City of Seattle v. P. B. Inv. Co., Inc.

• Decision Date: 15 July 1974
• Docket Number: No. 2655--I,2655--I
• Citation: 11 Wn.App. 653,524 P.2d 419
• Court: Washington Court of Appeals
• Parties: CITY OF SEATTLE, Respondent, v. P.B. INVESTMENT COMPANY, INC., Appellant, John I. Haas Import Company, Inc. and Winters & Boden Office Furniture, Inc., Defendants.

Page 653

11 Wn.App. 653

524 P.2d 419

CITY OF SEATTLE, Respondent, v. P.B. INVESTMENT COMPANY, INC., Appellant John I. Haas Import Company, Inc. and Winters & Boden Office Furniture, Inc., Defendants.

No. 2655--I.

Court of Appeals of Washington, Division 1.

July 15, 1974.

Guttormsen, Scholfield & Stafford, Harvey S. Poll, Seattle, for appellant.

John P. Harris, Corp. Counsel, Jorgen G. Bader, Asst. Corp. Counsel, Seattle, for respondent.

SWANSON, Chief Judge.

Does a first-class city have the authority to settle a private claim against it by granting the claimant the right to use a portion of a public street for a certain length of time? Assuming arguendo that such an authority does exist, may the city subsequently summarily order the private use of the street to cease when such use conflicts with the public need to make full use of the street notwithstanding the fact that the term of private use originally granted has not yet expired? These are the primary questions presented by this appeal.

The undisputed facts necessary to an understanding of this opinion are as follows: In 1920, the predecessor in interest of P.B. Investment Co., Inc. ('P.B. Investment'), Pacific Coast Biscuit Co., settled a $21,000 claim against the City of Seattle ('City') for $10,000 and a grant to the claimant of the use of the south 25 feet of South Connecticut Street measured by the life of what is now P.B. Investment's existing brick building situated upon the abutting real property. Acting pursuant to the settlement, the City enacted ordinance No. 41622 which provides in part:

That the Pacific Coast Biscuit Company be, and it hereby is, granted the use of the south 25 feet of Connecticut Street abutting upon the east 210 feet of Lot 22, in Block 281, of Seattle Tidelands, for a period of years coincident with the life of the existing brick building situated upon the above described abutting real property, or until circumstances shall arise which necessitate the reconstruction of said existing brick building, in which event, the use herein granted shall cease and determine, the portion of Connecticut Street hereinabove described shall be cleared of all structures by said company, and the use of said Connecticut Street to its full width shall revert to the City of Seattle.

Thereafter, two 1-story buildings, each about 25 feet wide and 100 feet long, were erected on the portion of South Connecticut Street described in the ordinance, between Fifth and Sixth Avenues. In 1966, P.B. Investment acquired the property, and in the period since 1920 public use of South Connecticut Street generally has been limited to local traffic because the street dead-ended at a point where it was crossed by railroad tracks.

In May, 1971, the King County Council decided to undertake construction of a domed stadium in the vicinity of South Connecticut Street, approximately one-quarter mile from the property owned by P.B. Investment here in question. Subsequently, the City, in anticipation of the great amount of vehicular traffic to be generated by the stadium, prepared to improve and pave South Connecticut Street to its full width and extend it across the railroad tracks at grade. On February 7, 1973, the City's board of public works directed P.B. Investment to discontinue use of South Connecticut Street and to remove the two 1-story structures which obstructed full use of the street. When P.B. Investment failed to take any action, the City brought suit against P.B. Investment and its tenants, John I. Haas Import Co., and Winters & Boden Office Furniture, Inc., seeking a mandatory injunction requiring the defendants to vacate South Connecticut Street on the basis that the permission granted to use the street had expired by the terms of the 1920 ordinance No. 41622. On October 29, 1973, the City moved for summary judgment on the ground that it had no power to grant private use of the street by ordinance No. 41622 and therefore the ordinance was void and of no effect. On October 30, 1973, P.B. Investment also moved for summary judgment contending that the 1920 ordinance created a property right which the City could not take except through a condemnation proceeding and payment of just compensation.

On November 19, 1973, the trial court denied P.B. Investment's motion for summary judgment, granted the City's motion for summary judgment and ordered the defendants P.B. Investment and its tenants to vacate South Connecticut Street on the ground that

(I) the City has no power to permit a private obstruction of a street right-of-way needed for public travel for an unreasonable period of time; (II) the City cannot be estopped by Ordinance 41622 from ordering removal of the obstruction when the public interest requires unimpeded passage; . . .

