[No. 7841. En Banc. October 5, 1909.]
THOMAS F. BRAZELL et al., Appellants, v. THE CITY OF
SEATTLE et al., Respondents. «1»
MUNICIPAL CORPORATIONS - STREETS - VACATION - HEARING -
CONTINUANCE. A city council having obtained jurisdiction, by
petition and notice, to vacate a street, jurisdiction is not
lost by postponing the hearing without entering a continuance
to a day certain or giving notice of the time.
SAME - POWER TO VACATE - PROCEDURE. City councils have no
power to vacate streets except as delegated by the legislature,
and the procedure therefor must be strictly followed.
SAME - REPLATS - POWER TO MODIFY - STATUTES - CONSTRUCTION.
Under Laws 1903, p. 139, authorizing street vacations and
replats,
«1» Reported in 104 Pac. 155.
BRAZELL v. SEATTLE. 181
Oct. 1909 Statement of Case.
upon the filing of a replat, "accompanied with a petition for the
change desired" by three-fourths of the owners, which the council
may approve or reject, and "assess damages or benefits, award the
same and make such order in the premises as justice and the public
welfare may require," the council has no power to modify the
proposed replat, but must approve or reject it in its entirety,
and an order approving part of the vacation petitioned for is
void.
SAME - REPLATS - POWER TO MODIFY - STATUTES. Laws 1903, p. 139,
requiring a proposed replat for street vacations to be filed
showing the changes petitioned for by three-fourths of the owners,
and giving the city council complete jurisdiction to inquire into
and determine the merits, assess damages or benefits, award the
same, and make orders required by justice and the public welfare,
the city council can only approve or reject the petition in its
entirety, and an order altering the proposed replat is void; the
orders required by justice, etc., referring to the necessary
assessments and awards, and not to modifications of the replat.
EMINENT DOMAIN - USE OF STREETS - RIGHT OF ABUTTERS - COMPENSATION.
An abutting owner cannot be deprived of his right to the
use of the full width of the street without just compensation.
SAME - RIGHTS OF ABUTTERS - INJUNCTION - SPECIAL INJURY. An
abutting owner deprived of his right to the use of the full width
of the street immediately in front of his lot, by a void order
vacating a portion of the street, is specially injured and may
maintain an action to enjoin the proceeding, but only so far as
it affects his property.
SAME - IMPROVEMENTS - ASSESSMENTS - REMEDY BY APPEAL - INJUNCTION.
Where a city council had jurisdiction to approve or reject
a petition for a replat, and to assess damages or benefits, the
remedy for illegal assessments upon a void order modifying the
replat is by the appeal provided by the city charter, and not by
injunction.
Appeal from a judgment of the superior court for King
county, Morris, J., entered December 23, 1908, upon
sustaining a demurrer to the complaint, dismissing an action
to enjoin the vacation and improvement of certain streets.
Reversed.
Wright & Kelleher and Wright & Kent, for appellants.
Scott Calhoun, Howard A. Hanson, and Oliver C.
McGilvra, for respondents.
182 BRAZELL v. SEATTLE.
Opinion Per CROW, J. 55 Wash.
CROW, J. - This action was commenced by Thomas F.
Brazell and Laura J. Brazell, his wife, against the city of
Seattle, D. Lambert, and A. C. Goerig, to annul, declare
invalid, and enjoin certain proceedings taken and threatened by
the city for the vacation of certain streets, the platting of
other streets in lieu thereof, and the grading and improving
of streets shown by the replat. The defendants interposed
general and special demurrers, which were sustained upon the
sole ground that the amended complaint did not state a cause
of action. The plaintiffs declined to plead further;
whereupon the action was dismissed, and they have appealed.
