State ex rel. Sylvester v. Sup'r Ct., 60 Wash. 279, 111 Pac.

      STATE EX REL. SYLVESTER v. SUP'R CT.           279
 Oct. 1910          Opinion Per CROW, J.

      [No. 8796. Department Two. October 10, 1910.]
THE STATE OF WASHINGTON, on the Relation of NORBERT R.
     SYLVESTER et al., Plaintiff, v. THE SUPERIOR COURT
           FOR BENTON COUNTY, Respondent. «1»

 280    STATE EX REL. SYLVESTER v. SUP'R CT.
                Opinion Per CROW, J.               60 Wash.

The defendants applied to this court for a writ of certiorari,
which has been issued, and the order is now before us for
review.

The evidence shows that, on January 3, 1907, the town of
Kennewick, by Ordinance No. 45, granted the respondent
railroad company permission to lay its tracks for its main line
over the north thirty feet of Front street, upon which street
the relators' lots abut; that sections 11 and 14 of the
ordinance read as follows:

"Section 11. The grantee, its successors and assigns, is
hereby required to commence the construction of said
railroad within 150 days from the date of the publication of this
ordinance in the official newspaper of the town of Kennewick,
and shall carry on the operation of such construction to as
speedy completion as the nature of the work shall permit and
complete said road and run and operate trains upon same
through the town of Kennewick, between North Yakima and
the Columbia river, in the state of Washington, within
fifteen months, and bridge the Columbia river east of the town
of Kennewick within 30 months thereafter."

"Section 14. The grantee shall file a written acceptance of
this ordinance with the town clerk of the town of Kennewick,
within thirty days after the publication of said ordinance in
the official newspaper of the town of Kennewick;"
that the ordinance was published on January 11, 1907; that
written acceptance was not filed by the respondent within
thirty days after its publication, but that an acceptance, not
shown to have been filed, was prepared by respondent on
February 19, 1907; that on August 2, 1909, the town council
of Kennewick, in regular session, adopted a resolution
declaring that the North Coast Railroad Company had
forfeited its right or franchise to occupy the street; that no
construction work was commenced on Front street by respondent
prior to February 26, 1910, on which date the respondent,
after dark on Saturday evening, entered upon the
street and commenced laying its tracks; that respondent was
stopped by injunction proceedings; that later, upon
suspension of the injunction, one track was completed, and that

          STATE EX REL. SYLVESTER v. SUP'R CT.           281
 Oct. 1910          Opinion Per CROW, J.

this proceeding was commenced on March 8, 1910, to condemn
such interests or property rights as the relators hold in
the strict upon which their lots abutted, and to compensate
them for such damages as they might sustain. Other
not material to be now mentioned were also shown, in regard
to another main line through Kennewick adopted by
respondent, and an alleged abandonment of the franchise above
mentioned.

Some contention is made by the relators to the effect that
the franchise ordinance was not passed in the manner
required by law, but we will not consider that question, our
view being that a forfeiture has been declared by the town
council.

"Before a railroad company can lawfully occupy a
it must have authority to do so from the legislature, or from
some municipal corporation having power to grant it. A
railroad cannot occupy a street under its general authority
to make a location, but such right must be expressly granted
or necessarily implied" 1 Lewis, Eminent Domain (3d ed.),
SS 169.

If respondent has failed to comply with the conditions of
the ordinance within the time therein limited, and if a
forfeiture has been legally declared by the council, it is
that respondent has no franchise in the street. Respondent
contends that the franchise has not been legally forfeited.
It is true that no ordinance repealing the former ordinance,
or purporting to forfeit the franchise, has been passed,
a resolution. declaring a forfeiture was adopted by the
council, and thereafter notice of such forfeiture was promptly
transmitted to the respondent. Our attention has not been
directed to any statute or charter provision requiring
a forfeiture be declared by ordinance. When no particular
mode of action has been prescribed by the legislature, or a
city charter, any authorized action of a municipality may be
taken by resolution, as well as by ordinance. A resolution
ordinarily has the same effect: as an ordinance, except in matters

