Spokane v. Fonnell, 75 Wash. 417, 135 Pac. 211 (1913).

 418    SPOKANE v. FONNELL.
                     Statement of Case.           75 Wash.

SAME - ASSESSMENTS - BENEFITS TO CITY. Neither access to a
public park by the opening of a street, nor the increase in the
value of the taxable property is of such a special benefit to the
city at large as to make it an abuse of discretion to refuse to
assess part of the cost of the improvement against the city.

SAME - ASSESSMENTS - BENEFITS - REVIEW - EVIDENCE -
SUFFICIENCY. The uniformity of an assessment upon lots abutting
on a street opened by condemnation proceedings is not alone
sufficient ground for setting aside the assessment roll, although
the evidence tends to show that some lots were benefited more
than others, when there was no such disparity as to make it
essential that they be assessed in different amounts.

SAME - REVIEW - EVIDENCE - SUFFICIENCY. The prima facie
correctness of an assessment for benefits by the opening of a
street, which thereby made a public park accessible to the
property assessed, is not overcome, although there was much
evidence tending to show that the property was not benefited,
where it was peculiarly a question of opinion as to just what
distance from the park accessibility thereto should be considered
sufficient basis for an assessment.

SAME - REVIEW - ARBITRARY ASSESSMENTS - EVIDENCE - SUFFICIENCY.
Where the only benefit to property in an assessment district,
other than that fronting upon the street to be opened, was that
derived from an easier access to a public park, it is unjust and
arbitrary to assess all the property at a uniform rate for each
fifty-foot lot, without regard to its distance from the park,
where from its physical situation it is self-evident that the
benefits necessarily diminish as the limits of the district
recede from the park, and real estate men, versed in values,
testified to a difference varying from 50 to 100 per cent of the
market value for nearby lots to as low as five per cent for lots
half a mile from the park.

SAME - ASSESSMENTS - PROPERTY BENEFITED - SCHOOL PROPERTY.
School house and playground property belonging to a school
district are assessable for public improvements, and it is error
to exclude it on the ground that it was not benefited because of
the use to which it was put, where it was situated with reference
to the improvement the same as other property in the district,
and as real estate received the same benefit.

SAME - PROCEEDINGS - REVIEW - ESTOPPEL. Petitions for the
establishment of a district do not operate as an estoppel to
raise the objection that the assessment was arbitrary.

Appeal from a judgment of the superior court for Spokane
county, Webster, J., entered January 24, 1912, in favor of
the defendants, setting aside a local assessment, after a
hearing on the merits. Affirmed.

                     SPOKANE v. FONNELL.                419
 Sept. 1913              Opinion Per ELLIS, J.

H.M. Stephens and Bruce Blake, for appellant.

William S. Lewis, E.W. Hand, Leander H. Prather, and
George F. Cowan, Jr., for respondents.

 420    SPOKANE v. FONNELL.
                    Opinion Per ELLIS, J.           75 Wash.

most of its distance is at Helena street, two blocks east
of Denver street. We reproduce a plat from the respondents'
brief which we find to be approximately correct. The
heavy lines show the boundaries of the district.

                [[[graphic goes here]]]

The limits of the district, as shown by the testimony of
the commissioners, were fixed upon the theory that the
property included therein was within walking distance of the park
and that the inhabitants of the district were placed in a more
accessible situation for the enjoyment of the park. The
contestants are the owners of various properties lying south of
the southerly end of Denver street. The parties may be
designated as appellant and respondents.

                     SPOKANE v. FONNELL.                421
 Sept. 1913              Opinion Per ELLIS, J.

There is one general objection, going apparently to the
whole assessment except as against the property abutting
on Denver street itself. It is, that the matter of access to the
park is not such a special benefit as justifies any assessment.
This objection seems to have largely influenced the court in
setting aside the roll. We think, however, that such a
benefit, like any other circumstance peculiarly enhancing the use,
convenience or enjoyment of property, or in any manner
making its environment more desirable, is a benefit sufficient
to sustain a special assessment. In re Seattle, 46 Wash. 63,
89 Pac. 156; In re Harvard Avenue North, 47 Wash. 535, 92
Pac. 410; Spokane v. Curtiss, 66 Wash. 555, 120 Pac. 70.

