Davison v. City of Walla Walla

• Decision Date: 07 April 1909
• Citation: 100 P. 981,52 Wash. 453
• Parties: DAVISON v. CITY OF WALLA WALLA.
• Court: Washington Supreme Court

100 P. 981

52 Wash. 453

DAVISON v. CITY OF WALLA WALLA.

Supreme Court of Washington

April 7, 1909

Appeal from Superior Court, Walla Walla County; Thos. H. Brents Judge.

Action by Anna M. Davison against the City of Walla Walla. Judgment of dismissal, and plaintiff appeals. Affirmed.

Brooks & Bartlett and John H. Pedigo, for appellant.

Oscar Cain and J. C. Hurspool, for respondent.

FULLERTON J.

The city of Walla Walla is a municipal corporation operating under a special charter enacted by the legislative assembly of the territory of Washington. Section 4 of the charter gives the city power to make regulations for prevention of accidents by fire, and 'on petition of the owners of one-half of the ground included within any prescribed limits within the city, to prohibit the erection within such limits of any building, or any addition to any building, unless the outer walls thereof be made of brick and mortar and iron, or stone and mortar, and to provide for the removal of any building, or any addition erected contrary to such prohibition.' Pursuant to this provision of its charter the city enacted an ordinance creating fire limits, within which it made it unlawful to erect any building other than those defined in the city charter, or to repair or rebuild any wooden building within the fire limits, without the consent of the city council, that should be damaged by fire to an extent equaling 30 per centum of its value. The appellant owned a frame structure erected upon a concrete basement within the fire limits which was destroyed by fire to an extent greater than 30 per centum of the value of the building if the concrete basement is not included in the estimate of value, but less than 30 per centum of its value if the concrete basement is included in such estimate. The city authorities, claiming that the building was destroyed to such an extent as to prevent the owner from rebuilding, threatened to remove the portion of the structure remaining when this action was begun to enjoin them from so doing. At the trial the court held with the city, and dismissed the action. The owner appeals.

The appellant attacks the validity of the ordinance. He complains that it was not shown that the ordinance was preceded by the preliminary petition prescribed by the city charter. But, as we read the record there was no issue on this question. The city in its answer pleaded that the ordinance was duly passed, while the denial in the reply merely questions the power of the city to pass the ordinance, not that the prelimnary steps were not properly taken. This form of denial does not put in issue the regularity of the proceedings leading up to the passage of the ordinance, and the city was not called upon to prove them.

It is next insisted that the ordinance is arbitrary and confiscatory, in that it attempts to confer upon the city power to destroy property of the citizen without first...