The question presented by this appeal is the sufficiency of
the amended complaint. Its allegations in substance are, that
the appellants and the respondent Lambert are respectively
owners of certain lots in the city of Seattle abutting upon
opposite sides of East Aloha street, which runs east and west
between Thirty-ninth avenue north and Fortieth avenue
north, appellants being located on the north side of East
Aloha street; that in August, 1903, the appellants, Lambert,
and many others owning lots in the same locality, conceived
a scheme for vacating numerous streets and alleys therein,
and dedicating officer in lieu thereof; that in furtherance
thereof they prepared a proposed replat of the locality,
including the portion of East Aloha street above mentioned,
together with a petition to the city council in favor of the
replat, which petition, at the instance of the respondent
Lalubert, and others associated with him, was signed by the
appellants and by three-fourths in number and area of the
owners of all the property lying within the district; that the
petition was filed with the city, and notice given that the same
would be heard on October 19, 1908; that the hearing was
adjourned until November 30, 1908, on which latter date no
adjournment was made; that on December 7, 1908, the
council again considered the petition and made a further
adjournment until February 19, 1904, on which latter date it,
without notice, adopted the report of its street committee in favor
BRAZELL v. SEATTLE. 183
Oct. 1909 Opinion Per CROW, J.
of granting the prayer of the petition; that no further action
was taken until May 14, 1906, when the city council, without
further notice, passed Ordinance No. 113,773, which purported
to carry out the terms of the petition and adopted the replat,
subject to the change that instead of vacating all of East
Aloha street between the property of the appellants and the
respondent Lambert as prayed, it vacated the south half
thereof which abutted upon the property of Lambert, thus
leaving the street open upon appellants' side, but closing it
upon the opposite side; that the change was fraudulently
procured by Lambert for the purpose of injuring appellants
and benefiting himself, as he would thereby acquire title to
the vacated portion of the street and still retain for his
convenience an open street on the opposite side adjoining the
appellants' lots; that the respondent Lambert, claiming title to
the vacated portion of East Aloha street, is about to take
possession thereof to appellants' special injury and damage;
that appellants had no knowledge of the proposed passage
of the ordinance adopting the replat, or the variance of its
terms from the replat proposed by the petition, until
November, 1906; that the ordinance, in addition to providing
for the vacation of certain streets, also provided for the
dedication of others in lieu thereof in the district and locality
affected by the street vacations; that in June, 1908, the city
council passed Ordinance No. 18,665, providing for the
improvement of the replatted system of streets, and providing
that the vacated portion of East Aloha street, adjacent to
the premises of respondent Lambert, be not graded; that
pursuant to such ordinance, the city and the respondent
Goerig, as contractor, are about to regrade and improve the
replatted streets, including the nonvacated portion of East
Aloha street; that the city is about to assess the real property
in the district in question, including appellants' property, to
pay the expenses of such improvements; that the pretended
Ordinance No. 113,773, and the contract of the city with
Goerig, are each null and void; that the assessments will be null
184 BRAZELL v. SEATTLE.
Opinion Per CROW, J. 55 Wash.
and void and a cloud upon appellants' title; that by reason
of such illegal vacation, replat, improvement, and threatened
assessment the appellants will suffer irreparable damages,
unless the same are enjoined; and that appellants' injury will
be special and peculiar to them. An injunction was demanded,
permanently restraining the respondents from proceeding
with the improvements under Ordinance 18,665, from
levying any assessments therefor, from treating East Aloha
street as vacated, and particularly restraining the respondent
Lambert from taking possession of any portion of East Aloha
street or claiming the same as his private property.
The appellant contends (1) that the city council, after a
petition for vacation is filed, cannot act upon the same
without notice and independently of the date fixed for the
hearing; (2) that it cannot vacate streets otherwise than in
accordance with the terms of the petition; and (3) that in any
event its action can be enjoined as fraudulent. The respondents
contend that three questions are involved in this appeal,
as follows: (1) Have appellants such an interest in the
replat proceedings that they can in a collateral attack secure
the annulment of the entire proceedings except as to the
portion of East Aloha street abutting upon their property? (2)
can appellants in this proceeding annul the vacation of any
portion of East Aloha street vacated under Ordinance
137,773? and (3) will an injunction lie to restrain the city
from improving the public portion of East Aloha street and
assessing the cost of such improvement against private
property specially benefited thereby.
