Smith v. Centralia, 55 Wash. 573, 104 Pac. 797 (1909).

                    SMITH v. CENTRALIA.                573
 Nov. 1909          Opinion Per FULLERTON, J.

      [No. 8134. Department One. November 6, 1909.]
C. SMITH et al., Respondents, v. THE CITY OF CENTRALIA,
                     Appellant. 1


OWNERS - RIGHTS. An abutting property owner on a street has an
interest different in kind from that of the public, where the
street is vacated so as to close or affect his access, and may
maintain an action to set aside an illegal vacation.

power to set aside a vacation of a street, although the same
is a legislative function, where the law or ordinance is invalid
and an attempt to enforce it is made or threatened.

vacation of a street pursuant to Laws 1901, p. 175, is invalid,
where the petition was not signed by the owners of more than
two-thirds of the private property abutting upon that part of
the street, the notice was not given, and the ordinance vacated
part of the street not described.

COMPENSATION. The interest of an abutting property owner in the
maintenance of the street is property of which he cannot be
deprived until just compensation has been paid.

COUNCILMAN. An ordinance vacating a street is invalid where a
councilman who cast the deciding vote for its passage was one of
the petitioners, and would profit by its enactment.

Appeal from a judgment of the superior court for Lewis
county, Rice, J., entered February 1, 1909, in favor of the
plaintiff's, upon overruling a demurrer to the complaint, in
an action to set aside an ordinance vacating a street.

B. H. Rhodes, Geo. Dysart, and C. D. Cunningham, for

Reynolds & Stewart, for respondents.


FULLERTON, J. - The record discloses that on September
8, 1908, certain persons owning property in the city of

1 Reported in 104 Pac. 797.

                Opinion Per FULLERTON, J.          55 Wash.

Centralia petitioned the city council of that city to vacate that
part of Tower Avenue, a street therein, fronting on block five
of Hanson's First Addition to Centralia, for a width of six
feet. Pursuant thereto the city council passed an ordinance
purporting to vacate not only that part of the street
requested, but also a part of the street six feet in width
fronting on block one, lying immediately north of block five, for
a distance of nearly five hundred and fifty feet. It was not
recited in the petition for vacation that the portion of the
street sought to be vacated, or the street itself, was not used
by the public or the adjoining property holders, nor did it
recite that any public necessity required the vacation of the
street. Nor did the ordinance purporting to vacate the
street make any such recitals, nor was any provision made
therein, or otherwise, for compensating property holders
whose property should be taken or damaged by such
vacation. The record also discloses that the petitioners for the
proposed vacation did not own two thirds of the private
property abutting upon the street sought to be vacated, nor
did the owners of two thirds of the property abutting
thereon consent to such vacation. It also appeared that one of
the petitioners was a member of the city council of the city
of Centralia, and owned property on that part of the street
proposed to be vacated, which would receive an accretion
arising from such vacation; that the city council consisted of
seven members, three of whom voted against the passage of
the ordinance vacating the street, and four in favor of the
ordinance, one of whom was the petitioning councilman whose
property would be benefited by the vacation.

This action was brought by the respondents to set aside
the purported vacation of the street. The plaintiffs therein
are the owners of property abutting upon Tower Avenue
on the side of the street opposite to that part of the street
vacated. To their complaint, setting out the foregoing
facts, and the further fact that their property would be
damaged by the vacation of the part of the street sought

                    SMITH v. CENTRALIA.                575
 Nov. 1909          Opinion Per FULLERTON, J.

to be vacated, the city demurred, and, on its demurrer being
overruled, elected to stand thereon, whereupon judgment
annulling and setting aside the ordinance was entered.

