In re Shilshole Avenue, 94 Wash. 583, 162 Pac. 1010 (1917).

IN RE SHILSHOLE AVENUE. 583
Feb. 1917 Syllabus.

      [No. 13750. En Banc. February 8, 1917.]
               In re SHILSHOLE AVENUE.
BOLCOM MILLS, INCORPORATED, et al., Respondents,
      v. THE CITY OF SEATTLE, Appellant. «1»

MUNICIPAL CORPORATIONS - LOCAL IMPROVEMENTS - ASSESSMENTS -

APPEAL - PROCEEDINGS - FINDINGS. Upon appeal from an assessment
for benefits for a local improvement under the act of 1911
(3 Rem. & Bal Code, SS 7892-22), providing for trial without a
jury and that the court shall confirm, correct, modify or annul
the assessment, the appeal vests the court with plenary
jurisdiction of the whole question of special benefits, to be
tried upon evidence, and findings of fact are not only appropriate
but necessary unless waived.

SAME - LOCAL IMPROVEMENTS - ASSESSMENTS - REVIEW - LEGISLATIVE

AND JUDICIAL QUESTIONS. Under 3 Rem.& Bal. Code, SS 7892-13,
which provides that the property within a local improvement
district shall be considered and held to be all the property
specially benefited and shall be assessed to pay the cost, or
such part thereof as may be chargeable against the property
benefited, the legislative determination by a city council of
public necessity has no bearing upon the question of special
benefits, which is a judicial question, under Const., art. 7,

SS 9, vesting the corporate authorities with the power to make
local improvements by special assessment or taxation, and under
the statute, Id., SSSS 7892-21, 7892-22, providing for a
judicial review of the question of benefits.
SAME. The only questions to be reviewed tinder such statutes are
the questions of direct or special benefits and the amount thereof
on the property included within the district; and property not
benefited cannot be assessed, nor can property be assessed for
more than it is benefited.

SAME - PROCEEDINGS - JUDGMENT - PARTIES BOUND. Where a city
has been consolidated with another, the latter succeeds to the
rights and obligations of the former, as fixed by an award
and judgment in condemnation proceedings for a local improvement.

SAME - PROCEEDINGS - BENEFITS - JUDGMENT - RES ADJUDICATA.
Where, in proceedings to condemn the right to damage streets by
flooding up to a certain level, in which two elements of damage
were involved: first, injury to the streets themselves and the
cost of restoring them to public use so as to be above the
potential water level, and second, the injury to abutters from
the raising of the level of the streets above the abutting
property, and the city has

«1» Reported in 162 Pac. 1010.

584 IN RE SHILSHOLE AVENUE.
Opinion Per HOLCOMB, J. 94 Wash.

been paid the award for the damage to the streets, it is under
obligation to restore them to public use, and cannot levy special
assessments for the same improvement again; at least not without
crediting the amount received and showing any necessary additional
cost not awarded and collected; and where this was not done, the
proceeding and judgment in a former assessment is res adjudicata
of the question involved and decided therein, and is a bar to any
further assessment for raising the level of the street.

ELLIS, C.J., MORRIS, and MAIN, JJ., dissent.

Appeal from a judgment of the superior court for King
county, French, J., entered February 29, 1916, upon
findings in favor of the plaintiffs, on appeal from the decision
of the city council confirming an assessment for a public
improvement, tried to the court. Affirmed.

Hugh M. Caldwell and Howard A. Hanson, for appellant.

Donworth & Todd, Higgins & Hughes, J. P. Wall, and
W. W. Wilshire, for respondents.

HOLCOMB

HOLCOMB, J. - In this matter about sixty individuals and
companies, upon whose property the assessment involved had
been laid by the city under an ordinance No. 30,389, for the
special benefits by the physical filling and other
improvements of Shilshole avenue and other streets, avenues and
approaches thereto, appealed to the superior court from the
action of the city council in confirming the special
assessments against their lands. As to these property owners, who
are the respondents here, the judgment of the superior court
either reduced in amount or wholly canceled the assessments
that had been confirmed against their respective properties.
The property owners all acquiesced in the judgment of the
superior court, although that judgment confirmed the
assessments against many lots which were the subject of contest
in the court below and merely reduced many other
assessments which the property owners contend should have been
wholly canceled.

