Bowes v. City of Aberdeen

• Decision Date: 31 May 1910
• Citation: 58 Wash. 535,109 P. 369
• Parties: BOWES et ux. v. CITY OF ABERDEEN et al.
• Court: Washington Supreme Court

109 P. 369

58 Wash. 535

BOWES et ux. v. CITY OF ABERDEEN et al.

Supreme Court of Washington

May 31, 1910

Department 1. Appeal from Superior Court, Chehalis County; Ben Sheeks Judge.

Action by S. K. Bowes and wife against the City of Aberdeen and others. From a judgment of dismissal, plaintiffs appeal. Affirmed.

J. B. Bridges, for appellants.

A. M Wade and Theo. D. Bruener, for respondents.

CHADWICK J.

The city of Aberdeen, a rapidly growing city of approximately 20,000 inhabitants, is situated on the Chehalis river at or near its junction with Grays Harbor, an inlet of the sea. Bordering the stream there is a wide flat or tidal marsh intersected by sloughs, through which the tide and flood waters and storm drainage from the hills have been accustomed to flow. At certain times of the year and upon certain tides the water stands over the whole flat to a depth of from three to four feet, while at all times the ground water stands a few inches beneath the surface of the sloughs. The business part of the city, as well as a part of the residence district, is built upon these tide flats. The business of the city and the comfort and convenience of the citizens demand that the grade of the streets be raised so as to bring them above the level of the high tides. Up to this time it has been possible, as well as feasible, to make elevated plank streets or roadways and sidewalks, but the increasing price of lumber, its lack of durability, and other reasons make it necessary to improve the streets in some permanent manner. It is possible to do this in one of two ways; to grade or fill the streets and alleys up to the required level, or fill the whole district, including the lots and blocks. To accomplish the first plan would require the erection of banks of retaining walls along the street lines, with openings left thereunder for drainage. To carry out this plan would cost approximately 50 cents a cubic yard. The other plan, being the one adopted by the city council, could be accomplished by hydraulicking the mud and silt from the harbor or river channels, or dirt from the adjacent hills, and would cost approximately 18 cents per cubic yard. The answer of the city to the petition of the appellants recites the further condition as warranting the improvement in the manner contemplated: 'That the lands within the said improvement district have become and now are an important part of the city of Aberdeen, and are fast becoming of more importance as a part of the said city; that many houses, barns, outbuildings, and other structures have been built upon the private property within the said district, and many other like structures are being built thereon, and many more will be built thereon; that because of the low swampy condition of said lands, and because of the inability to drain the same and because of the stagnant waters standing thereupon, and because of the many dwellings, barns, stores, and other structures located upon said lands, the said lands have become and are greatly detrimental to the public health and to the public welfare of the persons residing within the said district, and the city of Aberdeen generally, and that said condition is an unsanitary one, and dangerous to the public health and welfare of the citizens of the said district and of all of the citizens of the said city of Aberdeen; * * * that to fill the said streets and alleys as aforesaid without filling the said private property would leave all of the said private property low, wet, and marshy ground, and would cause the same to be more unsanitary than the same now is without said streets and alleys being filled, and would cause the water to stand upon the said private lands throughout the year, even to a greater extent than the same now stands thereupon, and would cause the same to be very unsanitary and detrimental and dangerous to the public health and welfare of the said citizens; that it is necessary, for the purposes aforesaid, to fill the said streets and alleys and to fill the private property to the grade aforesaid; and that the public health and public welfare of the said citizens of the said district and of the said city of Aberdeen require that such filling be done; that the said public health and public welfare of the said citizens required the said grades to be re-established and raised because the old grade of the said streets and alleys was too low, and did not, in any manner, provide for the drainage of the said district, the said grade as formerly established being a level one throughout the said district, and that for sanitary reasons and in order to keep the water from standing upon the said streets and private property, and in order that the same might be drained, it was necessary that the said grade of the said streets and alleys be raised as described in the complaint herein; that the public health and public welfare required and requires the raising of the grade of the said streets and alleys aforesaid and the filling of the said streets and alleys as aforesaid and the filling of the said lots as described in the petition herein.'

