Hester v. Thomson

• Decision Date: 30 April 1904
• Citation: 76 P. 734,35 Wash. 119
• Parties: HESTER v. THOMSON et al.
• Court: Washington Supreme Court

76 P. 734

35 Wash. 119

HESTER v. THOMSON et al.

Supreme Court of Washington

April 30, 1904

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Petition for a writ of mandate by R. M. Hester against R. H. Thomson and others. From a judgment dismissing the action, plaintiff appeals. Affirmed.

Wakefield & Petrovitsky and Ballinger, Ronald & Battle, for appellant.

M. Gilliam and John P. Hartman, for respondents.

HADLEY J.

Appellant brought this action against respondents, and seeks a writ of mandate to compel respondents to adjust the matter of appellant's application for a permit to erect a livery and feed stable, and to issue a permit to erect such building upon certain property, described as follows: Lots 1 and 4 in block 36 of C. D. Boren's Addition to the city of Seattle. An alternative writ of mandate was issued, and the respondents thereupon moved to quash the writ, for the reason that the petition does not state facts sufficient to constitute a cause of action. The motion was granted, and the appellant having elected to stand upon his petition, and declining to plead further, judgment was entered dismissing the action. This appeal is from that judgment of the superior court.

By the petition for the writ of mandate the following facts are made to appear: Section 478 of the Revised Ordinances of the city of Seattle is as follows: 'No building, any part of which is within the limits or within forty feet of the property of any adjoining owner, shall be erected for or converted to use as a stable, unless such use is authorized by the board of public health, after public hearing is had, after written notice to the adjoining owners, and after public notice, published at least three times and at least ten days before the hearing, in the city official paper.' The petition alleges a compliance with the above ordinance provision, and that, after a regular public hearing before the board of public health, that body granted the petitioner authority to erect the stable on the premises described. Section 446 of the Revised Ordinances of the city is as follows: 'When any person or corporation desires to erect, alter, repair, raise, lower or remove any structure within the corporate limits of the city of Seattle, before beginning any work on same, such person or corporation shall make formal application to the inspector of buildings for a permit to do the work, restoration of plastering or painting excepted. Such application must be filed at least two full days before a permit is issued, for first or second class buildings or other buildings in the fire limits, if required by the inspector.' It is alleged that, in pursuance of the above section, the petitioner filed his application with the inspector of buildings, together with the evidence of authority granted by the board of public health, as aforesaid, and also blueprint copies of the drawings and typewritten specifications of the proposed building, as by ordinance required, but that said officer refused to grant the permit. Section 451 of the Revised Ordinances is as follows: 'In case objections are filed against any structure to be erected, the same shall be referred to the board of public works, and the permit for doing the work shall not be issued, or if the same has been therefore issued, shall be considered as of no effect until the matter is adjusted by said board.' The petition further shows that the inspector of buildings refused to grant the permit for the reason that objections thereto have been filed, and that he referred the matter to the board of public works under the terms of the lastquoted section. It is alleged that thereafter a hearing was had before the board of public works, and that at said hearing no objections were made; that the plans and specifications of the proposed building do not comply with the building ordinances of the city; but that certain objections were filed and urged against the erection of a livery stable upon the premises described. It is further averred that the board of public works failed and refused to adjust the matter of said permit as required by section 451, supra, and that they have wrongfully, capriciously, and arbitrarily refused to grant the permit. The foregoing is a substantial statement of the essential facts appearing from the petition for the writ of mandate.

It is assigned that the court erred in holding that the petition does not state facts sufficient to constitute a cause of action, and also in holding that the acts of respondents, of which complaint is made, were discretionary. Appellant argues that, when an owner's absolute dominion over his property is restricted by ordinance, it should not be left to the arbitrary will of the governing authorities; that whether a certain use of property is a nuisance or not is a question which the owner has a right to have determind by judicial authority; and that the mere declaration of a local municipal board cannot preclude a judicial investigation as to the alleged nuisance. Many authorities are cited as supporting the above argument, but we do not deem it necessary to enlarge upon the points suggested therein, in view of the facts shown by the petition in this case, considered with reference to the ordinance provisions of...