Felker v. City of New Whatcom

• Decision Date: 14 December 1896
• Parties: FELKER v. CITY OF NEW WHATCOM.
• Court: Washington Supreme Court

47 P. 505

16 Wash. 178

FELKER v. CITY OF NEW WHATCOM.

Supreme Court of Washington

December 14, 1896

Appeal from superior court, Whatcom county; John R. Winn, Judge.

Ejectment by G. W. Felker, administrator, against the city of New Whatcom. Judgment for defendant, and plaintiff appeals. Affirmed.

John T Pidwell, H. J. Miller, and S. M. Bruce, for appellant.

D. W Freeman, for respondent.

DUNBAR J.

This is an action of ejectment, prosecuted by G. W Felker, as administrator of the estate of Samuel W. Herring deceased, against the city of New Whatcom, to establish title to and recover possession of lot 5 in block 33 in said city. This land was sold in 1884 for an assessment tax bid in by one Pettibone, and afterwards, by legal conveyance, conveyed to the city of New Whatcom. Samuel W. Herring, who was the owner of the property, died in 1879. In 1894 the appellant was appointed administrator of the estate of S.W. Herring, deceased, and shortly after proceeded to bring this action. The appellant contends that the tax deed made to Pettibone is void, and conveyed no title, for the reasons, as alleged by him: (1) That no notice of intention to improve said streets was ever given; (2) that the pretended notice to improve did not inform the property owners of the materials to be used or of the character of work proposed, from which an estimate of the cost could be made; (3) that no ordinance was ever passed fixing the time within which property owners might comply in making the improvement; (4) that the work was never completed, and the property owners cannot be compelled to pay an assessment therefor; (5) that the name and initials used in the assessment and sale of the land are not the name and initials of the owner; (6) that the tax deed is void upon its face in not being made in the name of the city as grantor. The seventh assignment, under the view we take of the law, need not necessarily be discussed here. No statement of facts has been settled. The case was tried by a judge, a jury having been waived. The judge made findings of fact, which are not excepted to, and the only question for us to determine is whether or not the findings of fact justify the conclusions reached by the lower court; the lower court holding that the city of New Whatcom was the owner in fee simple of the lot in dispute, and that the plaintiff has no interest whatever in said lot. the court found that the city of New Whatcom is a municipal corporation; that prior to the 22d day of August, 1879, Samuel W. Herring was the owner in fee simple of the lot; that on March 14th and 21st the city of New Whatcom caused a notice to be published in the newspaper doing the city printing. It is not necessary to set the notice out in full here, but the improvements to be made were described as follows: "To be piled and planked," and the other street "to be excavated and filled, and the whole of said streets to be sidewalked as follows," describing the width of the sidewalks on the different streets. Appellant contends that no notice of intention to improve said street was ever given; that there were two notices published, but that the second notice made a material departure from and alteration in the first by adding the words, "between E street and the Colony Wharf Reserve"; that this made a new notice, and took in new territory for improvement, and the former publication was without effect. We do not think there is any merit in this contention. The notice of the street improvement was published March 14th and 21st, and it is not disputed that the property in question was properly described in that notice, and the property which was properly described is not affected by a further publication which gives notice of an improvement not given in the first publication. Notice was given to this property owner as the law required, and, if any one can complain of a want of notice, it is the owners of the property which was omitted from the first notice and included only in the last. The owner of this particular property had longer notice than the law required of the city's intention to improve this street by the publication of the notice on the 14th and 21st of March.

The next proposition-that the notice did not inform the property owner of the materials to be used, or of the character of work proposed, from which an estimate of the cost could be made-is based largely upon the decision of this court in Buckley v. City of Tacoma, 9 Wash. 253, 37 P. 441; but, while we would not extend the doctrine announced in that case as against a municipal corporation, we do not think that that case is applicable to the one at bar. Under the Tacoma charter the first step required was the passing of the resolution stating the intention of the council to improve the street, and the kind of improvement to be made; but under the charter of the city of Whatcom the first step is a survey, diagram, and estimate. This estimate is filed in the office of the city clerk under the provisions of section 1, c. 9,...