Fry v. O'Leary

• Decision Date: 04 January 1927
• Docket Number: 19880.
• Citation: 141 Wash. 465,252 P. 111
• Court: Washington Supreme Court
• Parties: FRY et ux. v. O'LEARY et al.

252 P. 111

141 Wash. 465

FRY et ux. v. O'LEARY et al.

No. 19880.

Supreme Court of Washington, En Banc.

January 4, 1927

Appeal from Superior Court, Thurston County; Wilson, Judge.

Action by R. H. Fry and wife against Joseph P. O'Leary and others. From an order sustaining a demurrer and dismissing the action, plaintiffs appeal. Reversed, with instructions.

Robert Hope Fry, of Olympia, for appellants.

Thos L. O'Leary and John S. Lynch, both of Olympia, for respondents.

ASKREN J.

This is an action to set aside an ordinance vacating a portion of a street in Olympia and to require the removal of a building placed thereon. From an order sustaining a demurrer and dismissing the action, plaintiffs appeal.

In August, 1922, respondents O'Leary, after receiving permission from the city of Olympia, erected a garage and fence within the limits of Garfield avenue, in Olympia.

In December, 1925, respondents O'Leary, together with P. M Troy and James E. Clark, petitioned the city council to vacate 13 feet off the south side of Garfield avenue, between Sherman avenue and West Bay drive, in the city of Olympia, this amount being sufficient to embrace the garage referred to. These three petitioners were the owners of three of the four lots whose sides abut on Garfield avenue, O'Learys' and Clark's properties being on the south side of the street where the strip was sought to be vacated, and Troy's property being on the north side. Appellants Fry were the owners of the fourth lot, it being on the north side and across the street from the part sought to be vacated. Proper proceedings were thereafter had by the city council, resulting in the passage of an ordinance vacating 13 feet off the south side of Garfield avenue for the block in distance from Sherman avenue to West Bay drive. Remonstrance was filed by the appellants here, but it was not sustained by the council. This proceeding was then begun to declare the ordinance invalid upon the ground that the petition was not signed by two-thirds of the property owners abutting on the street as required by law, and that the ordinance, if put into effect, would result in taking away appellants' vested rights of ingress and egress on the full width of the avenue, and that a garage building, placed on the vacated portion by the O'Learys, had deprived the Fry property of a portion of its view, light, air, access etc. Fraud was also alleged, it being claimed that, at the time the ordinance was passed, the attorney for respondents O'Leary agreed that if litigation ensued over the granting of the petition he would defend the same without cost, and that in the event the city ever desired the use of the vacated strip, an easement or quitclaim would be given to the city without charge therefor.

The trial court sustained the demurrers filed by respondents O'Leary and the city of Olympia and, in its memorandum opinion, placed the ruling upon the ground that the complaint did not state facts sufficient to constitute a cause of action, for two reasons: (1) That there was an absence of allegation or showing in the complaint that the proceedings of the counsel were irregular; and (2), that the appellants could not maintain an action because they were not abutting property owners upon the portion of the street vacated. Appellants urge that the complaint stated a cause of action because it alleged that the petition for vacation was not signed by two-thirds of the abutting property owners. This finds its basis in the contention that the wives of the three petitioners should have signed the petition. No authority is cited to sustain this proposition. The argument is that, since the property of the signers is community property, that cannot be sold or incumbered without the signature of the wife, that no action can be taken by the manager of the community which adds to the rights and benefits of the community without it is coupled with the signature of the wife. But this contention does not seem sound. This is not a case where the title to real property is affected, or where the protection which the statute seeks to give a married woman by preventing a sale by her husband against her wishes is set aside, but is more nearly of the character of those cases where improvements of streets--paving, sidewalks, sewers, and gutters--are desired. It has always been the uniform practice to have petitions of that character signed by the manager of the community, and to hold otherwise is to add to the burdens of preparing and securing petitions for public improvements without any substantial benefit therefrom.

The allegation of fraud is not sufficient as a valid reason for setting aside the ordinance in question. We find no reasonable ground for complaint that respondents' attorney agreed that his clients would reconvey the vacated portion of the street, if the city should at any time require it. It appears that about one-fourth of the distance of Garfield avenue, between the two streets referred to, is on a grade of 4.7 per cent., and that it then shears abruptly to a grade of 25 per cent. for the rest of the block, making a street that is almost impossible of improvement. While dedicated for some 36 years as a public street, it has never been improved and, perhaps, never will be. Nor does the fact that counsel offered his services to the city free, in case of litigation over the passage of the ordinance, in any wise indicate fraud. Quite the contrary. We think our ruling on this point requires no argument in its behalf, and to state the issue is to argue it.

The really important question in this case revolves about the determination of whether a city council has the power, under the statute to vacate a strip of land 13 feet wide over the protest of appellants, and whether the damages, if any, to their property are such as to interfere with a vested right.

There can be no question but what, under our decisions, the power of vacation of streets and alleys or portions thereof belongs to the municipal authorities, and the exercise of that power is a political function which, in the absence of collusion, fraud, or the interference with a vested right, will not be reviewed by the court; and that one who suffers damages similar to those sustained by the public generally will not be heard to complain. Ponischil v. Hoquiam Sash, etc. Co., 41 Wash. 303, 83 P. 316; Freeman v. Centralia, 67 Wash. 142, 120 P. 886, Ann. Cas. 1913D, 786; Taft v. Washington Mutual Sav. Bank, 127 Wash. 503, 221 P. 604.

We think it also clear under the uniform weight of authority that one who is an abutting property owner upon a street or alley, any portion or the whole of which is sought to be vacated, has a special right and a vested interest in the right to use the whole of the street for ingress and...