The appellant first contends that the respondents have no
capacity to sue; that such injuries as they will suffer by
reason of the vacation of the street, while they may differ
in degree, will not differ in kind from that suffered by the
general public. But this position is not tenable. The rights
which an owner of abutting property possesses in a street
are different in kind from that possessed by one whose
interest is only that of a right of way along the street. To
close or partially close a street affects the right of ingress
and egress to and from the property of an abutting owner,
makes it possible to curtail his supply of light and air, and
otherwise affects the value of his property; while a properly
owner whose right in the street is a mere right of way over
it as one of the public does not suffer these particular
injuries to his property. His loss, if any, unless the street be
the only passageway from his property to the main public
highways, arises from the fact that the way to and from his
property is less convenient than it was before, and the courts
are united in saying that this, while it may differ in degree,
does not differ in kind from the injury suffered by the
general public. Ponischil v. Hoquiam Sash etc. Co.,
41 Wash. 303, 83 Pac. 316. Where, however, the effect of closing
the street or highway is to close the only passageway a property
owner has from his property to the main public ways, such
an owner may properly challenge the action by a suit in
court, even though he be not an abutting property owner.
It was so held by this court in Smith v. Mitchell,
21 Wash. 536, 58 Pac. 667, 75 Am. Wash. 858; Dawson v. McMillan,
34 Wash. 269, 75 Pac. 807; and in Carl v. West Aberdeen Land
& Imp. Co., 13 Wash. 616, 43 Pac. 890. In Heller v.
Atchinson etc. R. Co., 28 Kan. 625, where the question of the
right to vacate a street was in question, the court said:

"Where a party owns a lot which abuts on that portion
of the street vacated so that access to the lot is shut off, it

                Opinion Per FULLERTON, J.          55 Wash.

is clear that the lot owner is directly injured, and may
properly challenge the action. The closing up of access to the
lot is the direct result of the vacating of the street, and he,
by the loss of access to his lot, suffers an injury which is not
common to the public."

So in this case, while the vacation is only partial, its effect
is to specially injure pro tanto the respondent's property,
and they may therefore properly maintain an action to set
aside the order of vacation.

The appellant next contends that the act of the city
council in vacating this portion of the street was the exercise of
a legislative function delegated to it by the legislature itself,
and that the courts are without power to interfere with its
exercise of the function or inquire into the manner in which
it is exercised. It undoubtedly is a general rule that the
courts will not interfere with an action of a body exercising
legislative functions, to correct mere errors or mistakes in
its proceedings, or to prevent the passage of a law or
ordinance duly pending; before a legislative body, because it may
conceive that the law or ordinance will be ineffective if passed,
but clearly the courts have power to inquire into the validity
of a law or ordinance after it has passed the legislative body
and an attempt to enforce it is made or threatened to the
injury of the personal or property rights of the citizen. The
courts have exercised this power slnee the foundation of the
government, and it is not necessary now to enter into a
discussion of the principles that are thought to justify it.

On the question of the validity of the ordinance we are
clearly of the opinion that it is invalid. The law delegating
to municipalities the power to vacate streets, Laws 1901,
p. 175, prescribes a mode for its exercise and the conditions
upon which it can be exercised. It provides that the vacation
shall be made by ordinance; that the proceeding shall be
initiated by a petition giving a description of the property to be
vacated, signed by the owners of more than two thirds of the
private property abutting upon the part of such street or
alley sought to be vacated; that upon presentation of the

                     SMITH v. CENTRALIA.                577
 Nov. 1909          Opinion Per FULLERTON, J.

petition, the city council shall by resolution fix a time when
the petition shall be heard and determined, of which hearing
the city or town clerk shall give twenty days' notice by a
written or printed notice set up in three of the most public
places of the city or town in which the street or alley
situated, and a like notice on the street or alley. It
alleged in the complaint, and admitted by the demurrer, that
these conditions were not even substantially compiled with;
that the petition presented did not describe the property
sought to be vacated by the ordinance; that it was not signed
by the owners of more than two thirds of the private
property abutting upon the street sought to be vacated, or by
owners of more than one eighth of such property, and that
there were other defects in the proceedings. These were
matters going to the power of the council to act, and
without a substantial compliance with them, any ordinance of
vacation based thereon must be void.

Moreover, it is alleged that the respondent's property will
be specially damaged by the vacation of this part of the
street, and that the amount of such damages was not
ascertained or paid into court for them, and no means provided
by which their damages could be ascertained. The ordinance
was void for this reason. The interest an abutting property
holder has in the maintenance of a street or highway is
property. This property, under the constitution, cannot be taken
or damaged until just compensation has been first made to
the owner, or paid into court for him, unless compensation
be expressly waived. Const., art. 1, SS 16.

The ordinance is invalid for another reason. A
councilman who cast the deciding vote for the passage of the
ordinance was one of the petitioners for the ordinance, and one
of the persons who would profit by its enactment. He was,
therefore, in effect adjudicating his own cause, in violation
of a maxim as old as the law itself. The judgment is affirmed.