1907). M. L. FLETCHER et al., Respondents,
vs.
THE CITY OF SEATTLE, Appellant
No. 6085
SUPREME COURT OF WASHINGTON
43 Wash. 627, 88 P. 843
February 18, 1907, Decided
Original Opinion of September 11, 1906, Reported at 43 Wash.
627.
43 Wash. 627 at 631
MUNICIPAL CORPORATIONS -- STREETS -- ORIGINAL ESTABLISHMENT OF
GRADE -- DAMAGES TO ABUTTING OWNER. An abutting property owner
cannot claim that he has been damaged by the original
establishment of a grade, where the grade is a reasonable one and
the work has been properly done; since the dedicator or his
grantee must be held to have consented to the right of the city
to graduate and improve its streets (overruled).
MUNICIPAL CORPORATIONS -- STREETS -- ORIGINAL ESTABLISHMENT OF
GRADE -- DAMAGES TO ABUTTING OWNER. In view of Bal. Code, § 745,
providing that damages arising to abutting property from the
original grading of a street may be ascertained and assessed
against the property, the dedicator of an addition will not be
held to have consented to a reasonable original establishment of
a grade, but the city is liable to an abutting owner for damages
to his property caused thereby.
MUNICIPAL CORPORATIONS -- STREETS -- STATUTES --TITLE OF ACT. The
title of the act, Laws 1893, p. 189, relating to the right of
eminent domain is sufficient to cover sections of the act
relating to the opening of streets by cities and the payment of a
compensation by reason of the damaging of property by such
opening and establishment of grades.
DUNBAR, J. HADLEY, C.J., RUDKIN, MOUNT, FULLERTON and ROOT, JJ.,
concur. DUNBAR
{*631} This case involves a claim for damages caused ON
REHEARING
This case involves a claim for damages caused by the original
establishment of a grade in a street in the city of Seattle. The
trial court held that the city was liable to an abutting owner
for damages caused by the original establishment of the grade of
the street, and upon appeal from a judgment in his favor to this
court the judgment was reversed, and it was here decided that a
city was not liable to an abutting owner for damages caused by
the original establishment of the grade of the street dedicated
by him to it where the grade was a reasonable one and the work
was properly done; that in the absence of a statutory right to
such damages, they could not be collected for the reason that the
value of the lots adjoining such street necessarily depends upon
the maintenance of the streets upon which they abut, and that
this element of value must have been taken into consideration by
the dedicator, and that he ought not to be heard to demand
damages for the establishment of a reasonable grade or the
maintenance of a reasonable road which must be established or
maintained to make his property available as town or city
property, the character which he sought to impress upon it when
he filed his plat and dedicated the streets, and the judgment of
the lower court was therefore reversed. Ante, p. 627, 86 P. 1046.
On petition for rehearing, however, a statute was cited which had
not been called to the attention of the court, nor considered by
the court in the disposition of the cause, and upon considering
such statute a rehearing of the case was ordered. Such rehearing
has been had and the case is again here for determination. The
statute which it was claimed by the respondent confers the right
to damages in such case is § 5096 of Pierce's Code (Bal. Code, §
745), being section 47 of chapter 84 of the Laws of 1893, page
189. The section is as follows:
{*632} "Sec. 47. If any street, avenue or alley, or the right to
use and control the same for purposes of public travel, shall
belong to any city, and such city shall establish a grade
therefor, which grade requires any cut or fill, damaging abutting
property, the damages to arise from the making of such grade may
be ascertained in the manner provided in this act, but such city
may provide that the compensation to be made for such damage,
together with the accruing costs, shall be added to the cost of
the labor and material necessary for the grading thereof, and
shall be paid by assessment upon the property within the local
assessment district defined by law or the charter or ordinances
of such city in the same manner and to the same extent as other
expenses of such improvement are assessed and collected. In such
case it shall not be necessary to procure the appointment of
commissioners or take the other proceedings herein provided for
making such assessment, but all the proceedings for the
assessment and collection of such damages and costs, shall, if so
ordained by such city, be governed by the charter provisions, law
or ordinances in force in such city for the assessment and
collection of the cost of such improvements upon property locally
benefited thereby: Provided, however, That this section shall
apply only to the original grading of such street, avenue or
alley."
It is contended by the learned counsel for the city that the
right is not conferred by this section, that the statute should
be strictly construed, and that it does not contemplate a cause
of action for consequential damages; that it merely provides that
where a street is graded in such a manner as to damage abutting
property, the city may provide that the compensation to be made
for such damages should be assessed to the cost of the grading,
and assessed against the abutting property in the manner provided
by the charter provisions in force in said city for the
assessment and collection of cost of such improvement on the
property benefited thereby, and that if a cause of action had
been given for such class of damages the grant would have been
express and explicit; that the object of the statute is to enable
the city to include damages for actual trespass upon private
property in the {*633} construction of the improvement, and that
the damage referred to should be construed to be such damage as
the property owner has the right of action for under other
statutes or constitutional provisions, or by force of the common
law. It does not seem to us that this position is tenable. We
think the word "damages" used in the section has the same
significance and meaning that it has in other sections of the
same act, and that it was used in its broad sense and includes
consequential damages. We see no reason why this provision of the
law should be segregated from the other provisions, and a
different construction placed upon it, or why the provisions of
the act in relation to the assessment of the damages should not
apply to it as it does to the other sections, and if it does the
right of compensation is equally granted.
It was said that the title of the act shows that it is
legislation concerning the exercise of the right of eminent
domain, but we think the title is sufficient to cover the section
objected to equally as well as the other sections in the act, and
is was evidently the intention of the legislature to pass an act
covering the whole subject of opening streets, and of providing
methods of making compensation for damages where damages
followed. The title not only provides for the exercise of the
right of eminent domain, but, also, the taking and damaging of
land and property for public purposes, and section 1 of the act
empowers the city to condemn and also empowers it to damage any
land or other property for the purpose of opening streets.
Section 2 says, when the corporation authorities of any such city
shall desire to condemn land or other property or damage the same
for any purpose authorized by this act such city shall provide,
etc. In this case the city had the power to damage the
respondents' land, and it was found that it did damage it and it
damaged it in a way that it was authorized by § 47 of this act;
namely, by establishing a grade on the street upon which their
property abutted. And this idea is manifested throughout the act.
That the section does not contemplate such damages as are {*634}
caused by an encroachment or actual trespass upon the lands of
the owner, as is suggested by the appellant, is manifest from the
language of the section itself which evidently contemplates that
the work will be upon the street and not upon the abutting
property.
We are unable to find any more ambiguity in this section than in
any other provision of the act, and under its provisions the
plaintiffs are entitled to such damages as they can show they
have suffered. The question of public policy and expense to the
city are questions which are purely legislative. The other minor
questions involved we think were properly determined by the trial
court. And in view of the construction which we are constrained
to give the statute discussed, we are forced to the conclusion
that the former judgment of this court was wrong, and the
judgment of the lower court will therefore be affirmed.
DISPOSITION
Reversed.
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