Brown v. City of Seattle
| Citation | 5 Wash. 35,31 P. 313 |
| Parties | BROWN v. CITY OF SEATTLE ET AL. [1] |
| Decision Date | 11 October 1892 |
| Court | United States State Supreme Court of Washington |
Appeal from superior court, King county; I. J. LICHTENBERG, Judge.
Action by Jeanie McHugh Brown to enjoin the city of Seattle and E T. Smart from grading a street. Injunction granted, and defendants appeal. Affirmed.
S H. Piles and Chas. F. Munday, for appellants.
Thomas R. Shepard, for respondent.
This was an action to enjoin the city of Seattle from grading down that part of Jefferson street, in that city, lying between Eighth street and the alley, between and parallel with Seventh and Eighth streets, until just compensation to the plaintiff for the injury to result from such grading to her abutting real property should have been first ascertained and made or paid into court for her benefit. E T. Smart, with whom the city had made a contract to do the grading in question, was joined as a defendant. The court below, after trial, found in respondent's favor, and granted the injunction sought. The respondent's property consists of three lots, each 60x120 feet in size, Nos. 2, 3, 4, block 59, Terry's first addition to Seattle. Lots 2 and 3 fronted on Eighth street, and lot 2 fronts on Jefferson street. Lot 4 fronts on Seventh street, 60 feet from Jefferson. Each of the lots has the alley in its rear. The streets named are each 66 feet in width, and the alley is 16 feet in width. In 1869 the plat of the addition was filed for record, and the streets and alleys were thereby dedicated to the public use. The respondent derives title to her lots from the maker of the plat, from whom she bought them in 1874, while they were unimproved, with the exception that there was a small house on lot 4. In 1863 the city, by ordinance No. 484, established the grade elevation of Jefferson street at heights above the city datum line as follows: At the intersection with Sixth street, 175 1/2 feet; at Seventh street, 261 feet; at Eighth street, 304 feet. For the cross streets the ordinance required that there should be a uniform and continuous rate of grade between each two adjacent street intersections, provided that no grade line was established between Sixth and Seventh streets. In 1887 the grade line at Seventh street was changed to 265 feet. In 1888 and 1889 respondent erected, on her lots 2 and 3, three cottages fronting on Eighth street, to which there is access from Eighth street at their front, and from Jefferson street, by way of the alley, at their rear. She also erected a double house fronting on Jefferson street, between Eighth street and the alley, its front standing within 6 feet of Jefferson street, and its west side within 4 feet of the alley; and also a house facing on the alley, occupying a part of the rear end of lot 3. For these houses she had been receiving a total rental of $237 per month. Seventh street was graded down in 1887-88, so that the access to the house located on lot 4 is by an ascent of 32 steps. The alley has heretofore been used as the most convenient means of access to all the property for delivering heavy supplies. On April 14, 1890, the common council, acting under section 8 of the city charter of 1886, (St. 1885-86, p. 241,) without petition from property owners, ordered that Jefferson street be graded from Third street to Broadway, (which is beyond Eighth street,) by unanimous vote. The natural level of Jefferson street at Seventh street is 267 6-10 feet; at the alley, 292 6-100 feet; and at Eighth street, 312 38-100 feet. The grade proposed would leave a street with an ascending grade from Seventh to Eighth street of about 15 25-100 per cent., which is not greatly different from the general ascent of the natural surface; but, owing to the elevations at which Seventh and Eighth streets have been fixed, it will become necessary, in order to make the new grade continuous and uniform between the two streets, to excavate the width of the street to a depth which at Eighth street would be, according to the established grade, 8 38-100 feet, and at the alley something like 17 feet. This arrangement would, of course, leave the respondent's lots just that much above the street when the improvement is completed, and the alley would be no longer available for any of its natural purposes until further improvements had been made upon it. The city, however, claims that under its modified proposition the cut at Eighth street will be reduced to 2 38-100 feet, and at the alley to something over 14 feet. Terrace street, on the opposite side of the block from Jefferson street, had already been graded down, so that the alley at that end terminated in a drop of 5 or 6 feet. From Third street to Seventh street, the change in elevation is just 200 feet, being within a fraction of 20 per cent. A large proportion of this elevation, however, occurs between Sixth and Seventh streets, where the difference in elevation is 85 5-10 feet, or more than 33 per cent. It is conceded that this fact makes it impracticable to use Jefferson street between Sixth and Seventh for any ordinary street purposes excepting foot passage. It is also conceded that between Seventh and Eighth streets Jefferson street was impassable in its natural condition for teams, excepting a portion of the distance westward from Eighth street. It also appears that the proposed grade between Seventh and Eighth streets will be no steeper than that of several other streets which are traveled by teams in the city of Seattle.
Evidence was taken by both parties upon the question whether or not the plaintiff's property would be injured by the proposed cutting down of the street. The result of that evidence, we think, shows a preponderance that she will be injured beyond any benefits which she will receive by the grading of the street, and that her property will be less valuable when the grade is completed than when it is begun. But the main question is, admitting the fact of injury, would the respondent be entitled to compensation from the city? Previous to the adoption of the constitution, she would have been without remedy, excepting for such injury as might have occurred to her land alone, arising from the withdrawal of support, and its consequent actual falling in, or from the negligence of the city in doing the work. Parke v. City of Seattle, 31 P. 310; Gilmore v. Driscoll, 122 Mass. 199; Smith v. Washington, 20 How. 135. But the constitution of this state (article 1, § 16) provides that no private property shall be taken or damaged for public or private use without just compensation having been first made or paid into court for the owner, and it is upon this prohibition that the respondent bases her right to an injunction. The earlier constitutions of the several states in the Union contained, with but few exceptions, a provision that private property should not be taken for public use without just compensation. The constitution of the United States contains substantially the same provision which was applicable to the territory. Under these provisions, however, owing to the interpretation put upon the word "taken" by the courts of the several states, with the exception of the courts of Ohio, great and manifest injury was constantly done by the states, counties, and cities to the private citizen without any legal means of reimbursement. The theory was that wherever the state, through its legislative acts, authorized any of its agents to make public improvements, so long as these agents carried on their work within the scope of their authority, and without negligence, they were liable to no one, whatever damage might accrue. A citizen was thus left without protection in all that large class of cases where, through some act done for the public benefit, or for a use public or quasi public, although no part of his tangible property was physically taken, the use or value of his property was palpably impaired, or was stripped of incidents comprised within the conception of complete property rights which brought to those rights quite as much value as the mere possession of the property.
In 1870 the state of Illinois, in revising its constitution, inserted therein the provisions which we have quoted from our own. Its action in that matter has since been followed by West Virginia, Alabama, Missouri, Nebraska, Arkansas, Texas Georgia, California, Colorado, Kentucky, Montana, and the Dakotas. Some of the constitutions mentioned differ slightly from our own in their phraseology, but their substance is exactly the same, with the exception that in a few cases the damage is not required to be first paid. Under these constitutional provisions, many such cas...
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