The proceeding is under the local improvement statute of
1911, Laws 1911, p. 441, now embodied in 3 Rem. & Bal.

IN RE SHILSHOLE AVENUE. 585
Feb. 1917 Opinion Per HOLCOMB, J.

Code, SSSS 7892-1 to 7892-72. In a former case, In re
Shilshole Avenue, 85 Wash. 522, 148 Pac. 781, involving an
assessment roll made in eminent domain proceedings by the
eminent domain commissioners of the city of Seattle to pay
the damages resulting from the raising of the grade of
Shilshole avenue and the incidental change of the grades of other
streets and avenues and approaches thereto, will be found a
succinct statement of most of the conditions and situations
existing in this proceeding as shown by the record, and an
announcement of the law as to certain questions involved
therein and which seem to be involved in this appeal. The
entire record in that case, including the decision and
remittitur from this court, were introduced in this case. The trial
judge who tried the former proceeding also tried this, and
in determining the matters involved in this case, deemed that
he was following the law of the case as settled by the decision
in the former case as to the question of special benefits
involved by this improvement.

Ninety-five errors are assigned by appellant in this case,
but they are reducible to two principal questions, which are
urged by the appellant in argument. They are these: (1)
The effect in this case of the findings of fact in the
condemnation assessment hearing which was involved in the
former appeal; (2) the legal status created between Seattle
and the lot owners by the King county canal judgment on
verdicts.

It is first vigorously contended that the determination of
necessity for and the character of the improvements is a
legislative function to be, and which was, determined by the
legislative authority of the city. In this respect the city
contends that the physical grading of these streets and
approaches was determined as a matter of necessity by the
city, and that it was determined to have been necessary to
grade the streets and approaches to" certain heights above
flooding for the purpose of sewering the property involved,
and that the sewering of the abutting property required

586 IN RE SHILSHOLE AVENUE.
Opinion Per HOLCOMB, J. 94 Wash.

filling to such elevations. This theory the lower court
rejected. The city also contends that it acquired the fight
make such fills by an eminent domain proceeding under
ordinance No. 29,834, pursuant to the act of 1907, Laws 1907,
pp. 321, 325, SSSS 15, 23, as amended by the act of 1909,
chapters 210 and 211, Laws 1909, pp. 723, 724 (Rem.
Bal. Code, SSSS 7782, 7790). That was the proceeding which
was involved in the former appeal. In that case an
assessment roll was prepared by the eminent domain commission,
assessing the property assumed to be specially benefited to
defray the costs of the improvement. Upon that hearing,
certain findings were made, conclusions of law entered, and the
assessment roll was set aside and the matter referred to the
commission with instructions to prepare a new roll.
Cross-appeals were taken. The city took no exceptions to the
findings of the trial court. The judgment was reversed with
instructions to cancel the assessments. See In re Shilshole
Avenue, supra. A petition for rehearing, setting forth,
among other points, that an order setting aside an
assessment roll and directing the preparation of a new roll was
not a final order and that this court had no jurisdiction
thereof, was denied. Following this, the lower court entered
an order canceling all eminent domain assessments arid
barring the city from levying any eminent domain assessments
against any property involved in the first appeal. In this
proceeding, the trial court held that the findings, judgment
and remittitur of this court, which were admitted in evidence,
were res adjudicata as to the parties and the issues involved
therein; and the city is certainly one of the parties involved
therein. Much of the reasoning in that case might with profit
be reiterated here as decisive of much of this controversy.

