Giles v. City of Olympia

• Decision Date: 15 April 1921
• Docket Number: 16237.
• Citation: 115 Wash. 428,197 P. 631
• Court: Washington Supreme Court
• Parties: GILES et al. v. CITY OF OLYMPIA.

197 P. 631

115 Wash. 428

GILES et al. v. CITY OF OLYMPIA.

No. 16237.

Supreme Court of Washington

April 15, 1921

Department 1.

Appeal from Superior Court, Thurston County; D. F. Wright, Judge.

Action by C. P. Giles and others against the City of Olympia. Judgment for plaintiffs, and defendant appeals. Affirmed.

William W. Manier and George R. Bigelow, both of Olympia, for appellant.

Troy &amp Sturdevant, of Olympia, for respondents.

HOLCOMB J.

The owners of five lots or tracts included in the local improvement district known as Local Improvement District No 263 of the City of Olympia appealed to the superior court from the final resolution of the city council of Olympia which included their properties within the local improvement district, and levied special assessments against the same. The improvement was initiated by the city council by resolution for the purpose of 'grading, graveling draining, constructing necessary culverts, sewers, bridges, and such other work as may be necessary in connection therewith,' Farragut avenue, and Farragut avenue extended, from Jackson street north to its intersection with West Bay avenue, and West Bay avenue north to the plant of the Buchanan Lumber Company. The roadway runs along the water front on the west shore of the bay. At the time fixed in the initiatory resolution of the council calling for protests against the proposed improvement, none of these respondents appeared before the council or in any manner objected to the making of the improvement. There was no attack made upon the legality of the proceedings, in and by the city council until the work had been completed, and the assessment roll prepared and submitted to the city council for confirmation. Respondents then appeared before the city council and filed objections upon the principal ground, as stated, that----

'The said premises comprising such West Bay avenue abuts upon and runs across said property. This property was granted to the city of Olympia upon the express consideration and condition that the said abutting property aforesaid was to be released, exempt and free, from any costs and assessments by way of grading, graveling, etc.; the said premises, consisting of the said street, was conveyed about 1891 or 1892, and the sole consideration therefor being the exemption of the aforesaid property of the plaintiffs from future cost and expenses by way of grading, graveling, etc., and the said premises having been expressly released by a written contract.'

Upon the hearing, upon appeal to the superior court, findings, conclusions, and decree were entered by the court, sustaining the objections of respondents, and decreeing that the assessments against respondents be canceled.

The city appeals, and urges that the decree of the superior court should be reversed upon the following grounds:

(1) The respondents, not having presented their objections to the city council at the time of the hearing on the initiatory resolution, are estopped from thereafter doing so.

(2) Where a right of way is already had by prescription, there is no consideration for an agreement to purchase a right of way, even though a greater width of roadway is given than existed by prescription.

(3) The dedication claimed in this case cannot be enforced for the reasons: (a) That the dedication or plat was not recorded; (b) that the city council had no statutory authority to enter into or accept any such condition; (c) that the decision of the lower court exceeds the terms of the reservation; and (d) a deed or other dedication of land to the public for use as a roadway containing a condition is void as to the condition; the grant stands, but the condition falls.

Respecting appellant's first contention, it is necessary to consider the situation in which respondents' rights were involved.

Prior to 1892 a trial or roadway of some description was traveled along the water front about 20 feet above the water, which was narrow, irregular, unimproved, and only in a passable condition. In 1892 the city council of Olympia, by negotiation with respondents and their predecessors, obtained a definite right of way for a street, to be called West Bay avenue, across the lands owned by respondents and their predecessors, of a sufficient width and course, caused it to be surveyed by the city engineer, and procured from them a deed describing the tracts of land to be included in the street, and in pursuance thereof a dedication was duly executed and acknowledged by the landowners. This instrument, which was attached to the plat, contained a recital:

'The landowners have consented to a survey of the premises by the city engineer of the city of Olympia.'

And also contained a waiver as follows:

'And we do hereby waive all claims for damages by reason of excavation or embankment resulting from the improvement of said West Bay avenue.'

Then follows a condition attached to the dedication, as follows:

'Provided, and this dedication is expressly conditioned, that the city of Olympia shall undertake, and from time to time improve, said avenue by grading and graveling the same, and the expense thereof shall be paid from the general tax of the city, and no part thereof shall be assessed against the property abutting any land hereby dedicated.'

Attached to the instrument was the city surveyor's certificate that he had surveyed the land, and that the courses and distances indicated on the plat and in the dedication are correct to the best of his knowledge and ability. There was also a certificate attached to the dedication that it was sufficient, signed by the city attorney and a certificate of the city clerk, as follows:

'This dedicatory plat of West Bay Avenue was approved by the city council of the city of Olympia on the 16th day of February, 1893.'

This instrument was never filed and recorded in the office of the county auditor.

The street was, however, opened and somewhat improved at about that time, by grading and building bridges, all of the value of more than $400. It has been continuously used as a public street ever since.

These respondents made no objection to the improvement of the street as proposed, under local improvement district No. 263, and it may be assumed that they were entirely willing that such improvement be made. Since they were not remonstrants against the establishment of the local improvement district, and the making of the improvement proposed, it was not incumbent upon them to appear before the city council and make any objections, or assert any of their rights until it was found that their premises were to be specially assessed for the improvement. This was not made known, and they could not object until the assessment roll was filed and notice of hearing thereon was given, when they appeared, set up their contract, and demanded compliance with its provisions. That was the proper time. In fact they or their predecessors had contracted with the city that the improvements should from time to time be made, and they were probably estopped to contest the making of the proposed improvements. This, however, does not conclude them as to their rights to object to the special assessments made for the improvement. In re Shilshole Ave., 85 Wash. 522, 148 P. 781.

The next contention of appellant, that where a right of way is already had by prescription there is no consideration for an agreement to purchase a right of way, even though a greater width of roadway is given than existed by prescription, is sought to be sustained by our decision in Olympia v. Lemon, 93 Wash. 508, 161 P. 363.

That was, in its inception, a condemnation case to acquire the right of way involved, and was converted into a suit to quiet title wherein it was determined that the roadway had been long established by prescription, and that the city had no need to condemn the land, and its title was quieted. It is not in point in this case. In this case the appellant is not attempting to acquire a right of way, for they proceeded upon the assumption that they aready had and owned the right of way, and the respondents acquiesced therein. Owning the right of way the city had a right to improve it. When it proceeds to improve it under the local improvement district law, assessing the special benefits to the abutting property, it is met with the contract made by itself previously to the effect that as to these properties it must, when improving the same by grading and graveling, pay the expense thereof from the general fund of the city, and no part thereof to be assessed against the property of these respondents.

The city contests that claim of respondents upon the grounds First, that the dedication or plat was not recorded; second, that the city council had no statutory authority to enter into such a contract; and, third, that the deed or other dedication of land to the public for a roadway containing a condition is void as to the condition, the grant...