.) 640.
In 1 American Jurisprudence, p. 451, § 60, the rule, in its general application and with its exceptions, is stated as follows:
"In determining whether an action has been prematurely commenced or whether it has been so tardily commenced as to be barred by the Statute of Limitations, it becomes necessary to determine when the cause of action accrued. This is determined by ascertainment of the time when the plaintiff could first have maintained his action to enforce his cause of action. Generally, it may be said that a cause of action accrues at the moment of a wrong, default, or delict by the defendant and the injury of the plaintiff, although the actual damage resulting therefrom may not be discovered until some time afterwards, if the injury, however slight, is complete at the time of the act. Where the invasion of a right (as by the erection of a permanent structure on the land of another), if submitted to on the one hand and persisted in on the other a sufficient length of time, may result in the extinction of the right, a remedy may be sought before actual damage has occurred. But if an act is not legally injuriousuntil certain consequences occur, it is not the mere doing of theact that gives rise to a cause of action, but the subsequentoccurrence of damage or loss as the consequence of the act, andtherefore, in such case, no cause of action accrues until theloss or damage occurs." (Italics mine.)
This case falls squarely within the exception stated in the concluding part of the above quotation. The act of the city was not legally injurious until the consequences appeared, and appellant's cause of action did not accrue until the loss or damage occurred.
I think that the judgment should be reversed.
MILLARD, C.J., concurs with STEINERT, J. *Page 46