Anderson v. Port of Seattle, 33739

• Decision Date: 04 December 1956
• Docket Number: No. 33739,33739
• Citation: 49 Wn.2d 528,304 P.2d 705
• Court: Washington Supreme Court
• Parties: Ted ANDERSON et al., Plaintiffs, H. O. Fitch, Daniel C. Hart, Kermit L. Harvey, A. V. Holcomb, Fannie Minshall, and Mark B. Walker, Appellants, v. PORT OF SEATTLE, a municipal corporation, and Northwest Airlines, Inc., Pacific Northern Airlines, Inc., Pan American World Airways, Inc., United Air Lines, Inc., and Western Airlines, Inc., Respondents.

Page 528

49 Wn.2d 528

304 P.2d 705

Ted ANDERSON et al., Plaintiffs H. O. Fitch, Daniel C. Hart, Kermit L. Harvey, A. V Holcomb, Fannie Minshall, and Mark B. Walker, Appellants, v. PORT OF SEATTLE, a municipal corporation, and Northwest Airlines, Inc., Pacific Northern Airlines, Inc., Pan American World Airways, Inc., United Air Lines, Inc., and Western Airlines, Inc., Respondents.

No. 33739.

Supreme Court of Washington, Department 2.

Dec. 4, 1956.

Breskin & Hilyer, Seattle, for appellants.

Bogle, Bogle & Gates, Tom M. Alderson, J. Kenneth Brody, George N. Prince, Seattle, for Port of Seattle.

Holman, Mickelwait, Marion, Black & Perkins (J. Paul Coie) Graham, Green & Dunn, Karr, Tuttle & Campbell, Seattle, for respondents.

ROSELLINI, Justice.

The appellants are six of the named plaintiffs, H. O. Fitch, Kermit L. Harvey, Fannie Minshall, Daniel C. Hart, A. V. Holcomb and Mark B. Walker. They appeal from a summary judgment entered against them in consolidated actions brought on the theory that their properties had been taken and damaged under color of the power of eminent domain without just compensation having been first made.

It was alleged in the complaints that the respondent Port of Seattle, a municipal corporation (hereafter referred to as the port) owns and operates an airport adjacent to the properties of the appellants; and that airplanes of the respondent airlines (hereafter referred to as the airlines) in landing and taking off from the airport, fly at altitudes of less than five hundred feet over these properties, damaging the appellants in the use and enjoyment of their premises. It was alleged that the actions of the respondents had reduced the rental value and the market value of the appellants' properties.

The court was asked to determine the liability of the various respondents and enter judgment either jointly and severally or apportion the judgments according to the respective liabilities of the respondents, in the amount of eighty per cent of the rental value from and after June 15, 1952, to date of trial, and eighty per cent of the market value of their properties. It was further alleged in the complaints that on or about November 1, 1955, the port had purchased the properties in question from the appellants.

The port moved for summary judgment, filing affidavits which showed that the properties in question had been appraised at their fair cash market value based upon their highest and best use, with no allowance for depreciation due to the proximity of the airport and the operations conducted thereon; that the appellants had been offered these prices, had accepted them, and had been paid. The airlines moved for summary judgment on the same facts. In their controverting affidavits, the appellants alleged that, in accepting these purchase offers, they had not relinquished any of their rights to pursue their remedies for past damages.

The court determined that, having received the fair cash market value of their properties, without depreciation on account of the respondents' acts, the appellants had elected to treat the taking as permanent in nature, and that therefore they were not entitled to recover in addition the lost rental or use value, which is the measure of damage when the taking or damaging is temporary; and further, that having been made whole by the payment by the port, they were not entitled to further compensation from the other respondents.

The taking or damaging of land to the extent reasonably necessary to the maintenance and operation of other property devoted to a public use, is a taking or damaging for a public use and subject to the provisions of Art. I, § 16, amendment 9, of the state constitution. Boitano v. Snohomish County, 11 Wash.2d 664, 120 P.2d 490. The parties are agreed that the effect of the airport operation on the appellants' properties was such a taking or damaging.

This court has repeatedly recognized that the measure of compensation for such a taking or damaging is dependent upon the nature of the injury, whether it is permanent or temporary. In Messenger v. Frye, 176 Wash. 291, 28 P.2d 1023, 1026, a case involving the diversion of waters on the plaintiff's land, we said:

'Where a trespass has resulted in permanent or irreparable injury, the proper measure of damages is the difference between the value of the land...