City of Spokane v. Merriam

• Decision Date: 26 June 1914
• Docket Number: 11856.
• Citation: 80 Wash. 222,141 P. 358
• Parties: CITY OF SPOKANE v. MERRIAM et al.
• Court: Washington Supreme Court

141 P. 358

80 Wash. 222

CITY OF SPOKANE v. MERRIAM et al.

No. 11856.

Supreme Court of Washington

June 26, 1914

Department 1. Appeal from Superior Court, Spokane County; J. Stanley Webster, Judge.

Action by the City of Spokane against Rufus Merriam and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

H. M Stephens, of Spokane, for appellant.

Post Avery & Higgins and Graves, Kizer & Graves, all of Spokane for respondents.

ELLIS J.

This is an action to condemn land for a public park. The complaint alleges:

'That the electors of the city of Spokane have authorized a bond issue of $875,000 for the purpose of acquiring and improving land for park purposes; that the board of park commissioners of the city of Spokane has planned as part of the park system of the city of Spokane boulevards, parks, and playgrounds located in different parts of the city of Spokane, to furnish roads, playgrounds, and parks for the general public; that the property hereinafter described is part of the property determined upon by the said board of park commissioners for said park use, and that it is necessary and public necessity requires to acquire the above-described property for the public uses and purposes as above set forth in order to serve and accommodate the people of the city of Spokane.'

Omitting other immaterial matter, it is then alleged that the city passed two ordinances numbered, respectively 'C1443' and 'C1444,' copies of which are attached to, and made a part of, the complaint. The first of these, omitting immaterial parts, is as follows:

'An ordinance providing for the condemnation for public park purposes of the following described property, comprising approximately five (5) acres, more or less, situated in the city and county of Spokane, Washington, to wit: [here follows specific description of the real property which it is admitted belongs to the defendants Merriam and wife] and directing the corporation counsel to institute proceedings therefor.

'Whereas, public necessity requires that the property above described be acquired by the city of Spokane for public park purposes: Now, therefore, the city of Spokane does ordain:

'Section 1. That the corporation counsel be and he is hereby instructed and authorized to institute proceedings for the condemnation for public park purposes of the following described property situated in the city and county of Spokane, Washington, comprising approximately five (5) acres, more or less, to wit: [here the property sought to be taken is again specifically described].'

The other ordinance is identical with this save that the property specifically described comprised approximately 34 acres, and is the property admittedly belonging to Birch and wife, Charles H. Jones and wife, and Melville F. Jones. The petition closes with the usual prayer in such cases. A jury was impaneled and sworn, and, by agreement of counsel, visited the property sought to be taken.

The plaintiff offered in evidence the testimony of the engineer of the city park board to the effect that he had made surveys of the land involved and a map showing its relation to the city of Spokane, and to other park property of the city. This map, which is in the record, shows that the two pieces of property sought to be taken, known as the Merriam property and the Birch and Jones property, form one complete tract, comprising about 39 acres lying between, and forming a connecting link between, two tracts which the witness testified were lands which had been donated to the city for park purposes. Each of these donated tracts apparently contains something over 40 acres. The witness also identified as prepared by himself a contour map of the land sought to be taken, showing that all save about 10 acres is rough land, lying upon a hillside. Certified copies of the two ordinances attached to the petition were offered and received in evidence. Objection was made by the defendants that these ordinances were not sufficient in themselves to show a public use. The court intimated that additional proof of the public use and necessity would be required. The plaintiff thereafter sought to introduce a certified copy of the petition of the park board and the park board record, requesting the council to make the condemnation, and the deeds of donation conveying the two tracts of land on either side of the property sought to be condemned and the proceedings of the city council touching the condemnation, and called the secretary of the park board to identify the park board records for the purpose of this proof. The offer, upon objection, was rejected. The secretary of the park board identified, from the minutes of a regular meeting of the park board of July 10, 1913, a communication on behalf of the owners of the two tracts of land on either side of and adjoining the property here sought to be taken, offering to dedicate these two tracts to the city upon the following condition:

'The above proposition is made provided the city will open to the public the thoroughfare we are herewith proposing to dedicate through section 31, and acquire title and occupy the 39 acres in the northeast quarter of the southwest quarter of said section for thoroughfare and park purposes, also to improve immediately in a good workmanlike manner this thoroughfare through section 31 by grading a road at least 20 feet wide, and our land to revert to us should the city not improve the same as a parkway and for park purposes within a reasonable time, or ever use it for any other purpose. It is our understanding that this thoroughfare is to be improved according to the tentative plans already made by the Olmsted Brothers of Boston.'

Following this was offered an order or resolution of the park board as follows:

'On motion of Commissioner Wilson, seconded by Commissioner Geraghty, and carried by the affirmative vote of all commissioners present, excepting Commissioner Hamblen, who did not vote thereon, the matter was referred to the acquisition committee with power to act, and the president and secretary authorized and instructed to request the city council to condemn the entire area owned by Jones, Birch, and Merriam, in said section 31, instead of a roadway through same as originally ordered.'

Plaintiff also offered in evidence deeds from the parties mentioned in the foregoing offer, conveying to the city of Spokane the property therein described, namely, the two tracts of land on either side of the property sought to be taken, which deeds contain express covenants to the effect that, as a part of the consideration for the conveyance, the city of Spokane will acquire the 39 acres, and will improve, occupy, and forever maintain for park and thoroughfare purposes, and no other, 'the land so acquired and the land herein conveyed,' and, as soon as the weather will permit, will grade a roadway at least 20 feet wide through the lands, and, further, that the land conveyed will be connected with the city park and parkway system, and will be improved and maintained as early as conditions in the adjacent locality will warrant. Each of the deeds contains the further covenant that, in the event of the failure of the city to comply with any of the conditions of the grant, the land conveyed shall revert to the grantor. There are four of these deeds, all containing substantially these same conditions. Certified copies of the petition presented to the city council for the condemnation and of the proceedings of the council with respect to the property involved were offered, objected to, and rejected. Two of these are communications from the park board to the mayor and city council, stating, in substance, that at a meeting of the park board on August 14, 1913, it was ordered that the city council be requested to condemn the property here sought to be taken, and describing by specific descriptions the 5 acres (the Merriam tract) and the 34 acres (the Birch and Jones tract), and closing with the statement that the matter had been under consideration for several years; that ordinances had been passed by the city council for condemnation through this area, and called attention to the fact that the change of description would probably require new ordinances. There was also offered a communication from the commissioner of public utilities, city engineer, and commissioner of public works to the mayor and city council, reciting that these, as a committee appointed to investigate the condemnation of land in accordance with the petition from the park board, begged to report that after a careful investigation they recommended the condemnation as requested. The superintendent of parks for the city of Spokane was called as a witness, and the offer made to prove by him the plan of the park board for improving the two tracts of land which had been donated to the city, and in connection therewith of the property here sought to be taken, for park purposes. This evidence was also excluded.

The trial court held, in substance, that the ordinances pleaded in the petition for condemnation were insufficient to initiate the proceeding, in that they declared generally that the public interest requires that the property described be acquired by the city of Spokane for public park purposes. The court was of the opinion that the purposes of the city to use this land for park purposes and the necessity for that use could only be proved by ordinances of the city to that effect, and held that before the city can condemn property for any purpose, whether for parks or otherwise----

'it must, by appropriate ordinances, set forth the improvement or scheme in furtherance or execution of which the property sought to be condemned is to be used, and the manner of the use to which it is to be

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