City of Yakima v. Snively

• Decision Date: 31 August 1926
• Docket Number: 19637.
• Court: Washington Supreme Court
• Parties: CITY OF YAKIMA v. SNIVELY et al. (ZEDIKER, Intervenor.

248 P. 788

140 Wash. 328

CITY OF YAKIMA v. SNIVELY et al. (ZEDIKER, Intervenor.

No. 19637.

Supreme Court of Washington, En Banc.

August 31, 1926

Appeal from Superior Court, Yakima County; V. O. Nichoson, Judge.

Action by the City of Yakima against H. J. Snively and others wherein Anna McNeill Zediker intervened. From a decree for plaintiff and intervener, defendants appeal. Judgment reversed, and cause remanded for further proceedings.

Main and Askren, JJ., dissenting.

Snively & Bounds and Harcourt M. Taylor, all of Yakima, for appellants.

Dolph Barnett, of Yakima, for respondent.

HOLCOMB, J.

This action was brought to foreclose a lien for special assessments, and from a decree in favor of respondent city and respondent intervener this appeal is taken.

On February 20, 1911, a resolution of intention to improve certain streets in Yakima was adopted by the city council the improvement district being designated as No. 224. On March 8, 1911, an ordinance was passed in conformity with the resolution of intention providing for the improvement to consist of paving certain streets and avenues, including among others, one designated therein as Linden lane, and another then called Miles avenue, which cross each other at right angles, Miles avenue running north and south on the eastern border of a tract of land belonging to appellants and Linden lane, as it was called, running east and west from the west side of Miles avenue, on the north border of appellants' land, to the west limits of the city, then called North Yakima.

The land of appellants, situated within the angle formed by these two streets, is 486.6 feet long on the northern boundary along the so-called Linden lane and 300 feet wide north and south along Miles avenue and 660 feet long on the southern boundary, the western boundary being on an angle from the southwest corner of the tract to the northwest corner. No street abutting the west end of the tract was improved by the city. Although appellants contend that their land was not to be considered as unplatted land, we conclude that it is unplatted land under the ruling in Sivyer & Sons v Spokane, 77 Wash. 282, 137 P. 808, as the land here although readily susceptible of being divided into blocks of ordinary size, has never been so subdivided and is unplatted. Hence, we also conclude, contrary to a contention of the appellants, that under the Act of 1909, c. 26, the levy could include the land of appellants to a depth of 120 feet.

Notice of hearing on the assessment roll for the improvement ordained by the city council was given December 28 and 29, 1911, and the roll was confirmed and the ordinance passed January 15, 1912. The improvement was initiated under chapter 26, Laws of 1909, p. 38. On June 7, 1911, chapter 98, Laws of 1911, took effect, providing a complete new act on the subject of local improvements and assessments therefor. By the provisions of the saving clause of the latter act, all remedial provisions contained in it superseded the existing law and made it mandatory on municipal authorities and property owners to be governed by the Laws of 1911, supra. In re Local Improvement Sewer District No. 1, 84 Wash. 565, 147 P. 199.

Subsequent to the enactment of the ordinance providing for the local improvement involved herein, the city council of Yakima passed a general ordinance renaming many of the streets of the city, and among others renamed Miles avenue on the eastern border of appellants' that Sixteenth Avenue South, and named or remanded the street, whatever it had been, on the north of appellants' tract, West Yakima avenue, from the west edge of Miles avenue, which is renamed Sixteenth Avenue South, to the city limits. The assessment for the improvement by the city was made payable within 30 days after January 17, 1912, after the expiration of which time it was provided that bonds should be issued payable in ten annual installments for all unpaid assessments assessed in and for the improvement district.

