City of Spokane v. Ladies' Benev. Society

• Decision Date: 08 January 1915
• Docket Number: 12046.
• Citation: 83 Wash. 382,145 P. 443
• Court: Washington Supreme Court
• Parties: CITY OF SPOKANE v. LADIES' BENEV. SOCIETY et al.

145 P. 443

83 Wash. 382

CITY OF SPOKANE v. LADIES' BENEV. SOCIETY et al.

No. 12046.

Supreme Court of Washington

January 8, 1915

Department 1. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Condemnation proceeding by the City of Spokane against the Ladies' Benevolent Society and others. From a judgment assessing damages the plaintiff appeals. Reversed and remanded, with instructions.

H. M Stephens, Wm. E. Richardson, Ernest E. Sargeant, and Dale D Drain, all of Spokane, for appellant.

Skuse &amp Morrill, of Spokane, for respondents.

CHADWICK J.

The grade of Calispel street in the city of Spokane was established by ordinance in the year 1889. The streets were not brought to a physical grade, although some property has been improved with reference to what we will call the paper grade. In 1910 the city, intending to grade the street, passed an ordinance re-establishing the grade of the street. The former paper grade was materially changed. The city then brought an action to condemn and assess the damages, if any, caused by the grading of the street to the grade line established by the later ordinance. Respondents are owners of abutting lots. This court has held:

'In the absence of some statute, a municipal corporation is not liable for damages resulting from the original grading of a street, alley, or avenue, either within the original corporate limits or in any addition thereto. The power to establish grades is incident to its charter, and is implied from the dedication.' Ettor v. Tacoma, 57 Wash. 51, 106 P. 479; Schuss v. Chehalis, 144 P. 916, and authorities cited therein.

See, also, Seattle v. McElwain, 75 Wash. 375, 134 P. 1089; Muller v. Great Northern Ry. Co., 75 Wash. 631, 135 P. 631.

It is not contended by the corporation counsel that the city is not liable for the damaging of property that has been improved by the owner in faith of the first or paper grade.

'The question [as stated by counsel for respondents] is whether a city of the first class can establish and fix the grade of a street by an ordinance duly enacted, and therafter change such grade, and grade the street to the re-established grade to the damage of abutting property, and not be liable to the owners of such property for the damage so caused.'

Or, in other words, is a paper grade, unacted upon by the city, a grade established, or an initial grading, within the meaning of our own cases so as to prevent a change thereof without meeting the damages to unimproved property under article 1, § 16, of the Constitution, which provides that private property shall not be taken or damaged for a public use until the damages have been ascertained and paid?

It cannot be denied that a grade is, in a sense, established when it is defined by ordinance, but we cannot make ourselves believe that it is sound doctrine to hold that a city having an original and continuing power to establish grades and to grade streets in conformity therewith (Abbott, Munic. Corp. § 810) should be held to a rule of too strict interpretation.

If no ordinance had been passed in 1889 the city would not have been foreclosed of its right to make an original grade without payment of the resultant damages, notwithstanding the lapse of time or the improvement of the property. Mattingly v. City of Plymounth, 100 Ind. 545. For it is held, and properly so, that the holding and improvement of the property is subject to the legislative will of the city as to the time when a street shall be graded; that this will not be controlled by the courts, and consequently there can be no estoppel because of the lapse of time, either to the burden of the city or to the benefit of the property owner.

The right to recover damages at all against a city for grading or regrading a street rests upon the theory that there is a physical invasion. Until there has been a physical invasion, therefore, it would be more logical to hold that the mere adoption of a paper grade would not exhaust the right of the city to redefine the grade line so as to make a grade that will better serve the whole public, compensating only those who have built upon or improved their property and who are damaged by the change. Compensation being allowed, not upon the theory that the city cannot change the grade of a street, for that it has ample statutory authority to do, but upon the ground of estoppel, or, as Judge Dillon says, upon the 'basis of natural justice.' Dillon, Munic. Corp. (5th Ed.) § 1865.

The cases involving the exact question here presented are few. In fact we have found none which can be called quatuor pedes with it. There are, however, expressions in the books which indicate that the subject has been considered.

It has been quite generally held that the mere establishment by ordinance of a paper grade changing an existing grade or establishing an original grade in those jurisdictions where damages are allowed therefor will not give a right of action. The right rests inchoate until such time as the city acts upon it. A paper grade gives no right of action. Clark v. Philadelphia, 171 Pa. 30, 33 A. 124, 50 Am. St. Rep. 790. Damages for the grading or change of grade are not given until the actual operation on the ground. Plan 166, 143 Pa. 414, 22 A. 669.

In New Jersey awards for damages, flowing to those who had built upon their land, because of changes or alterations in street grades, are made under certain statutes similar in form and purpose to section 7874, Rem. & Bal. Code. It is said in State, etc., v. Sayre, 41 N. J. Law, 158:

'As the claim of the landowners can stand on these statutes alone, it is plain that those who had no 'house or other building' erected on their land at the time of the alteration of grade have no legal right to compensation, and the awards made to them must be set aside, unless some of the reasons alleged for the noninterference of this court be sufficient.'

A consideration of these and other cases impelled Mr. Abbott to say:

'The mere establishment of a grade on paper prior to the one which was consummated by physical construction cannot be considered.' Abbott, Munic. Corp. vol. 2, p. 1917, note 584.

The case, or rather the observations of the judge who wrote the case, which most nearly touches this case, is Manning v. City of Shreveport, 119 La. 1044, 44 So. 882, 13 L. R. A. (N. S.) 452:

'The adoption of a (paper) grade may be said to fix the liability of the property affected by it to future damage but the weight of authority is to the effect that such damage is not recoverable until actually inflicted, and hence that it is the owner at the time who may recover it.

'A municipality may not be able to grade all of its streets at one time, but it has the undoubted right to declare in advance what the grade shall be, and though, quoad property then existing and affected or to be affected, the liability to damage is thereby imposed, and the right to recover it may be said to attach to the property, to be exercised when the damage shall be actually inflicted, it cannot be said that any such liability is imposed, or that any such right attaches, with respect to property which is then nonexistent. In other words, by the adoption of a grade, to be thereafter established, the municipality fixes the status of an existent lot as property which must sooner or later be affected by the actual establishment of the grade so adopted, and the right to recover for such damages as it may sustain, though inchoate at the moment, becomes perfect when the damage is actually inflicted, and may be exercised by the then owner of the lot. But, if the lot be not improved when the grade to be actually established in the future is adopted, no liability for damage to improvements is imposed, and no right of recovery with respect thereto, whether inchoate or otherwise, is created. Under such circumstances, if the then nonexistent improvements are

...