Brazell v. City of Seattle

• Decision Date: 05 October 1909
• Citation: 55 Wash. 180,104 P. 155
• Parties: BRAZELL et al. v. CITY OF SEATTLE et al.
• Court: Washington Supreme Court

104 P. 155

55 Wash. 180

BRAZELL et al. v. CITY OF SEATTLE et al.

Supreme Court of Washington, En Banc.

October 5, 1909

Appeal from Superior Court, King County; Geo. E. Morris, Judge.

Action by Thomas F. Brazell and others against the City of Seattle and others. Decree of dismissal, and complainants appeal. Reversed, with instructions.

Wright & Kelleher and Wright & Kent, for appellants.

Scott Calhoun, Howard A. Hanson, and Oliver C. McGilvra, for respondents.

CROW, J.

This action was commenced by Thomas F. Brazell and Laura J Brazell, his wife, against the city of Seattle, D. Lambert and A. C. Goerig, to annul, declare invalid, and enjoin certain proceedings taken and threatened by the city for the vacation of certain streets, the platting of other streets in lieu thereof, and the grading and improving of streets shown by the replat. The defendants interposed general and special demurrers, which were sustained upon the sole ground that the amended complaint did not state a cause of action. The plaintiffs declined to plead further, whereupon the action was dismissed, and they have appealed.

The question presented by this appeal is the sufficiency of the amended complaint. Its allegations in substance are that the appellants and the respondent Lambert are respectively owners of certain lots in the city of Seattle abutting upon opposite sides of East Aloha street, which runs east and west between Thirty-Ninth avenue north and Fortieth avenue north appellants being located on the north side of East Aloha street; that in August, 1903, the appellants Lambert and many others owning lots in the same locality conceived a scheme for vacating numerous streets and alleys therein, and dedicating others in lieu thereof; that in furtherance thereof they prepared a proposed replat of the locality including the portion of East Aloha street above mentioned, together with a petition to the city council in favor of the replat, which petition, at the instance of the respondent Lambert, and others associated with him, was signed by the appellants and by three-fourths in number and area of the owners of all the property lying within the district; that the petition was filed with the city, and notice given that the same would be heard on October 19, 1903; that the hearing was adjourned until November 30, 1903, on which latter date no adjournment was made; that on December 7, 1903, the council again considered the petition and made a further adjournment until February 14, 1904, on which latter date, it without notice adopted the report of its street committee in favor of granting the prayer of the petition; that no further action was taken until May 14, 1906, when the city council without further notice passed Ordinance No. 13,773, which purported to carry out the terms of the petition and adopted the replat, subject to the change that, instead of vacating all of East Aloha street between the property of the appellants and the respondent Lambert as prayed, it vacated the south half thereof which abutted upon the property of Lambert, thus leaving the street open upon appellants' side, but closing it upon the opposite side; that the change was fraudulently procured by Lambert for the purpose of injuring appellants and benefiting himself, as he would thereby acquire title to the vacated portion of the street and still retain for his convenience an open street on the opposite side adjoining the appellants' lots; that the respondent Lambert, claiming title to the vacated portion of East Aloha street, is about to take possession thereof to appellants' special injury and damage; that appellants had no knowledge of the proposed passage of the ordinance adopting the replat, or the variance of its terms from the replat proposed by the petition, until November, 1906; that the ordinance, in addition to providing for the vacation of certain streets, also provided for the dedication of others in lieu thereof in the district and locality affected by the street vacations; that in June, 1908, the city council passed Ordinance No. 18,665, providing for the improvement of the replatted system of streets, and providing that the vacated portion of East Aloha street, adjacent to the premises of respondent Lambert, be not graded; that pursuant to such ordinance the city and the respondent Goerig, as contractor, are about to regrade and improve the replatted streets, including the nonvacated portion of East Aloha street; that the city is about to assess the real property in the district in question, including appellants' property, to pay the expenses of such improvements; that the pretended Ordinance No. 13,773 and the contract of the city with Goerig are each null and void; that the assessments will be null and void and a cloud upon appellants' title; that, by reason of such illegal vacation, replat, improvement, and threatened assessment, the appellants will suffer irreparable damages unless the same are enjoined; and that appellants' injury will be special and peculiar to them. An injunction was demanded permanently restraining the respondents from proceeding with the improvements under Ordinance 18,665, from levying any assessments therefor, from treating East Aloha street as vacated, and particularly restraining the respondent Lambert from taking possession of any portion of East Aloha street or claiming the same as his private property. The appellants contend (1) that the city council, after a petition for vacation is filed, cannot act upon the same without notice and independently of the date fixed for the hearing; (2) that it cannot vacate streets otherwise than in accordance with the terms of the petition; and (3) that, in any event, its action can be enjoined as fraudulent. The respondents contend that three questions are involved in this appeal, as follows: (1) Have appellants such an interest in the replat proceedings that they can in a collateral attack secure the annulment of the entire proceedings except as to the portion of East Aloha street abutting upon their property? (2) Can appellants in this proceeding annul the vacation of any portion of East Aloha street vacated under Ordinance 13,773? (3) Will an injunction lie to restrain the city from improving the public portion of East Aloha street and assessing the cost of such improvement against private property specially benefited thereby?

The amended complaint affirmatively shows that proper notice fixing a time for the hearing of the petition was given; that several continuances were entered, but that on one occasion no continuance was entered, although the council considered the petition at its next meeting without further service. The council obtained jurisdiction of the petition by virtue of the original notice, but the appellants now contend that having once failed to order any continuance, it lost jurisdiction so completely as to render its subsequent orders void. This contention cannot be sustained. Mr. Elliott, in section 293 of the second edition of his...