While it is provided, in section 5 of the act of 1909 (chapter 147, p. 569), under which the city is probably proceeding, that the filling of unimproved and uncultivated lowlands of the character described in the answer and in the ordinance declaring the intention of the city, shall not be considered a taking or damaging within the constitutional meaning of these terms, the city in its answer disclaims any intention or purpose to condemn the right to fill the lots and blocks belonging to private owners. We are of the opinion that the constitutional question thus raised may be safely disregarded, for, if the city can fill the property of a private owner under the act of 1909 or the act of 1907 (Laws 1907, §§ 53-56, p. 657) in the manner contemplated, it must be done under the exercise of its police power, and not because the Legislature has undertaken to say what shall be, or rather what shall not be, a taking or damaging of property. This is a judicial question, and were we inclined to pursue it further we would not, as at present advised, feel bound by the declaration of the Legislature. The regularity of all antecedent proceedings on the part of the council is not challenged by plaintiffs, so that the case is squarely before the court upon the question whether, under the facts as we have outlined them, a city can, in the exercise of its police power, fill the property of a protesting landowner so as to make a present condition sanitary, or anticipate a condition which is reasonably certain to follow the ordinary growth of a thrifty city.

While the evidence is conflicting, in the sense that a witness testified that present conditions were not unsanitary, the weight of the evidence is overwhelmingly in favor of the city's contention. Mr. Benn, the mayor, who has been a resident of the city since the first house was erected, says the conditions are unsanitary, and attributes present and possible conditions to the natural growth of the city, and the stoppage of the natural ditches and drains resulting from ordinary use. The health officer of the city testifies that there has been a greater mortality, especially among children living upon or over the tidal marshes, than upon the hill districts, and attributes the fact to the pollution of the soil consequent upon human habitation without proper drainage. Mr. Ewart, the city engineer, whose description of the physical conditions is accepted by the petitioners, and whom we therefore conclude to be skilled in his profession says: 'Q. What effect does the levelness of this land have upon the drainage and sewerage? A. To put a sewer system on the level of this ground is impracticable. They are too flat. The sewer pipe would have to be laid on a gradual slope of the river, and it would make them above the level of the lots in the district proposed to be filled. Q. In the proposed fill, Mr. Ewart, are these lands to be leveled more on the back side? A. They will have an incline of six inches to the block from the Hill to the river; that is the least practical fall you can make on the streets. * * * Q. Do you consider, Mr. Ewart--you have heard the testimony as to the sanitary conditions in this district--do you consider that the land within this district or that this district as it stands is unsanitary? A. Very. Q. Will you give your reasons why? A. The presence of human beings tends to make it unsanitary. The offal from the table, from the animal excrement, is bound to accumulate more or less in this soggy ground, and makes it unsanitary. Q. Your idea then would be that the more people live in that district, the more unsanitary it would be? A. Yes, sir. Q. Do you consider this property was unsanitary in its original condition? A. It was by itself. Of course, if there was nobody there, no one would be likely to get sick. Q. To make as favorable illustration as you can, suppose there was no one living but one man in that district? A. Outside the dampness it would not be unsanitary. Q. Would the dampness be unsanitary? A. It is; yes. A great many people suffer from cold and on account of dampness. Q. You have never known of any plague or great amount of sickness on account of this condition, have you, in the city of Aberdeen or Hoquiam and that neighborhood? A. Yes. Q. You think that there is more sickness from the people living on the more level ground than on the high ground or hill district? A. This particular place has not been settled thick enough to cause that condition yet, but where it is more thickly settled, it is; yes. Q. Then your idea boiled down amounts to this: That in its original condition, when the tide came and went, and the sloughs were not...