 282    STATE EX REL. SYLVESTER v. SUP'R CT.
                Opinion Per CROW, J.               60 Wash.

of legislation. Ehrhardt v. Seattle, 33 Wash. 664, 74 Pac. 827;
State ex rel. Jones v. Superior Court, 44 Wash. 476, 87 Pac. 521;
Steenerson v. Fontaine, 106 Minn. 225, 119 N. W. 400; City of
Crawfordsville v. Braden, 1150 Ind. 149, 28 N. E. 849,
30 Am. St. 214, 14 L. R. A. 268; McCarock v. Omaha, 40 Neb. 64,
58 N. W. 543; Atchison Board of Education v. DeKay, 148 U.S. 591.
The respondent did not comply with the requirements of the ordinance
within the time limited. The council, by resolution,
declared a forfeiture, and gave notice of its action. We
think the respondent thereafter had no franchise which
authorized it to construct its line of road upon Front street.

The respondent, however, contends that, even though there
has been a forfeiture, the relators cannot urge the same, nor
can they urge the fact that respondent now has no franchise,
as a defense to this action. It further insists that its right
in an eminent domain proceeding to ascertain and pay
damages, which owners of abutting property will sustain by
reason of its occupation and use of the street exists even though
it has not yet obtained a franchise. It is true that in State
ex rel. Merriam v. Superior Court, 55 Wash. 64, 104 Pac. 148,
cited by respondent, this court, citing previous
decisions, said:

"It is argued that, because the city has not granted a right
of way to the condemning company across streets adjoining
the property in question, therefore this property may not be
condemned. This question was settled adversely to the same
contention in State ex rel. Harlan v. Centralia-Chehalis Elec.
R. & P. Co., 42 Wash. 632, 85 Pac. 344, 7 L. R.. A. (N. S.)
198, and State ex rel. Hulme v. Grays Harbor & Puget Sound
R. Co., 54 Wash. 530, 103 Pac. 809."

In the Merriam case, and the other cases therein cited, each
public service corporation was seeking a condemnation,
appropriation, and physical taking of the real estate itself. In
this action the respondent seeks by condemnation to obtain the
right to damage property of the relators by occupying the
street upon which it abuts, and to do so after a franchise
previously granted has been actually forfeited by the town

      STATE EX REL. SYLVESTER v. SUP'R CT.           283
 Oct. 1910          Opinion Per CROW, J.

council. Respondent entered upon the street wrongfully and
without lawful authority. In so doing it created, and is now
maintaining, a public nuisance.

In Birmingham R. L. & P. Co. v. Moran, 151 Ala. 187, 44
South. 152, 125 Am. St. 21, the court said:

"It is settled law that a railroad, constructed and operated
on the streets and alleys of a city without authority of law,
constitutes a public nuisance, as does also the erection of a
fence and gate across any such street or alley. It is also
settled law that a public nuisance may be abated or enjoined
by an individual property owner who suffers injury thereby
of a special nature, separate and distinct from that which the
public generally sustains: 27 Am. & Eng. Ency. of Law (2d
ed.), 176; Elliott on Roads and Streets, p. 500; Louisville
& N. R. R. v. Mobile J. & K. C. R. R., 124 Ala. 162, 166, 26
South. 895; Weiss v. Taylor, 144 Ala. 440, 466, 39 South.
519."

Mr. Elliott, in his work on Roads and Streets (2d ed.), at
SS 877, says:

"It is substantially agreed by the courts that the abutter
has a private interest in the road or street as such, and if he
has this right it is property which cannot be taken from him
without compensation. The right to a road or street which
the land-owner possesses as one of the public is different from
that which vests in him as an adjoining proprietor, and it is
also distinct and different from his rights as owner of the
servient estate. The right which an abutter enjoys as one
of the public and in common with other citizens is not
property in such a sense as to entitle him to compensation on the
discontinuance of the road or street; hut with respect to the
right which he has in the highway as a means of enjoying the
free and convenient use of his abutting property it is
radically different, for this right is a special one."

