City of Seattle v. Fender

• Decision Date: 10 March 1953
• Docket Number: No. 32255,32255
• Citation: 42 Wn.2d 213,254 P.2d 470
• Court: Washington Supreme Court
• Parties: CITY OF SEATTLE, v. FENDER et al.

Page 213

42 Wn.2d 213

254 P.2d 470

CITY OF SEATTLE, v. FENDER et al.

No. 32255.

Supreme Court of Washington, en Banc.

March 10, 1953.

Rehearing Denied April 14, 1953.

A. C. Van Soelen, Corp. Counsel, J. Ambler Newton, John A. Logan and G. Grant Wilcox, Seattle, for appellant.

Macbride, Matthews & Hanify, Thomas H. Macbride, Seattle, for respondents.

SCHWELLENBACH, Justice.

This is an appeal from a judgment of involuntary nonsuit, dismissing the cause of action of plaintiff with prejudice.

In 1939, and prior thereto, one Denis Murphy was the owner of a triangular piece of land in the city of Seattle, bounded on the north by Blanchard street, on the east by Western avenue, and on the west by Elliott avenue. The latter street extends northwesterly and southeasterly and connects with Western avenue at the apex of the triangle. A building of frame construction, consisting of apartments and stores, was, and still is, located on this property.

Prior to June 14, 1939, a condemnation action was instituted by the city for the purpose of extending and establishing Armory Way. The city, in the action, acquired a portion of the northwest corner of the triangle, on which was a part of the building. The judgment in favor of Murphy, in the sum of $11,660, recited, 'which sum includes the cost of readjusting or moving the improvement standing in whole or in part upon said land, to or upon the part of the land remaining, together with the depreciation in the market value of said improvement by reason of said readjustment or moving.' In addition, the sum of $2,500 was awarded as severance damage to the remaining portion of the property. September 27, 1943, Murphy receipted for $14,160 as payment on the judgment.

September 1, 1944 Murphy executed a real estate contract to sell his property to George E. Mitzel. The contract contained a description of the property, after which there was added:

'* * * except portion condemned by the City of Seattle for street purposes under King County Superior Court Cause No. 292884, records of said county; this sale includes all furniture and fixtures owned by seller and now located on said property.'

This contract was assigned by Mitzel to Mrs. Fender, September 19, 1944.

September 20, 1944 Murphy conveyed his property to Mrs. Fender by warranty deed. It described the property as follows:

'That portion of Lots Two (2), Three (3), Four (4), Six (6) and Seven (7), lying northeasterly of Elliott Avenue, Block Thirty-four (34), Plat of an Addition to the City of Seattle, as laid out by A. A. Denny (commonly known as A. A. Denny's 6th Addition to the City of Seattle), except portion condemned by the City of Seattle for street purposes under King County Superior Court Cause No. 292884, records of said county.'

Mrs. Fender occupied the entire building until she contracted to sell to the Cramlets June 1, 1949. About January 1, 1949 she was notified to pay ground rent of $25 per month to the city. She paid to July 1, 1949 and Cramlet continued paying until March 31, 1950. March 27, 1950 the city notified Cramlet to remove that portion of the building standing on the right of way on or before May 1, 1950. Nothing was done and this action was commenced July 11, 1951.

In its complaint the city alleged the prior condemnation proceedings; the satisfaction of judgment by the predecessors in interest of defendants; that the removal and readjustment was to be done at the sole cost and expense of the respondents in the condemnation proceedings; that defendants, although notified, have failed and refused to remove and readjust the building; that an adjacent highway, to-wit, the Alaskan Way viaduct project, is now under construction, and the failure to remove and readjust the building by defendants constitutes a present and continuing nuisance. (Note: The Armory Way project, for which the condemnation proceedings were instituted, was never started and apparently has been abandoned.) The prayer asked 'that a mandatory injunction be issued, permanently enjoining and restraining the defendants and each of them from maintaining any structure upon the property heretofore acquired by the plaintiff for highway purposes and directing them to remove any structure from that portion of the property condemned by the plaintiff.'