The other objections to the roll go to the limits of the
district, the inclusion therein of property which it is claimed
was not benefited, the exclusion therefrom of property which
it is claimed was in any event equally benefited with the
property included, and the claim that the assessments were
arbitrary. We have frequently held that the action of the
commissioners in fixing the limits of the district and in
determining what property is in fact benefited in apportioning the
cost of improvement, in the absence of fraud or action clearly
arbitrary, will not be disturbed by the court. The
commissioners being appointed for the very purpose of doing these
things, their action is entitled to the same presumption which
attends official action in other cases, and is conclusive in the
absence of mistake, fraud or arbitrary discrimination
amounting to an abuse of discretion. In re Westlake Avenue,
40 Wash. 144, 82 Pac. 279; In re Seattle, and In re Harvard
Avenue North, supra; In re Seattle, 50 Wash. 402, 97 Pac.
444; In re Pine Street, 57 Wash. 178, 106 Pac. 755; In re
Jackson Street, 62 Wash. 432, 113 Pac. 1112; In re Fifth
Avenue etc., 66 Wash. 327, 119 Pac. 852; Spokane v.
Curtiss, supra. With this general principle in view, we will
examine the specific objections.

I. It is first claimed that the commissioners arbitrarily
refused to assess any part of the cost of the improvement

 422    SPOKANE v. FONNELL.
                    Opinion Per ELLIS, J.           75 Wash..

against the city of Spokane. It is argued that the park
being made more accessible by the extension of Denver street
was a special benefit to the city of Spokane and to its
inhabitants generally. This is no more than the assertion of
a general benefit such as would result from any improvement.
When the whole of the voluminous evidence is fairly sifted,
the only statement of a tangible benefit to the city as such
is found, as stated by one of the witnesses, in the increase in
value of its taxable property. This benefit is a mere reflex
on the whole corporate body of special benefits to property
owned by certain of its citizens. It is obvious that the
improvement here in question had no such independent value to
the city as a corporate entity as to make it a special public
benefit. Spokane v. Curtiss, supra. We find nothing in this
objection which would warrant the court's action in setting
aside the assessment. There is no evidence of arbitrary action
amounting to an abuse of discretion on the part of the
commissioners in refusing to assess any of the cost of the
improvement to the general fund. In the absence of such
arbitrary action, their findings on this question are conclusive.
In re Fifth Avenue etc., supra; Powell v. Walla Walla,
64 Wash. 582, 117 Pac. 389; Northern Pac. R. Co. v. Seattle,
46 Wash. 674, 91 Pac. 244, 123 Am. St. 955, 12 L.R.A.
(N.S.) 121.

II. It is next claimed that lots abutting on Denver street
were assessed only $25 a lot, without regard to the actual
special benefits which they received from the improvement.
The assessment roll places an assessment of $25 a lot on all
of the lots abutting on Denver street. From the south end
of Denver street to the south end of the district the
assessment is distributed uniformly at the rate of $10.75 for each.
fifty-foot lot. The evidence tended to show that the lots
abutting on Denver street received a much greater benefit
than the other lots. The question of benefits, like that of
value, is one resting largely in opinion. Though the evidence
tends to show that the lots on Denver street were some

                     SPOKANE v. FONNELL.                423
 Sept. 1913              Opinion Per ELLIS, J.

of them benefited more than others, we cannot say that there
was shown such disparity in benefits as to make it essential
that the lots on Denver street be assessed in different amounts.
We have neither the power nor disposition to control the
discretion of the commissioners in making the assessment so
long as that discretion is not arbitrarily exercised. We may,
however, with propriety remark that the evidence strongly
points to the fact that the lots on Denver street are benefited
by the improvement, as compared with the lots lying further
south, to a greater extent than the roll before us would
indicate. The uniformity of the assessment against these lots
abutting on Denver street, however, would not be alone, under
the evidence as we view it, sufficient ground for setting aside
the roll.

III. It is claimed that no lots except those abutting on
Denver street were benefited by the assessment, and that no
other lots should have been included in the district. The
evidence shows that the park is made by the improvement more
accessible to all of the lots included in the district. Just
to what distance from the park such a benefit should be
considered sufficient basis for an assessment, is peculiarly a
question of opinion. There was much evidence tending to show
that the lots south of Denver street are not benefited at all.
There was, however, a unanimity of opinion that their
access to this park was facilitated by the improvement. There
was no such showing in the evidence as should be permitted
to overcome the prima facie correctness which must be
accorded to the limits of the district as fixed by the
commissioners.

