Coleman v. City of Everett, 26873.

• Decision Date: 04 March 1938
• Docket Number: 26873.
• Parties: COLEMAN et al. v. CITY OF EVERETT et al.
• Court: Washington Supreme Court

76 P.2d 1007

194 Wash. 47

COLEMAN et al. v. CITY OF EVERETT et al.

No. 26873.

Supreme Court of Washington

March 4, 1938

Department 2.

Appeal from Superior Court, Snohomish County; Ralph C. Bell, Judge.

Separate suits by Joseph Coleman and John Cavalero, executors of the estate of D. Cavalero, deceased, and another, to enjoin the City of Everett, a municipal corporation, and another from laying a pipe line aboveground along plaintiffs' land. From judgments of dismissal, plaintiffs appeal.

Reversed and remanded, with directions.

Jos Coleman and Clarence J. Coleman, both of Everett, for appellants.

Jesse H. Davis and Parker Williams, both of Everett, for respondents.

BLAKE Justice.

These actions, consolidated for trial, were brought for injunctive relief. From judgments of dismissal, plaintiffs appeal.

In 1929, the appellants severally executed and delivered to the respondent city deeds of easement containing the following clause: 'Know all men by these presents, the Theodore Anderson, a bachelor, for and in consideration of Eleven Hundred and no/100 Dollars ($1100.00), and other good and valuable consideration, receipt of which is hereby acknowledged, does hereby grant and convey unto Everett, a municipal corporation, an easement for the right to construct and maintain a pipe line or lines along and under a strip of land over and across the following described tract of land.'

Shortly thereafter, the city laid underground water mains along the strips of land described in the deeds. In their complaints filed in December, 1936, appellants alleged that the city purposed to lay another pipe line above ground along the strips of land described in the deeds of easement; that to effectuate that purpose, the city had let a contract to respondent Angeles Sand & Gravel Company for the construction of such a pipe line; and that in performance of the contract respondents had entered upon the land. The city not only admitted that it claimed, under the deeds of easement, the right to lay a pipe line aboveground, but, upon dismissal of the actions in the lower court, proceeded to so construct one. So, at the time the cases were heard on appeal, the city had fully accomplished that which appellants sought to enjoin.

Predicated on the accomplished fact, respondents have moved to dismiss the appeals on the ground that the questions raised are moot. The argument is, that since the actions were for injunctive relief, and since the pipe line has been constructed, a prohibitory injunction would be abortive; and further, since the pipe line is a structure of a public nature, the court will not entertain an action for a mandatory injunction to compel its removal, but will relegate appellants to actions for damages.

From a purely technical standpoint, the motions to dismiss would appear to be well taken. But we think they are without substance. Unless, under the deeds of easement, the city has the right to lay pipe lines aboveground, it has taken and damaged appellants' property without paying just compensation therefor, as required by section 16, article 1, of the State Constitution. If appellants are entitled to compensation, it would be a useless procedure to turn them out and compel them to bring another action to maintain their constitutional...