City of Seattle v. McElwain

• Decision Date: 12 September 1913
• Citation: 134 P. 1089,75 Wash. 375
• Court: Washington Supreme Court
• Parties: CITY OF SEATTLE v. McELWAIN.

134 P. 1089

75 Wash. 375

CITY OF SEATTLE v. McELWAIN.

Supreme Court of Washington

September 12, 1913

Department 1. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Condemnation proceedings by the City of Seattle to acquire land for widening a street. From a judgment awarding the city the land upon payment of the compensation fixed by the jury, W. P McElwain, one of the owners, appeals. Affirmed.

Byers &amp Byers, of Seattle, for appellant.

Jas. E Bradford, C. B. White, and Melvin S. Good, all of Seattle, for respondent.

PARKER, J.

This is a condemnation proceeding brought by the city of Seattle to acquire a strip of land for the purpose of widening Fifteenth avenue in that city. A trial before the court and a jury resulted in verdicts, awarding to the owners of the land compensation and judgment, awarding to the city the land upon payment of the sums so awarded to the owners. W. P. McElwain one of the owners, has appealed therefrom to this court.

The facts of the case, so far as necessary for us to notice them in discussing the contentions made in behalf of appellant, are in substance as follows: Appellant is the owner of the north 272 feet of a square tract of land, measuring approximately 320 feet on each side thereof, which tract fronts easterly on Fifteenth avenue; Bertha Sandall being the owner of the remaining southerly portion of the tract. The dedicated portion of Fifteenth avenue along the easterly boundary of the tract is only 30 feet wide. In September, 1911, for the purpose of widening Fifteenth avenue, the city council passed an ordinance providing for the acquisition of the easterly 35 feet of this tract by eminent domain proceedings, and for payment of the entire expenses of such proceedings, including compensation to be awarded to the owners, by special assessment upon the property benefited lying within the N.E. 1/4 of the S.E. 1/4 of the S.E. 1/4 of the N.E. 1/4 of section 5, township 25 N., range 4 E. W. M., which is the same tract of land, approximately 320 feet square, owned by appellant and Bertha Sandall. Thereafter in May, 1912, this proceeding was accordingly instituted against appellant and Bertha Sandall. By the verdict rendered in favor of appellant upon the trial, the jury, after awarding him compensation for the land taken, found that the remainder of his land would not be damaged by reason of the taking of the 35-foot strip therefrom. During the trial it appeared that the city had actually taken possession of the 35-foot strip and graded it as a part of Fifteenth avenue prior to the trial. It also appeared during the trial that appellant had commenced an action, which was then pending in the superior court for King county, to recover damages from the city on account of the grading of the 35-foot strip as a portion of Fifteenth avenue. We are not informed as to the exact nature of the claim for damages made in that action, though we infer from remarks of counsel that it was for damages claimed to have resulted to appellant's land from the establishment of the grade as well as for the value of the land so taken possession of by the city. The judge of the trial court ignored the fact of the prior taking possession of the 35-foot strip and the arading of the same by the city, and by his rulings and instructions, in effect, withheld from the consideration of the jury such facts, submitting to the jury only the usual questions of the value of appellant's land taken and damage to the remainder by reason of the taking, as though the city did not have possession and had not graded Fifteenth avenue. These rulings were made upon objection interposed by counsel for the city to offers of proof made by counsel for appellant, upon the ground that such facts were foreign to the issues involved in this proceeding.

The principle contention made by counsel for appellant is, in substance, that the ordinance providing for the institution of eminent domain proceedings is void, and does not constitute legal authorization for such proceedings, because the ordinance purports to authorize the taking of land for public use and the payment of the entire expense thereof by special assessment upon the land from which the land proposed to be acquired will be taken. The first thought which would naturally arise in the mind of one having this contention presented to him is that it suggests a matter of controversy to be considered only at the hearing upon the making and confirmation of the proposed special assessment. Counsel for appellant, apparently anticipating this, argue that, since the assessment district is by the terms of the ordinance limited to the land belonging to the appellant and Bertha Sandall, from which land the land proposed to be acquired is to be taken, the assessment cannot be lawfully so made, and that, since no other provision is made by the city for payment of the expense of the condemnation, it is therefore unauthorized. This is an ingenious argument, and if the facts in this record warranted the conclusion, as a matter of law, that under no circumstances could the remaining land of appellant and Bertha Sandall be benefited by the proposed widening of Fifteenth avenue to the extent of the entire expense of the condemnation, and thus prevent assessing the whole amount thereof against the remaining land, it would have much force, though even such conclusion would not negative the power of the city to voluntarily pay any deficiency in such assessment necessary to pay the entire expense, nor would we be required to presume that the city would not voluntarily pay such deficiency rather than abandon the acquisition of the land for the widening of Fifteenth avenue. We are of the opinion, however, that it cannot be so determined from the facts here disclosed, and that that question can only be determined at the hearing before the court upon the return of the assessment to be made by the...