Fletcher v. City of Seattle

• Court: Washington Supreme Court
• Writing for the Court: DUNBAR, J.
• Citation: Fletcher v. City of Seattle, 43 Wash. 627, 88 P. 843 (Wash. 1907)
• Decision Date: 18 February 1907
• Parties: FLETCHER et al. v. CITY OF SEATTLE.

88 P. 843

43 Wash. 627

FLETCHER et al. v. CITY OF SEATTLE.

Supreme Court of Washington

February 18, 1907

On reheairng. Former opinion reversed, and judgment below affirmed.

For former opinion, see 86 P. 1046.

DUNBAR J.

This case involves a claim for damages caused by the original establishment of a grade in a street in the city of Seattle. The trial court held that the city was liable to an abutting owner for damages caused by the original establishment of the grade of the street, and, upon appeal from a judgment in his favor to this court, the judgment was reversed, and it was here decided that a city was not liable to an abutting owner for damages caused by the original establishment of the grade of the street dedicated by him to it where the grade was a reasonable one and the work was properly done; that, in the absence of a statutory right to such damages, they could not be collected, for the reason that the value of the lots adjoining such street necessarily depends upon the maintenance of the streets upon which they abut, and that this element of value must have been taken into consideration by the dedicator and that he ought not to be heard to demand damages for the establishment of a reasonable grade or the maintenance of a reasonable road which must be established or maintained to make his property available as town or city property, the character which he sought to impress upon it when he filed his plat and dedicated the streets, and the judgment of the lower court was therefore reversed. On petition for rehearing, however, a statute was cited which had not been called to the attention of the court, nor considered by the court in the disposition of the cause, and upon considering such statute a rehearing of the case was ordered. Such rehearing has been had, and the case is again here for determination.

The statute which it was claimed by the respondent confers the right to damages in such case is section 5095 of Pierce's Code (Ballinger's Ann. Codes & St. § 821), being section 47 of chapter 84, p. 207, of the Laws of 1893, page 189. The section is as follows: 'Sec. 47. If any street, avenue or alley, or the right to use and control the same for purposes of public travel, shall belong to any city and such city shall establish a grade therefor, which grade requires any cut or fill, damaging abutting property, the damages to arise from the making of such grade may be ascertained in the manner provided in this act, but such city may provide that the compensation to be made for such damage together with the accruing costs, shall be added to the cost of the labor and material necessary for the grading thereof and shall be paid by assessment upon the property within the local assessment district defined by law or the charter or ordinances of such city in the same manner and to the same extent as other expenses of such improvement are assessed and collected. In such case it shall not be necessary to procure the appointment of commissioners or take the other proceedings herein provided for making such assessments, but all the proceedings for the assessment and collection of such...