The amended complaint affirmatively shows that proper
notice fixing a time for the hearing of the petition was given;
that several continuances were entered, but that on one
occasion no continuance was entered although the council
considered the petition at its next meeting without further service.
The council obtained jurisdiction of the petition by virtue of
the original notice, but the appellants now contend that,
having once failed to order any continuance, it lost jurisdiction
BRAZELL v. SEATTLE. 185
Oct. 1909 Opinion Per CROW, J.
so completely as to render its subsequent orders void. This
contention cannot be sustained. Mr. Elliott, in SS 293 of the
second edition of his work on Roads and Streets, discussing
this question, says:
"The sound doctrine upon this subject, as it seems to us,
is this: If the parties are once properly in court then the
failure to take action at the proper time will not oust the
jurisdiction, although it may constitute error reviewable by
certiorari or on appeal. This is in harmony with the general
principle that where jurisdiction has once attached it is
not lost by an error committed in the course of the
proceedings. The general rule unquestionably is that when
jurisdiction is acquired, the order or judgment is not void,
although it may be erroneous."
Power to vacate streets and highways is vested in the
legislature, and may be delegated by it to municipalities, which
has been done in this state. There is in a city council no
inherent power to vacate streets, and when such power has
been delegated to it by the legislature the procedure therefor
which the statute provides must be strictly followed. The
procedure here adopted was that prescribed by chapter 92,
Laws 1903, page 139, the first section of which provides for
the preparation of the proposed replat, together with a
specified petition for its adoption by the city council. Sections
2 and 3 provide for notice or process and its service. Section
4 reads as follows:
"That thereafter such board of county commissioners, or
city council shall have full and complete jurisdiction to inquire
into and determine the merits of the changes or relief prayed
for, assess damages or benefits, award the same and make
such order in the premises as justice and the public welfare
may require."
From a careful consideration of this statute, we conclude
that the petition and notice only conferred upon city councils
authority to approve and adopt or disapprove and reject
the identical plat presented. By SS 1 it is required that the
proposed replat he drafted upon a copy of the existing plat,
186 BRAZELL v. SEATTLE.
Opinion Per CROW, J. 55 Wash.
which must be "accompanied with a petition for the change
desired;" that is, for the change indicated on the replat and
desired by the petitioners; not for some other changes which
the council may desire. If the proposed plat and petition
do not meet the approval of the city council, they are at
liberty to reject them entirely, in which event the original
plat will continue without modification.
In State, Condict. v. Ramsey, 65 N.J. L. 503, 47 Atl. 423,
the supreme court of New Jersey said:
"It is objected that it was not lawful for the surveyors to
return, or for the freeholders to confirm, a vacation less
extensive than that applied for. This objection must prevail.
Vacation rests on the same power and procedure as the laying
out of roads, and it has been often adjudged by this court
that the application is controlling in this regard. A material
variance from the application will vitiate the return. State
v. French, 24 N.J. Law 736; Powell v. Hitchner, 32 N.J.
Law 211; Freeman v. Price, 63 N.J. Law 151, 413 Atl. 432.
The surveyors can no more vacate part of the road of which
complete vacation is sought than they can lay out a road
differing materially from the application upon which they
act. The application to vacate may be limited to a part of
a road (State v. Bassett, 133 N. J. Law 26), but the vacation
cannot lawfully be less extensive than the application."
We think this the correct rule to be applied to the instant
case. If the council when acting upon the petition could,
upon their own initiative, change the vacation of one street on
the proposed replat, there would be no limitation upon their
power to change many others, which might result in the
preparation and adoption of a replat other than the one
petitioned for. While we will not inquire into the motives which
actuated the appellants when they signed the petition, it may
well be imagined that they might have been willing to endure
the inconvenience of submitting to the entire vacation of
East Aloha street, opposite their lots, in exchange for the
benefit to be derived by them from the title which they would
acquire to the north half of the portion of the street so
vacated, and which they might have regarded as ample
BRAZELL v. SEATTLE. 187
Oct. 1909 Opinion Per CROW, J.
compensation for their damages sustained. They have recovered
no compensation for any damages they have sustained by the
vacation of the south half, and the narrowing of the street
immediately in front of their lots.
