City of Spokane v. Fonnell

• Decision Date: 15 September 1913
• Court: Washington Supreme Court
• Parties: CITY OF SPOKANE v. FONNELL et al.

135 P. 211

75 Wash. 417

CITY OF SPOKANE v. FONNELL et al.

Supreme Court of Washington

September 15, 1913

Department 2. Appeal from Superior Court, Spokane County; J. Stanley Webster, Judge.

Proceeding by the City of Spokane against Ida V. Fonnell and others. From an order setting aside the assessment roll for a street opening, the city appeals. Affirmed.

H. M. Stephens and Bruce Blake, both of Spokane for appellant.

Wm. S Lewis, E. W. Hand, Leander H. Prather, and Geo. F. Cowan Jr., all of Spokane, for respondents.

ELLIS J.

This is an appeal from an order of the superior court of Spokane county setting aside an assessment roll made by the board of eminent domain commissioners to pay the cost of opening Denver street between Fifth and Celesta avenues. It is the third roll returned; the two previous rolls having been set aside and new assessments ordered by the court.

Liberty Park is a public park located in the southeast part of the city of Spokane. It is bounded by Third avenue on the north the Spokane & Inland right of way on the east, Arthur street on the west, and Fifth avenue on the south. Prior to the condemnation there was no street giving access to the park from the south between Arthur and Perry streets, a distance of four blocks. Perry street, at its junction with Fifth avenue, is a basaltic cliff impracticable for street uses. Under these conditions Liberty Park was accessible to persons living to the southeast and east only through Fifth avenue by way of Arthur street at the extreme west of the park. Between Celesta avenue and Fifth avenue is a strip of land through which Denver street was extended. It is to pay for the condemnation of an extension of Denver street through this strip from Celesta avenue to Fifth avenue that the assessment roll was made. Denver street is a short street, extending from Newark avenue on the south to Celesta avenue on the north, a distance of about 300 feet. The south end of the street is nearly level; the north end slopes abruptly down to Celesta avenue at a considerable grade. The assessment district is bounded on the north by Celesta avenue, and on the south by Sixteenth avenue, a distance of something over half a mile, with varying lines on the east and west sides. The west line is approximately at a distance half way between Denver street and Arthur street. The east line throughout most of its distance is at Helena street, two blocks east of Denver street. We reproduce a plat from the respondents' brief, which we find to be approximately correct. The heavy lines show the boundaries of the district.

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The limits of the district, as shown by the testimony of the commissioners, were fixed upon the theory that the property included therein was within walking distance of the park, and that the inhabitants of the district were placed in a more accessible situation for the enjoyment of the park. The contestants are the owners of various properties lying south of the southerly end of Denver street. The parties may be designated as appellant and respondents.

There is one general objection going apparently to the whole assessment, except as against the property abutting on Denver street itself. It is that the matter of access to the park is not such a special benefit as justifies any assessment. This objection seems to have largely influenced the court in setting aside the roll. We think, however, that such a benefit, like any other circumstance peculiarly enhancing the use, convenience, or enjoyment of property, or in any manner making its environment more desirable, is a benefit sufficient to sustain a special assessment. In re Condemnation Proceedings by City of Seattle, 46 Wash. 63, 89 P. 156; In re Harvard Ave. North, Seattle, 47 Wash. 535, 92 P. 410; Spokane v. Curtiss, 66 Wash. 555, 120 P. 70.

The other objections to the roll go to the limits of the district, the inclusion therein of property which it is claimed was not benefited, the exclusion therefrom of property which it is claimed was in any event equally benefited with the property included, and the claim that the assessments were arbitrary. We have frequently held that the action of the commissioners in fixing the limits of the district and in determining what property is in fact benefited in apportioning the cost of improvement, in the absence of fraud or action clearly arbitrary, will not be disturbed by the court. The commissioners being appointed for the very purpose of doing these things, their action is entitled to the same presumptions which attend official action in other cases, and is conclusive in the absence of mistake, fraud, or arbitrary discrimination amounting to an abuse of discretion. In re Westlake Avenue, 40 Wash. 144, 82 P. 279; In re Condemnation Proceedings by City of Seattle, 46 Wash. 63, 89 P. 156; In re Harvard Ave. North, 47 Wash. 535, 92 P. 410; Seattle v. Meteor Land Co., 50 Wash. 402, 97 P. 444; In re Pine St., Seattle, 57 Wash. 178, 106 P. 755; In re Jackson St., Seattle, 62 Wash. 432, 113 P. 1112; In re Fifth Ave., etc., et al., Seattle, 66 Wash. 327, 119 P. 852; Spokane v. Curtiss, 66 Wash. 555, 120 P. 70.

With this general principle in view, we will examine the specific objections.

1. It is first claimed that the commissioners arbitrarily refused to assess any part of the cost of the improvement against the city of Spokane. It is argued that the park being made more accessible by the extension of Denver street was a special benefit to the city of Spokane and to its inhabitants generally. This is no more than the assertion of a general benefit such as would result from any improvement. When the whole of the voluminous evidence is fairly sifted, the only statement of a tangible benefit to the city as such is found, as stated by one of the witnesses, in the increase in value of its taxable property. This benefit is a mere reflex on the whole corporate body of special benefits to property owned by certain of its citizens. It is obvious that the improvement here in question had no such independent value to the city as a corporate entity as to make it a special public benefit. Spokane v. Curtiss, supra.

We find nothing in this objection which would warrant the court's action in setting aside the assessment. There is no evidence of arbitrary action amounting to an abuse of discretion on the part of the commissioners in refusing to assess any of the cost of the improvement to the general fund. In the absence of such arbitrary action, their findings on this question are conclusive. In re Fifth Ave., Seattle, supra; Powell v. Walla Walla, 64 Wash. 582, 117 P. 389; Northern Pacific Ry. Co. v. Seattle, 46 Wash. 674, 91 P. 244, 9 L. R. A. (N. S.) 1193, 123 Am. St. Rep. 926, 13 Ann. Cas. 742.

2. It is next claimed that lots abutting on Denver street were assessed only $25 a lot,...