His Honor ruled throughout that the determination of the
city council that the improvement was necessary was binding
upon the court and all parties, so far as concerned any
attempt to stop the improvement or to interfere with the
perfect freedom of the city to make or not to make it. In

IN RE SHILSHOLE AVENUE. 587
Feb. 1917 Opinion Per HOLCOMB, J.

determining the further question, viz., whether the abutting
property was benefited by the improvement, he held that this
was a question of fact to be determined by the court from
the evidence and giving due weight and consideration to the
presumptions raised by the acts of the city. The statutes
referred to, relating to such local improvements, provide for
an assessment roll, and require the city council to sit as a
board of equalization for the purpose of considering such roll,
and to correct and revise it and to confirm it by ordinance.
In case objections were filed by any property owners, the
council is required to consider and pass upon such objections.
Section 22 of that act of 1911 (Laws 1911, p. 458, SS 22; 3
Rem. & Bal. Code, SS 7892-22) provides that the decision of
the council or other legislative body, upon any objections
made within the time and in the manner prescribed by the
act, may be reviewed by the superior court upon appeal taken
thereto. A trial of the matter by the court without a jury
is provided. It is also provided that the judgment of the
superior court shall confirm, correct, modify, or annul the
assessment, in so far as the same affects the property of the
appellant. It makes no provision for referring the matter
back to the city council. It seems that the appeal vests the
superior court with plenary jurisdiction of the whole
question of special benefits.

The city seemed to contend, and seems to contend here,
that the fact that the city has the legal right to determine
at what grade it shall improve the streets deprives the court
of power to consider the question of special benefits on the
trial of the statutory appeal. The trial court proceeded
upon the theory that, in determining the question of benefits,
he must be governed by the evidence as to the character of
the abutting property claimed to be specially benefited,
having due regard to existing circumstances and requirements
and those reasonably to be anticipated. He did not question
the finality of the city council's decision of the necessity of
the improvement, but when the city claimed that that

588 IN RE SHILSHOLE AVENUE.
Opinion Per HOLCOMB, J. 94 Wash.

determination was conclusive evidence of the benefits to the
particular property involved, and that the particular grade
established by the city was necessary for the use and
development of the abutting property, he refused to be bound by
the legislative declaration of the necessity for the
improvement as a determination of the benefits to accrue to the
abutting property. In other words, he tried the case upon
the theory that the statutory appeal provided by the law
required him to examine into the facts as to the benefits to
accrue to the property involved and determine the matter
accordingly, and upon this theory he disposed of the case.

In so disposing of the case, appellant claims that he "fixed
a judicial grade," substituting it for the legislative grade
established by the city authorities. What the trial court
did, in substance, was to hold that the city had the undoubted
right to raise the grade of streets to any height that it
desired within reason, but an abutting property owner would
not be specially benefited by elevating the streets any more
than to place them in a dry and usable condition above the
height to which the water would be raised by the
construction of the Lake Washington canal, following the finding
sustained in In re Shilshole Avenue, supra. In doing so he
grouped the properties according to the conditions shown to
exist, and as to the streets which had before been graded, he
canceled the assessments; as to streets which were before
ungraded, he directed that computations and estimates be made
of the cost of filling to elevations of nine and five-tenths feet
above city datum, to which height the city had acquired the
right to flood on account of the necessities of the Lake
Washington canal; as to streets which were above the elevation
of nine and five-tenths feet, he allowed, as a special benefit,
the cost of merely surfacing such streets, and in both of the
last mentioned instances the cost of placing thereon and
therein such walks, gutters and other municipal
improvements as the city had provided for in this proceeding. He
then distributed this cost upon the abutting property as

IN RE SHILSHOLE AVENUE. 589
Feb. 1917 Opinion Per HOLCOMB. J.

local assessments are spread, and reduced the assessments
levied by the city to such sums, which he then confirmed
against the lots. The grades which had been established by
the city for the streets, avenues and approaches were to an
elevation of sixteen to eighteen feet above city datum. The
court held, as a matter of law and of fact, that these grades
were excessive grades, so far as the property owners were
concerned, and did not confer any special benefits upon the
abutting property. It is apparent that what the trial court
attempted, at least, was to ascertain and determine from the
evidence lines of demarcation between what were special
benefits to the property affected and what were not, under
the circumstances and situations of the various properties
the time.