In Brazell v. Seattle, 55 Wash. 180, 104 Pac. 155, this
court said:

"The right of the owner of a city lot to use the adjoining
street to its full width is well established, unquestioned, and
one of which he cannot be deprived without just compensation.
It is as much a property right as the lot itself. . . .

 284    STATE EX REL. SYLVESTER v. SUP'R CT.
                Opinion Per CROW, J.               60 Wash.

Abutting owners who are deprived of the right to enjoy the
street to its full width immediately in front of their property,
being specially injured, are entitled to equitable relief by
injunction. The ordinary and well-established rule that
owners who are only remotely affected or who sustain no
special injury different from that sustained by others in the
vicinity, are not entitled to equitable relief, does not apply to
them, nor does it deprive them of their right to seek
protection in their individual capacity."

The situation before us is that the respondent has created
a public nuisance in the street immediately in front of
relators' property, which does them a special injury, and which
they would be entitled to abate by proper legal proceedings.
It has no franchise, but occupies the street wrongfully. By
condemnation it is now seeking a judgment which it would
ultimately plead as an estoppel or defense in any action
instituted by relators to abate the public nuisance which it
has created. Rights of public service corporations, asserted
under eminent domain laws, should be strictly construed, and
we are not prepared to hold that such a corporation, by
invoking the power of eminent domain, may deprive a
property owner of his right to abate a public nuisance. The rule
upon which respondent relies, as announced in State ex rel.
Merriam v. Superior Court, and State ex rel. Hulme v. Grays
Harbor & Puget Sound R. Co., is predicated entirely upon
State ex rel. Harlan v. Centralia-Chehalis Elec. R. & P. Co.,
42 Wash. 632, 85 Pac. 344, 7 L. R. A. (N. S.) 198, upon
which respondent also relies. In the latter case, after
referring to and commenting upon the fact that the corporation
was diligently proceeding to obtain a franchise, this court,
at page 658, said:

"We think that, when it is made to appear that a promoter
of an enterprise of this kind is proceeding diligently with it,
and nothing is shown to have occurred that will prevent its
ultimate accomplishment, that the court ought not to deny the
right to acquire by condemnation an essential part merely
because there is a possibility that the enterprise cannot be
carried to completion."

      STATE EX REL. SYLVESTER v. SUP'R CT.           285
 Oct. 1910          Opinion Per CROW, J.

In this case occurrences have been shown which directly
tend to prevent the ultimate accomplishment of respondent's
design. The franchise heretofore granted has been forfeited
by affirmative action of the council, and in the absence of any
later municipal action, we must presume that no additional
franchise will in all probability be hereafter granted.

We are not inclined to extend the application of the rule
heretofore announced in the cases cited. When one franchise
has been forfeited there can be no hardship in requiring a
public service corporation to secure a new franchise over a
public street within the territory of a municipal corporation,
before it is permitted to take possession of such street and
condemn the interests of an abutting property owner. Such a
rule will prevent a resort to the arbitrary methods by which
the respondent has in this case obtained possession of Front
street, without any franchise or authority of law, and now
seeks to maintain the same. If by this attempted
condemnation respondent is permitted to estop the relators from
abating the public nuisance it has created and is now maintaining,
it will obtain judicial sanction for acts which in their
inception were arbitrary and unlawful. No such sanction should be
permitted, and we hold that, by reason of the situation here
'presented, the relators, as a defense herein, are entitled to
urge that the franchise heretofore granted has been forfeited
by the municipality, and that the respondent has, without
authority of law, entered upon the street and created a public
nuisance. Relators will then be in a position to enjoin the
public nuisance which the respondent has created by
arbitrarily and clandestinely entering upon the street after a
legal forfeiture of its franchise has been declared.

The judgment is reversed, and the cause remanded with
instructions to dismiss the petition.

RUDKIN, C. J., PARKER, DUNBAR, and MOUNT, JJ., concur.