Respondents, citing SS 4 of the statute, contend that the
petition and the notice conferred complete jurisdiction upon
the council to make such order in the premises as justice and
the public welfare may require, and that they were authorized,
in pursuance of such authority, to vacate a less portion
of the street than the petition requested. To confer
jurisdiction upon the council, the petition of three-fourths in
number and area of the owners was required. The proposed
replat may take or damage property not only of the petitioners,
but also of others in the district who have not petitioned,
and their property could not be so taken or damaged without
compensation. Const. art. 1, SS 16. The legislature to meet
this condition, by SS 4 authorized the assessment of damages
and benefits, and the words "make such order in the premises
as justice and the public welfare may require," used in SS 4,
undoubtedly refer to such necessary assessment of damages and
benefits, and were not intended to confer authority upon the
city council to first modify the proposed replat and then
adopt it as modified. Our conclusion therefore is that the
city council had no jurisdiction to make an order vacating
portion only of East Aloha street, where its entire vacation
was petitioned, and that its order making such partial
vacation is void.
The appellants, as the owners of lots abutting on the
portion of East Aloha street partially vacated and narrowed.
suffered special injury and damages, different in kind and
not simply in degree, from that suffered by the public
general, and are entitled to maintain this action to enjoin
such vacation. The right of the owner of a city lot to use
the adjoining street to its full width is well established,
questioned, and one of which he cannot be deprived without
just compensation. It is as much a property right as the
188 BRAZELL v. SEATTLE.
Opinion Per CROW, J. 55 Wash.
lot itself. In Dantzer v. Indianapolis Union R. Co., 141
Ind. 604, 39 N. E. 223, 50 Am. St. 343, 34 L. R. A. 769,
the supreme court of Indiana, quoting from its previous
decisions and commenting thereon, says:
"At least two cases in this state have defined the extent of
that appendant property right of access. In Haynes v.
Thomas, 7 Ind. 38, it is said: 'These decisions establish the
principle that besides the right of way which the public has
of passage over a street in a town or city, there is a
private right which passes to the purchaser of a lot upon the
street, and as appurtenant to it, which he holds by
implied covenant that the street *in front of his lot* shall
forever be kept open to its full width.' In the case of Tate
Ohio & R. R. Co., 7 Ind. 479, the court quotes the above
passage from the case of Haynes v. Thomas supra, and says,
in application of the principle to the facts of the case, that
the person, whether natural or artificial, causing the
obstruction, is liable to the owners of the adjoining lots for the
injury. It is thus carefully limited to those owning lots
*fronting' on the street* at the point of obstruction. That is
the case made in the record. *Such owners only seem to
sustain special injury*.' These cases, and probably others in
this state, hold that this property right cannot be taken or
obstructed, even with legislative sanction."
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 sock
protection in their individual capacity.
There are no allegations in the amended complaint
sufficient to show that as to any other streets vacated or changed
by the replat, the appellants are injured in any manner
other than as the public in general may be injured. This
being true, they are in no position to enjoin such vacation
SANDBERG v. LIGHT. 189
Oct. 1909 Statement of Case.
in this action. Ponischil v. Hoquiam Sash & Door Co.,
41 Wash. 303, 83 Pac. 316; Symons v. San Francisco, 115 Cal.
555, 42 Pac. 913, 47 Pac. 453.
As to the threatened assessments, the appellants should
seek their remedy by the usual course of appeal provided by
the city charter and the statutes of the state. The amended
complaint states a cause of action sufficient to entitle the
appellants to an order of injunction restraining the partial
vacation and narrowing of East Aloha street in front of
their property.
The judgment is reversed, and the cause remanded with
instructions to overrule the demurrer.
RUDKIN, C. J., DUNBAR, MOUNT, and GOSE, JJ., concur.