The trial court made and entered very comprehensive
findings of fact upon the evidence, resolving the evidence, where
it was in conflict, in favor of the property owner in some
instances and in favor of the city in others, to a greater or
less degree, apparently keeping in view at all times in
determining such questions the pronouncement by this court
particularly in the former appealed cases. The findings of
the trial court are amply supported by evidence, and whether
findings are necessary at all in such a case, they are
appropriate, and in this case constitute a valuable epitome of the
great mass of evidence introduced. This being a statutory
or law proceeding friable without a jury, we may say that
findings are not only appropriate but necessary, unless
waived.

Upon the question of the public use and public necessity,
the many former holdings of this court are cited, on the
initial question of the right to maintain eminent domain
proceedings to acquire or to damage private property for public
use, where we have held to the principle that, in original
eminent domain proceedings, the determination of the question
of public necessity by municipalities is conclusive upon the
courts in the absence of fraud. This rule has been laid down

590 IN RE SHILSHOLE AVENUE.
Opinion Per HOLCOMB, J. 94 Wash.

in many cases, all of which were collected and referred to in
Tacoma v. Titlow, 58 Wash. 217, 101 Pac. 827, and
afterwards referred to in Tacoma v. Brown 69 Wash. 538,
125 Pac. 940, and adhered to in Maggs v. Seattle,
74 Wash. 133 Pac. 388; Spokane v. Merriam, 80 Wash. 222, 141 Pac.
858, and In re Appeal of North Yakima, 87 Wash. 279, 151
Pac. 795. None of these cases hold or intimate that, in a
proceeding to assess the benefits directly upon the property
affected by the public improvement under the local
improvement statutes, the legislative determination of necessity has
any bearing upon the question of benefits or forecloses
judicial inquiry upon that subject. On the contrary, the
statute and the constitutional provision which supports the
statute, providing that, "The legislature may vest the corporate
authorities of cities, towns, and villages with power to make
local improvements by special assessment, or by special
taxation of property benefited" (Const., art. 7, SS 9), clearly make
the question of the direct or special benefits a judicial one
and protect the citizen against an assessment in excess of
the benefit. Dillon, Municipal Corporations (5th ed.), SS 1439.
The statute provides for a judicial review of the question of
the benefits to the property affected. If the court had no
other function than to confirm or register the decree of the
city council as to what property was benefited and to what
extent, there is no review, and the provision for removing the
matter to the superior court for review is an empty formality.
While the trial might be permitted and a mass of evidence
introduced, it would be totally unavailing because the
benefits would have been determined in advance by the city council
and would necessarily he confirmed, which could be done
without a trial or review. As we said in the former Shilshole
Avenue case, at page 537:

"It is the basic principle and the very life of the doctrine
of special assessments that there can be no special assessment
to pay for a thing which has conferred no special benefit
upon the property assessed. To assess property for a thing

IN RE SHILSHOLE AVENUE. 591
Feb. 1917 Opinion Per HOLCOMB, J.

which did not benefit it would be pro tanto the taking of
private property for a public use without compensation, hence
unconstitutional."

And in former cases, such as In re Leary Avenue, 77 Wash. 399,
138 Pac. 8, and In re Fifth Avenue and Fifth Avenue South, 66
Wash. 827, 119 Pac. 852, it was positively announced as "the
duty of the court to inquire whether the property is assessed
more or less than it is specially benefited."

Section 7892-13 of the statute under which these
proceedings are maintained provides:

"All property included within said limits of such local
improvement district shall be considered and held to be the
property and to be all the property specially benefited by such
local improvement, and shall be the property to be assessed
and pay the cost and expense thereof *or such part thereof
as may be chargeable against the property specially
benefited by such improvement*, . . ."

Thus, the statute negatives any attempt to settle the
question of special benefits as a legislative one.