IV. The contention is made that, if any property south
of Denver street is to be included in the district, then the
assessment is unjust and arbitrary in that all property south
of Denver street within the district is assessed at the rate
of $10.75 for each 50-foot lot, without regard to its distance
from the park. The only benefit to any of the lots is
obviously that derived from an easier access to Liberty Park. As

 424    SPOKANE v. FONNELL.
                    Opinion Per ELLIS, J.           75 Wash.

testified by one of the commissioners "that is the only benefit
we could possibly figure out." When we consider the
purpose of the condemnation, the nature of the locality and the
location of these lots, this testimony is convincing. From
the very physical situation the possible benefit was and could
be only that derived from an easier access to the park, and it
is self-evident that this benefit necessarily diminishes as the
limits of the district recede from the park. All of the lots
specially benefited in any manner are benefited, it is true, in
the same manner; that is, the benefit to all is of the same kind,
but there is a manifest difference in the degree of the
benefit as between lots nearer and those further away from the
park. As might be expected, this fact is reflected in the
evidence as to the benefits tested by the actual effect on the
market value. Various witnesses, real estate men versed in
values, testified that the property on Denver street would be
benefited by the improvement from 50 per cent to 100 per
cent of their market value, while certain lots further away
would be benefited as they recede therefrom from 50 per
cent to 5 per cent of their value. As we have said, the
question of benefits like any other phase of the inquiry, as to
values, is largely a matter of opinion, but even opinion evidence
must be tested by its inherent probability. The evidence
furnished by the prima facie correctness of the roll, that lots
over one-half a mile from the park are benefited to the same
extent by increased access to the park as lots very much
nearer, is too inherently improbable to stand as against the
positive evidence to the contrary. Upon this ground, we think
the trial court was justified in setting aside the roll and
ordering a reassessment.

V. The commissioners excluded from the district the
Grant school property, owned by school district No. 81, and
the Bowers Play Ground, owned by the city of Spokane for
play ground and amusement purposes. These properties
were excluded for the sole reason that the use to which they

                     SPOKANE v. FONNELL.                425
 Sept. 1913              Opinion Per ELLIS, J.

are put and their value for that use would not be enhanced
by reason of access to the park. We have held that where
school property is situated with reference to the
improvement the same as other property within the district, it is
subject to assessment. In re Howard Avenue North, 44 Wash. 62,
86 Pac. 1117, 120 Am. St. 973. We have also held that
no part of the cost of such improvement can be assessed
against a public park, when the constitutional debt limit of
the city has been exceeded. Powell v. Walla Walla, supra.
It is evident that the school property and the play ground,
considered merely as real estate without regard to their use
for school and amusement purposes, are benefited in the same
manner and to the same extent by the improvement as the
property within the district adjacent thereto. There is no
claim that the assessment of the play ground would create a
debt beyond the constitutional limit. These properties should
be included in the district and assessed.

The appellant offered in evidence petitions to the city
council signed by certain of the respondents requesting the
improvement. These were excluded, improperly as we think,
but their admission could not have changed the result. They
would go only to establish an estoppel to deny some benefit.
They could not operate as an estoppel to assert that the
assessments were arbitrary in amount.

Summarizing, we conclude that the special benefits
conferred by access to the park are sufficient to sustain the
assessment against all property so especially benefited to pay
for the improvement; that no arbitrary action or abuse of
discretion in refusing to assess any part of the cost of
improvement to the city was shown; that the limits of the
district were not shown to be so arbitrary either as to inclusion
or exclusion of property as to require a modification except
so as to include the school property and play ground; but
that the assessment of all property south of Denver street
at the same amount for each 50-foot lot without reference

 426    SPOKANE v. OREGON-WASHINGTON R. & NAV. CO.
                    Opinion Per MOUNT, J.           75 Wash.

to its distance from the park was so essentially arbitrary as
to require a reassessment. The order of the trial court is
therefore affirmed.

CROW, C.J., MAIN, and FULLERTON, JJ., concur.