Fletcher v. City of Seattle

• Decision Date: 11 September 1906
• Citation: 86 P. 1046,43 Wash. 627
• Parties: FLETCHER et ux. v. CITY OF SEATTLE.
• Court: Washington Supreme Court

86 P. 1046

43 Wash. 627

FLETCHER et ux. v. CITY OF SEATTLE.

Supreme Court of Washington

September 11, 1906

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by M. L. Fletcher and wife against the city of Seattle. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

MUNICIPAL CORPORATIONS--ESTABLISHMENT OF GRADE OF STREETS--DAMAGES TO ABUTTING OWNER--LIABILITY.

A city is not liable to an abutting owner for damages caused by the original establishment of the grade of a street dedicated by him to it, where the grade is a reasonable one, and the work is properly done.

[Ed Note.--For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 925-928.]

Scott Calhoun and O. B. Thorgrimson, for appellant.

F. M Jeffery, for respondents.

DUNBAR J.

Without making a specific statement of this case, the contention of the appellant is that a city is not liable for damages for the original grading of a street, where such grade is a reasonable one, and the work is properly done. The court below, in an action for damages under such a state of facts decided that the city was liable. Judgment was entered for the claimants, and this appeal is taken from such judgment.

This question has never been squarely presented to this court although the appellant relies somewhat on the case of Brown v. Seattle, 5 Wash. 35, 31 P. 313, 32 P. 214 18 L. R. A. 161, but while several questions were rather liberally discussed in the opinion rendered in that case, the question before the court was whether, under the constitutional provision, art. 1, § 16, that no property should be taken or damaged for public or private use without just compensation having been first made, damages were recoverable by the owner of land abutting upon a street for any permanent injury inflicted upon such abutting land by any material change of grade or obstruction to the abutter, where the damages thus inflicted exceeded the benefits derived from the grading or other improvement. A distinction has been made by the authorities between an action for damages for the original establishment of a grade and an action for damages for a change of grade. But whether or not this distinction is a sound one, we think it may be, especially where a grade has been finally established and improvements have been made with reference to such establishment. We do not care to extend the doctrine announced by the Brown-Seattle Case, nor apply it to a case of original establishment of a grade, for it seems to us the right to grade the streets must necessarily be implied in the dedication, or the dedication is practically meaningless. The streets are dedicated for the purpose of giving access to the adjoining lots, or of making such lots available for residence or business purposes, and the value of the lots necessarily depends upon the...