Only P.B. Investment appeals.

At the outset, appellant argues that the grant of the right to use South Connecticut Street which is contained in the 1920 ordinance is a property right which has not terminated by the terms of the ordinance because the life of such use is measured by the life of the existing brick building located on the abutting property. Appellant contends that question of the value of such a property right is a question of material fact, and therefore the trial court was in error when it resolved this controversy by summary judgment. Although we might agree with appellant's contention in this regard, it is apparent that the trial court's order does not rest upon such a determination of material fact, but rather is founded on the proposition that summary judgment in favor of the City is the proper remedy as a matter of law because the ordinance in question was illegal and void ab initio for the reason that the City is without power to grant such private use of a public street for an unreasonable length of time. Thus, for purposes of this appeal, we need only determine the validity of that proposition as relied upon by the trial court.

To summarize the primary positions of the parties, the appellant P.B. Investment argues that the City properly exercised its power to grant a private use of a public street in 1920 when it enacted ordinance No. 41622, and therefore the City must now be estopped to deny the validity of its own ordinance which is still in effect. Accordingly, P.B. Investment concludes that the trial court erred in granting summary judgment in favor of the City rather than in favor of P.B. Investment and that this cause should be reversed, leaving the City free to pursue its remedy through a condemnation proceeding. The City contends that it has no power to permit a private use to obstruct street area needed for public travel and therefore any right granted to P.B. Investment through the operation of ordinance No. 41622 is subordinate to the public right to use the street for travel and may be effective only until such time that the public need requires full use of the street. The City concludes that it may not be estopped by its ordinance from protecting the public travel easement and that it would amount to a subversion of the public interest to force the City to redeem the public right to travel by eminent domain.

We turn to an examination of the applicable principles underlying the arguments of the parties in order to resolve the instant controversy. In Burmeister v. Howard, 1 Wash.Terr. 207, 211 (1867), the court announced the rule of law which has been followed ever since and which underlies any discussion of the relative interests of an abutting private property owner and of the public in a city street:

(W)hen an easement is taken as a public highway, the soil and freehold remain in the owner of the land encumbered only with the right of passage in the public; and upon a discontinuance of the highway, the soil and freehold revert to the owner, and in the case of streets and alleys, the proprietors of adjacent lots own the soil to the middle of the street, subject only to this right of passage in the public; and upon a discontinuance of such street or alley, the adjacent owners of lots on each side take the soil to the middle of the street.

Accord, Rainier Avenue Corp. v. City of Seattle, 80 Wash.2d 362, 494 P.2d 996 (1972); Finch v. Matthews, 74 Wash.2d 161, 443 P.2d 833 (1968).

In State ex rel. York v. Board of County Comm'rs, 28 Wash.2d 891, 898, 184 P.2d 577, 581 (1947), the court stated with reference to the public street easement:

But whatever the nature of the interest may be, it is held in trust for the public, and the primary purpose for which highways and streets are established and maintained is 'for the convenience of public travel.' (Citations omitted.)

In this context, however, the court in York also pointed out that there are numerous other purposes for which the public ways may be used in addition to the primary purposes of public travel. Such 'secondary uses,' which are subordinate to and permissible only when not inconsistent with the primary purpose of public travel, include those related to the installation of water mains, gas pipes, and telephone and other utility lines. Addressing itself to the validity of such secondary uses, the York court stated at 906, 184 P.2d at 586:

(I)f a use is sanctioned by appropriate public authorities, and 'in no manner whatever impair(s) the right of free passage and repassage,' is not 'injurious to the adjoining property,' and is 'either directly or indirectly advantageous' to the public, then it is lawful.

See generally, 10 E. McQuillin, Municipal Corporations, § 30.73 (3d ed. 1966).

In the case at bar, the City directs our attention to the following language in Baxter-Wyckoff Co. v. City of Seattle, 67 Wash.2d 555, 561, 408 P.2d 1012, 1016 (1965):

When a municipality does permit a private individual to construct permanent buildings in the street and have exclusive possession of the street surface for a private business use, such permit is so unusual, and beyond the ordinary authority and power of a...