Allen v. City of Spokane

• Decision Date: 10 October 1919
• Docket Number: 15278.
• Citation: 184 P. 312,108 Wash. 407
• Parties: ALLEN v. CITY OF SPOKANE.
• Court: Washington Supreme Court

184 P. 312

108 Wash. 407

ALLEN v. CITY OF SPOKANE.

No. 15278.

Supreme Court of Washington

October 10, 1919

Department 2.

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Action by Mary F. Allen, as executrix of the estate of Joseph S Allen, deceased, and personally, against the City of Spokane. From judgment for plaintiff, defendant appeals. Affirmed.

Holcomb C.J., dissenting.

J. M Geraghty and Alex M. Winston, both of Spokane, for appellant.

Stephens & Jack, of Spokane, for respondent.

FULLERTON J.

This action was instituted by the respondent, suing in her own right and in her capacity as executrix of her husband's estate, to cancel an assessment levied by the appellant, the city of Spokane, upon real property of which the respondent and her husband, subsequent to the time the assessment was levied, became the purchasers. The trial court entered a judgment canceling the assessment, and the city appeals.

The facts are disclosed by the pleadings. On December 6, 1906 certain owners of real property in the city of Spokane petitioned the board of public works of that city to cause that part of Spokane street lying between Sprague avenue and Third avenue to be improved at the expense of the owners of the property benefited, by grading the same to the established grade for the full width thereof and by building sidewalks upon each side thereof. The land now owned and represented by the respondent abutted upon the proposed improvement; it was then owned by one W. F. Mitchem, who joined in the petition for the proposed improvement. There seems to have been at that time some doubt in the minds of the city officials whether the way petitioned to be improved had been dedicated as a street, or was in fact a part of Spokane street; and, to remove this doubt, Mitchem, with other abutting and adjacent property owners, filed, affidavits with the board of public works, averring:

That the way had been 'generally, habitually and universally traveled by the citizens and residents of the city of Spokane, and by the public at large adversely, continuously, and uninterruptedly for a period of more than eleven (11) years prior to the date of the affidavit; and that the same has been during all of said time, and is now, used by said citizens of Spokane and the public at large as and for a public street.'

The city, in response to the petition, caused the way to be improved and caused the assessment now in question to be levied to pay the cost thereof. The proceedings leading up to the assessment, in so far as the record before us discloses, were regular; the notices required by the form of procedure then in force were duly given, and opportunity to protest against the improvement, the manner in which it was made, and the amount of the levies, were duly given the landowners whose property was assessed. No protest of any kind was made by the then owners of the property now owned by the respondents. The assessment was made payable in ten annual installments, the first installment falling due on May 15, 1909. Of these installments, Mitchem paid three, namely, the installments falling due in 1909, 1910, and 1911, when he sold the property to the respondent and her husband. The new owners paid the installments falling due during the next four years, namely, the years 1912, 1913, 1914, and 1915. After the last payment, an action was instituted against the city by the person claiming the property improved as a street, wherein it was adjudged that the property was not and never had been a public street, but was the private property of the claimant. The present owners then demanded of the city a cancellation of the remaining installments of the assessment. The city refused to comply with the demand, and the present action was begun, with the result first stated.

For reversal the city makes two principal contentions: First, that the question whether the property improved as a street was actually a street cannot be litigated in this form of action; and, second, that the respondent is estopped, by the acts of her predecessor in interest in the property, to question the validity of the assessment.

While the authorities upon the first proposition are not in accord we think the better rule is that a property owner, whose property has been assessed for a purported street improvement, may, in an action to set aside the assessment, show that the property improved was not a public street. The cases which announce the contrary doctrine seem to proceed on the theory that the city can acquire the property, and thus make the improvement available to the public and of benefit to the property of the...