In this proceeding all the public improvements were
included within one local improvement district, and the
appellant asserts that, because the right to take or damage part
of the properties was acquired under different condemnation
proceedings, the question of the assessment of benefits was
determined to the extent of the properties affected in those
condemnation suits and could not afterwards be reviewed in
any proceeding. That situation does not present any other
or different question. The benefits here assessed are assessed
within one public improvement district. The statutes under
which the city proceeded, referring more particularity to
SS 7892-21, provide for an equalization by the city council,
with authority to correct, revise, raise, lower, change or
modify the roll as shall be just and equitable, and the
following, SS 7892-22, then provides that:

"The decision of the council or other legislative body upon
any objections made . . . may be reviewed by the superior

592 IN RE SHILSHOLE AVENUE.
Opinion Per HOLCOMB, J. 94 Wash.

court upon an appeal thereto . . . The judgment
of the court shall confirm, correct, modify, or enroll
the assessment in so far as the same affects the property of
the appellant."

This hearing in the superior court is, therefore, a trial
before the judge without a jury, a statutory proceeding, and
is a real and necessary trial on evidence. The only questions
to be reviewed by the superior court on such an appeal are
the question of direct or special benefits and the amount
thereof on the property included within the improvement
district, as to which objections were made and an appeal taken
by the objectors to that court. Upon determining those
matters, it is the duty of the court to confirm, modify, correct
or annul the assessment in so far as the same affects the
property of the appellant. Property not benefited cannot
be assessed. In re Elliott Avenue, 74 Wash. 184, 133 Pac.
8; Spokane v. Gilbert, 61 Wash. 361, 112 Pac. 380;
Spokane v. Fonnell, 75 Wash. 417, 135 Pac. 211; Aumiller v.
North Yakima, 75 Wash. 96, 131 Pac. 470. Nor can the
property be assessed *for more* than it is benefited. In re
Eighth Avenue Northwest, 77 Wash. 570, 138 Pac. 10; State
ex rel. Murphy v. Wright, 76 Wash. 383, 186 Pac. 482;
Murphy v. Summersett, 84 Wash. 565, 147 Pac. 199; Viegle
v. Spokane, 78 Wash. 359, 189 Pac. 33; In re Leery Avenue,
Seattle, 77 Wash. 399, 138 Pac. 8; Spokane v. Kraft,
82 Wash. 238, 144 Pac. 286; East Hoquiam Co. v. Hoquiam,
90 Wash. 210, 155 Pac. 754; In re Shilshole Avenue, supra;
Reynolds v. Cosmopolis, 84 Wash. 660, 147 Pac. 407.

In the last mentioned case, it was stated that the
respondent property owner "had an adequate remedy under the
statute, which gives the right to file objections to the assessment
roll, and an appeal therefrom. If the respondent has rights
which are being invaded by the amount of the proposed
assessment upon her property, they can be fully and
adequately protected by means of the appeal provided by the
statute." So, also, in Seattle Mattress & Upholstery Co.

IN RE SHILSHOLE AVENUE. 593
Feb. 1917 Opinion Per HOLCOMB, J.

v. Seattle, 69 Wash. 666, 125 Pac. 1013, it was stated that
the question there to be determined was one of special
benefits to be determined on the evidence. In the Leary Avenue
case, where the court, upon an appeal by the property
owners, reduced the assessment fifty per cent in an eminent
domain proceeding, we said that we were unable to say that
the court did not arrive at a correct decision upon that
question. In In re Fifth Avenue and Fifth Avenue South, supra,
we said that the amount to be assessed against property
within the district and proper to be assessed was an
appropriate subject of judicial inquiry, and, following a long line
of cases, the judgment of the court would not be disturbed
or modified unless the evidence so preponderates against the
judgment as to indicate an arbitrary disposition on the part
of the commissioners or the court. In Murphy v.
Summersett, supra, it was said:

"The real issue is the amount of benefits resulting to
several lots and tracts of Summersett et al. Upon this issue
they were not foreclosed, nor were they foreclosed upon any
question of fact relevant to this issue."

In Ankeny v. Spokane, 92 Wash. 549, 159 Pac. 806, it
was declared:

"All of the authorities agree that a local improvement to
be chargeable upon private property as such must possess
at least two essential elements; (1) the improvement must be
of a public nature, as contradistinguished from one purely
private, . . . and (2) it must confer a special benefit
on the property sought to be specially charged with its
creation and maintenance, over and above that conferred
generally upon property within the municipality."

