Ettor v. City of Tacoma

• Decision Date: 26 March 1910
• Court: Washington Supreme Court
• Parties: ETTOR et ux. v. CITY OF TACOMA et al.

107 P. 1061

57 Wash. 50

ETTOR et ux. v. CITY OF TACOMA et al.

Supreme Court of Washington

March 26, 1910

On motion for rehearing. Rehearing denied.

For former opinion, see 106 P. 478.

PER CURIAM.

We are asked to reverse our former holding in this case (106 P 478); appellants claiming that this case is controlled by certain decisions of the Supreme Court of the United States not heretofore called to our attention, viz.: Muhlker v N.Y. & Harlem R. Co., 197 U.S. 544, 25 S.Ct. 522, 49 L.Ed. 872; Steamship Company v. Joliffe, 2 Wall. 450, 17 L.Ed. 805; Sauer v. City of New York, 206 U.S. 536, 27 S.Ct. 686, 51 L.Ed. 1176. Under these authorities, appellants insist that respondents are liable for the damages claimed, even though there had never been a statute giving compensation for damages resulting from an original grade, and that chapter 80 of the Laws of 1909 is void even if it could be given a retroactive effect. The Muhlker Case grew out of a condition theretofore unknown to the courts of this country. It had been held by the Supreme Court of New York that light and air coming from a street could not be taken from the adjacent property owner without compensation by an elevated railroad company. Subsequently one Muhlker acquired certain property fronting on a street over which the track of the railway was constructed. It was laid on or below the grade of the street, but by an act of the Legislature the company was authorized to change it to an elevated road. The company claimed immunity from damages under its original grant of a right of way and the subsequent act of the Legislature. The state court held with the company. This judgment was reversed by the Supreme Court of the United States. Counsel emphasizes that part of the decision wherein it is said: 'Hence the importance of the elevated railroad cases and the doctrine they had pronounced when the plaintiff acquired his property. He bought under their assurance, and that these decisions might have been different, or that the plaintiff might have balanced the chances of the commercial advantage between the right to have the street remain open and the expectation that it would remain so, is too intangible to estimate.' Reference to the Muhlker Case and the New York cases referred to therein shows that the distinction between an original use and an inconsistent street use or added servitude was considered by the court. The court expressly calls attention to the fundamental error of the state court, saying: '* * * The court concluded that it was the state, not the railroads, which did the injury to plaintiff's property'--and ordered a reversal because it found the fact to be otherwise.

But, if as counsel contend, the Supreme Court of the United States has held that the Legislature having once spoken so fixes property right that it cannot thereafter legislate, or if a court is bound willy nilly by a previous decision upon a subject left open by the Constitution, the decision is not sound. For no citizen has the constitutional right to insist that courts shall not reverse their decisions upon matters of property rights, or that legislative assemblies shall not change existing statutes when his right of recovery depends solely upon the decision or statute, and his only reason is that he will thereby suffer a pecuniary loss. If it were so the state as well as its municipalities would be helpless to exercise its primary right of sovereignty over established righways and be subject to what Mr. Justice Holmes, in his dissenting opinion, has been pleased to call 'the parasitic right' of the property owner. As we have shown in our first opinion, an original grade is not a taking or damaging within the meaning of the Constitution whereas, an added servitude, as an elevated railroad obstructing light and air, or, as has been held in this state, a regrade, is.

In the Sauer Case the distinction between the position of appellants and that assumed by the respondents is clearly pointed out. After quoting from the New York cases, the court said 'It would be difficult for words to show more clearly, than those quoted from the opinions [New York cases], that such a case, as that now before us, was not within the scope of the decisions or of the reasons upon which they were founded. The difference between a structure erected for the exclusive use of a railroad and one erected for the general use of the public was sharply defined. It was only the former which the court had in view. That the structure was elevated, and for that reason affected access, light, and air, was an important element in the decisions; but it was not the only essential element. The structures in these cases were held to violate the landowners' rights, not only because they were elevated and thereby obstructed access, light, and air, but also because they were designed for the exclusive and permanent use of private corporations. The limitation of the scope of the decision to such structures, erected for such purposes, appears not only in the decisions themselves but quite clearly from subsequent decisions of the Court of Appeals.' In none of these cases was the right of a city to make an original grade of its streets involved, nor was the right of the Legislature to abridge or abrogate a right given by statute considered or questioned. The point we have to consider here, and the governing rule of law, is made plain in the concurring opinion of Mr. Justice Bradley, in Louisiana v. Mayor of New Orleans, 109 U.S. 291, 3 S.Ct. 215, 27 L.Ed. 936. He says: 'I concur in the judgment in this case, on the special ground that remedies against municipal bodies for damages caused by mobs, or other violators of law unconnected with the municipal government, are purely matters of...