Hagen v. City of Seattle

• Decision Date: 14 May 1959
• Docket Number: No. 34864
• Citation: Hagen v. City of Seattle, 339 P.2d 79, 54 Wn.2d 218 (Wash. 1959)
• Parties: Olaf HAGEN, Respondent, v. CITY OF SEATTLE, a municipal corporation, Appellant.
• Court: Washington Supreme Court

Page 218

54 Wn.2d 218

339 P.2d 79

Olaf HAGEN, Respondent, v. CITY OF SEATTLE, a municipal corporation, Appellant.

No. 34864.

Supreme Court of Washington, En Banc.

May 14, 1959.

Rehearing Denied Aug. 14, 1959.

A. C. Van Soelen, Frank W. Draper, Seattle, for appellant.

Merges & Brain, Seattle, for respondent.

HILL, Judge.

This is an action for property damage allegedly caused by the city of Seattle in the improvement of 23rd avenue southwest. The trial court directed a verdict against the city and submitted the issue of damages to the jury on special interrogatories. From the judgment entered upon the verdict and the answers to the interrogatories the city appeals.

The plat, covering the area with which we are here concerned, was recorded in 1888; and, by it, what is now 23rd avenue southwest was dedicated as a street sixty feet in width. It runs north and south, and the plaintiff's property has a fifty-foot frontage on the east side thereof. The portion of the street devoted to vehicular traffic was graded in 1915, but only about half the width of the street was brought to grade at that time.

The plaintiff's property rises steeply to the eastward from the graded portion of the street. A six-foot-wide city sidewalk is located two feet outside of the plaintiff's property line. From the sidewalk a bank rises ten feet in height within a horizontal distance of twelve feet, creating a slope that approaches forty-five degrees. From the top of this bank the plaintiff's property continues to rise, but on a lesser slope.

Outside the sidewalk was a berm, or shoulder, several feet in width. From the edge of this shoulder another forty-five-degree slope extended down to the graded and traveled street level ten feet below. This bank, below the sidewalk, and also the shoulder, the city sidewalk, and two feet of the bank above the sidewalk, were all within the dedicated street and east of the graded portion thereof.

In 1957, the city undertook to pave the graded portion of the street to a width of twenty-five feet, leaving a two-foot shoulder between the edge of the paving and the bottom of the bank which occupied the easterly part of the street.

In order to create the proper width, the city's contractor cut into the toe of the bank to a maximum distance of three feet, reshaping the bank to its original forty-five-degree slope. Soon afterwards an earthslide occurred on the plaintiff's uphill property. Although the city had not originally planned to do so, it then constructed a retaining wall to hold the bank in place. It appears that this retaining wall arrested any further sliding of the plaintiff's property. Concrete walks and steps had to be repaired by the plaintiff; it is also claimed that there has been structural damage to the plaintiff's house, and that the slide's occurrence, regardless of physical damage, impaired the value of the property.

The plaintiff's factual theory is that the cut made in the toe of the bank caused the slide. The trial court implicitly accepted this causation, as a matter of law, in directing a verdict for the plaintiff. While a good factual argument can be made in favor of this causation of the slide, it seems clear that reasonable minds could have differed on this point. Testimony from Edwin H. Lindstrom, who supervised the construction of the retaining wall, and Frank A. Elinich, who inspected the street excavations on behalf of the city, indicates that the amount of earth actually removed from this bank may have been inconsequential in terms of causing uphill slides, and that vibration from construction equipment working in the street may have been the cause. The cause of the slide was properly a question for the jury, and it follows that it was error for the trial court to have made its own factual determination on this point.

The city's legal theory is that its liability, if any, must be based upon negligence. The plaintiff's legal theory is that this was, in legal effect, an exercise of the city's power of eminent domain and that Art. I, § 16, of the Washington constitution requires just compensation to be paid for the damaging of his property irrespective of any fault on the city's part. Although the plaintiff also offered evidence of the city's negligence, the trial court accepted the plaintiff's eminent domain theory of the case as the basis for its directed verdict.

This, too, was error. Our decisions have uniformly held that the establishment of an original grade, or improvements made thereupon, does not constitute a taking or damaging of property as contemplated by Art. I, § 16. The right to make an original grade is implied in the dedication of the street, and, in the absence of negligence, the making or improvement of such an original grade can be neither a taking nor a damaging of private property. Fletcher v. City of Seattle, 1906, 43 Wash. 627, 86 P. 1046. (The original opinion in Fletcher v. City of Seattle, as here cited, is good law today, though the result was changed completely on rehearing (43 Wash. 631, 88 P. 843, because of a statute since repealed.) Ettor v. City of Tacoma, 1910, 57 Wash. 50, 106 P. 478, 107 P. 1061; Stern v. City of Spokane, 1913, 73 Wash. 118, 131 P. 476, 46 L.R.A.,N.S., 620; Schuss v. City of Chehalis, 1914, 82 Wash. 595, 144 P. 916; Hollenbeck v. City of Seattle, 1915, 88 Wash. 322, 153 P. 18; Fenton v. City of Seattle, 1925, 132 Wash. 194, 231 P. 795. See...