In January, 1918, it was discovered that an error had been made in the description of a portion of the property belonging to appellants, in the assessment roll, in that, instead of the west 120 feet of the south 180 feet of their tract of land being improved, which did not abut upon any street to be improved, the assessment should have included and described the east 120 feet of the south 180 feet of the tract, and the latter description had been omitted by mistake from the assessment roll. Thereupon, on February 7, 1918, the city commission of Yakima passed Resolution No. B-479, in which was set forth that the east 120 feet of the south 180 feet of the tract was omitted from such assessment, notifying all persons who might be interested to appear at a meeting of the city commission at a time therein specified and present their objections thereto, which resolution was duly published in the official newspaper of the city. Notice was given that the hearing would be held on February 25, 1918, at the hour of 10 o'clock a. m. at the office of the city commission, and a hearing was had thereon at that time. Neither the defendants nor any other person appeared at the hearing, or in any manner objected thereto, or to the inclusion of the property omitted in the assessment roll, and thereupon Ordinance No. A-339 was passed providing for the assessment of the correct tract of land, and confirmed the assessment roll theretofore prepared covering the omitted property and assessing the same for the improvement in the sum of $1,056.42, the amount the tract had been and was specially benefited by reason of the improvement.

No part of the assessments levied upon either the original assessment or the reassessment, either principal or interest, was paid. After the expiration of the time provided for in the ordinance, local improvement bonds were issued covering all the unpaid assessments, including the property of appellants; the assessments then became due in ten equal annaul installments on February 17, 1912, and annually thereafter to and including February 17, 1922, together with the penalty of 5 per cent. as provided by law, and interest at the rate of 7 per cent. per annum.

The intervenor herein, on May 28, 1915, purchased from the city certificates of delinquency in the sums of $438.11 and $1,113.64 respectively, covering the first two installments of principal and interest of the assessments. The complaint alleged that on February 17, 1923, there was due and owing and unpaid to the city eight annual installments amounting in all, with penalty and interest, to the sum of $1,599.54, for the east 120 feet of the south 180 feet of the tract, and $3,825.05 for the north 120 feet of the tract, all bearing interest at the rate of 7 per cent. per annum from that date until paid. On February 17, 1923, all of the aforesaid assessments were certified by the city treasurer of Yakima to the county treasurer of Yakima county in the manner provided by law.

Appellants for answer have admitted and denied certain allegations of the complaint, and affirmatively alleged that the city was without jurisdiction or authority in passing the ordinance known as Ordinance No. A-824, providing for the improvement of certain streets and avenues in the city, and in creating local improvement district No. 224; also that the city was without jurisdiction and authority to pass Resolution No. B-479, and without jurisdiction and authority to pass Ordinance No. A-339. It was further affirmatively alleged that that portion described in the proceeding as West Yakima avenue, north of the land belonging to appellants, was not a portion of West Yakima avenue and never had been, that the city at the time the alleged street was paved did not have legal title to the same, 'and never has acquired legal title to the same,' and that the city was without authority or jurisdiction in any manner whatever to pave and improve the same and charge the cost thereof to the adjacent lands.

Several contentions urged by appellants as to the invalidity of the method of assessment, are untenable. It appears in evidence that what the city called Linden lane and afterwards named as an extension of West Yakima avenue at one time belonged to an owner named Methuen. Prior to the initiation of the improvement proceedings involved herein, on April 20, 1902, Methuen, by warranty deed, conveyed to Harris Dills, Samuel Cameron, and H. M. Gilbert, and 'to their heirs and assigns forever,' the south 30 feet of the tract adjoining the Snively tract on the north, 'to have and to hold to them and their heirs and assigns forever.' There was a clause in the deed that the strip conveyed was to be 'forever kept open and used as a roadway.'

The clear implication of this conveyance is that it was a conveyance for a private easement or way of necessity. Dills owned, but did not reside upon, an acreage tract north of the Snively tract. He had an undisclosed intention to plat his land and subsequently did so, but did not dedicate any street to the south of his plat. There were some residents upon the tract to the north of the Snively tract by the name of Cameron, Gilbert, and Col. L. S. Howlett, the father-in-law of Cameron, who needed this roadway for access to their premises. Cameron, who was one of the grantees in the deed above referred to, afterwards died, and his widow, and sole successor in interest, together with Dills, Gilbert, and their wives, on April 30, 1924, conveyed this tract of land to the city of Yakima to be forever kept open and used as a roadway. This last conveyance was long subsequent to the improvement made on this strip, or on the street called Linden lane, or West Yakima avenue, as it may be. In fact, it was made after the issues were made up...