City of Tacoma v. Titlow

• Decision Date: 18 May 1909
• Parties: CITY OF TACOMA v. TITLOW et ux.
• Court: Washington Supreme Court

101 P. 827

53 Wash. 217

CITY OF TACOMA v. TITLOW et ux.

Supreme Court of Washington

May 18, 1909

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by the City of Tacoma against A. R. Titlow and another. Judgment for plaintiff. Defendants appeal. Affirmed.

A. R Titlow and John M. Boyle, for appellants.

T. L Stiles, F. R. Baker, and F. A. Latcham, for respondent.

RUDKIN C.J.

This proceeding was instituted by the city of Tacoma, a municipal corporation of the first class, to condemn and appropriate a right of way over certain lands within and without its corporate limits, for the purpose of extending Sixth avenue 'west to the high land on the shore of Puget Sound, and thence by curving the said Sixth avenue from a point in lot 3, section 3, township 20 north, range 2 east to a point on the Inner Harbor line about midway between Wilton waterway and Day Island waterway.' A portion of the land thus sought to be appropriated lies in block 132, Tacoma tide lands, owned by the appellants. Titlow and wife. At the point on Puget Sound where the proposed street terminates, the city limits only extend to the line of ordinary high tide, so that tide-land block 132 lies without the city limits, between the mainland and the Inner Harbor line. The court below adjudged that the proposed use was a public use, and that public necessity demanded the prosecution of the enterprise, and ordered a jury impaneled to assess the damages. From this order the appellants, Titlow and wife, have appealed.

The first error assigned is the insufficiency of the evidence on the questions of public use and public necessity to support the order of condemnation as to the tide-land lots in controversy. If the city of Tacoma had jurisdiction to extend its streets over these tide lands, the determination of the questions of public use and public necessity by the proper municipal officers is conclusive upon the courts in the absence of fraud. Selde v. Lincoln County, 25 Wash. 198, 65 P. 192; State ex rel. Schroeder v. Superior Court, 29 Wash. 1, 6, 69 P. 366; Adams County v. Schroeder, 30 Wash. 703, 70 P. 1134; State ex rel. Thomas v. Superior Court, 42 Wash. 521, 85 P. 256; State ex rel. Pagett v. Superior Court, 47 Wash. 11, 91 P. 241.

It is next contended that the city has no power to condemn lands for street purposes without its territorial limits. Section 1 of the act of March 13, 1907 (Laws 1907, p. 316, c. 153) provides as follows: 'Every city of the first, second and third classes and other cities having a population of over fifteen hundred inhabitants within the state of Washington, is hereby authorized and empowered to condemn land and property, including state, county and school lands and property for streets, avenues, alleys, highways, bridges, approaches, culverts, drains, ditches, public squares, public markets, city and town halls, jails, and other public buildings, and for the opening and widening, widening and extending, altering and straightening of any street, avenue, alley, or highway, and to damage any land or other property for any such purpose or for the purpose of making changes in the grade of any street, avenue, alley or highway, or for the construction of slopes or retaining walls for cuts and fills upon real property abutting on any street, avenue, alley or highway now ordered to be, or such as shall hereafter be ordered to be, opened, extended, altered, straightened or graded, or for the purpose of draining swamps, marshes, tide lands, tide flats or ponds, or filling the same, within the limits of such city, and to condemn land or property, or to damage the same, either within or without the limits of such city for public parks, drives and boulevards, hospitals, pest houses, drains and sewers, garbage crematories and destructors and dumping grounds for the destruction, deposit or burial of dead animals, manure, dung, rubbish, and other offal, and for acqueducts, reservoirs, pumping stations and other structures for conveying into and through such city a supply of fresh water, and for the purpose of protecting such supply of fresh water from pollution,...