Without multiplying authorities further, it is clear that
the trial court proceeded upon the right theory,
notwithstanding the contentions of appellant that there are facts
and circumstances in this case distinguishing it from any of
the cases herein cited. In the assessments disturbed by the
court, the city had proceeded upon fundamentally wrong
bases. As has been repeatedly declared, the ultimate question

594 IN RE SHILSHOLE AVENUE.
Opinion Per HOLCOMB, J. 94 Wash.

to be determined is, what property was specially
benefited by the improvement created by the city, and to
what extent was it benefited. This the court determined upon
evidence, and the evidence seems to justify his determination.
The trial court, in fact, very carefully followed and applied
the principles declared in the former case of In re Shilshole
Avenue, supra.

The second proposition raised by appellant involved the
introduction in evidence and the consideration of the verdict
and judgment awarded to the city of Ballard in the former
King county canal condemnation case. That case is also
referred to in the former Shilshole Avenue case, supra, at
page 524. It is there stated that:

"In that proceeding, the property owners received
compensation for the flooding of their property, and the city of
Ballard for the flooding of the streets. The amount allowed
to the city was $7,500, which the city accepted and devoted
to municipal uses. Subsequently, and some years prior to
the proceedings here involved, the city of Ballard was
annexed to the city of Seattle, which city succeeded to all of
the property rights and obligations of the city of Ballard."

Two conclusions of law of the trial court are set out in
full in the former opinion at pages 529 and 530, which more
fully explain this matter.

At the time of the condemnation for the Lake Washington
canal, the property of the city of Ballard, which was then
a separate municipality, was condemned and the right
acquired to damage the same by flooding up to a certain
elevation. The city of Ballard, as that record shows, in its
answer, claimed the cost of restoring the streets, and obtained
the verdict and judgment which was shown by the evidence
as the jury's award therefor. It may have been a very
inadequate award, but it was the total award and, regardless
of the amount thereof, was a judicial determination of the
cost of restoration of the streets to a dry and usable
condition up to a certain elevation, and was a final judgment

IN RE SHILSHOLE AVENUE. 595
Feb. 1917 Opinion Per HOLCOMB, J.

rendered by a court of competent jurisdiction. Afterwards,
when the city of Ballard became a part of the city of
Seattle, certainly the city, of Seattle, as successor in interest
of everything the city of Ballard had ever had, became
possessed of all the city of Ballard's rights, including the award
which had been made it and which had gone into its general
fund and assets, and also succeeded to its rights or
obligations to restore its streets which had been affected by those
judicial proceedings. The proceedings and judgment in the
case were, therefore, material anti competent and were res
adjudicata of the questions involved therein.

In that case, King county acquired the right to damage
or injuriously affect the streets then in Ballard, now in
Seattle and largely included within the present local
improvement district, by flowage. The streets still retained their
status as public highways, and the municipality still retained
the right to restore them for street purposes above flood
level. There was no perpetual destruction of access
condemned and acquired, but only the injury to access resulting
from the fact that the streets, when restored, would be at a
higher level. There were, therefore, two elements of damage
involved in that condemnation; first, the injury to the streets
themselves and the cost of restoring them to public use so
as to be above the potential water level; and second, the
injury to abutters resulting from the fact that the streets
when restored would have to be restored considerably above
their old level. Unquestionably the municipality, rather
the abutting property owners, after having received its
award for the damage to its streets, was under the
obligation of restoring them or rendering them accessible after
the flooding thereof; and the abutting property owners could
not, and did not, receive any portion of that element of
damage, that is, the award for restoring the streets to
accessibility. Schuchard v. Seattle, 51 Wash. 41, 97 Pac. 1106;
re Harrison Street, 74 Wash. 187, 133 Pac. 8; Hinckley v.
Seattle, 74 Wash. 101, 132 Pac. 855, Ann. Cas. 1915A 580,