It should be noted that the city never attempted to require Denis Murphy to live up to his obligation, and that, at the time of trial, as was so aptly stated by the trial court, he had gone 'over the hill and far away.'

The trial court rejected a finding proposed by the city that the defendant Fender, by the deed from Murphy, acquired from him all right, title and interest in and to the land and the improvements and appurtenances thereon, and particularly the entire apartment and store building, including the portion thereof standing on the land acquired by the city for street purposes. The court did find that from September 19, 1944, until June 1, 1949, Mrs. Fenderoccupied part or all of that portion of the building situated on the land acquired by the city. The court also found that no evidence was introduced of any obligations undertaken by the defendants or any of them to perform the duties of Denis Murphy with respect to removing structures from the land acquired by the city.

Appellant assigns error (1) in finding that there was no evidence of any 'obligation' to respondent Anna Fender with respect to removing a portion of the building from the land acquired by the city for street purposes; (2) in concluding that there was no obligation of the part of respondents to make such removal and that they were entitled to an involuntary nonsuit; (3) in entering judgment dismissing the action.

RCW 8.12.140 (a portion of the law of eminent domain by cities) provides:

'If there is a building standing, in whole or in part, upon any land to be taken, the jury shall add to their finding of the value of the land taken the damages to the building. If the entire building is taken, or if the building is damaged, so that it cannot be readjusted to the premises then the measure of damages shall be the fair market value of the building. If part of the building is taken or damaged and the building can be readjusted or replaced on the part of the land remaining, then the measure of damages shall be the cost of readjusting or moving the building, or the part thereof left, together with the depreciation in the market value of the building by reason of such readjustment or moving.'

In re Seattle, 26 Wash. 602, 67 P. 250, 251, was a case in which the city of Seattle instituted an action to ascertain damages to abutting property owners on a street by work of regranding. The award in favor of the owners of the lot in question was $500. After the work of regarding had commenced, but before the judgment against the city was entered, a mortgagee foreclosed a mortgage on the property in question. After the return of the verdict in the action instituted by the city, the mortgagee, who was the purchaser at the foreclosure sale, filed a petition praying for the entry of a judgment awarding him the amount assessed as damages. This court held:

'* * * It has been uniformly held that the right to damages for an injury to property is a personal right belonging to the owners of the property, which will not pass by deed unless expressly conveyed.'

It would appear that if the right to damages awarded to the owner of property will not pass by deed unless expressly conveyed, an obligation of the owner as a consideration for a part of the award would not pass by deed unless provided therein.

In Kakeldy v. Columbia & P. S. R. Co., 37 Wash. 675, 80 P. 205, 206, the city of Seattle, by ordinance, vacated a street. Defendant constructed a railroad thereon. Thereafter the owner of a lot abutting thereon sold to plaintiff. Plaintiff commenced an action for an injunction and for damages because the railroad company was obstructing plaintiff's access to his premises. We held:

'* * * The deeds under which he claims title are in evidence. They contain no transfer to him of any right of action which his grantor may have had against the railroad company, if he had any such. * * * The right of action for the damages in such a case belongs to him who was the landowner at the time the railroad company took possession and constructed its road, and his grantee takes the land subject to the burden of the railroad. Such damages, being in the nature of a compensation for trespass, constitute a personal claim in favor of the owner at the time the injury occurred, and they do not run with the land.'

Appellant contends that Mrs. Fender, as grantee, took her land subject to the burden of moving or readjusting the portion of the building on the land acquired by the city. The damages awarded to Murphy, together with the obligation of removal, were personal to him at the time the injury occurred and did not run with the land.

'* * * a grantee does not become personally liable for the obligations of his grantor to a third person, even where the same is a lien or a charge upon the land conveyed, unless the obligation arises under a coverant running with the land.

* * * A covenant is said to run with the land when it touches or concerns the land granted or demised. Generally speaking, a covenant touches or concerns the land if it is such as to benefit the...