In re City of Seattle

• Decision Date: 25 August 1909
• Citation: 54 Wash. 460,103 P. 807
• Parties: In re CITY OF SEATTLE. v. SEATTLE ELECTRIC CO. CITY OF SEATTLE
• Court: Washington Supreme Court

103 P. 807

54 Wash. 460

In re CITY OF SEATTLE.

CITY OF SEATTLE v. SEATTLE ELECTRIC CO.

Supreme Court of Washington

August 25, 1909

Department 1. Appeal from Superior Court, King County; Arthur E Griffin, Judge.

Proceedings by the City of Seattle for the widening of Third Avenue, in which the Seattle Electric Company filed objections to an assessment against it for alleged benefits. From an order overruling the same and confirming the assessment, it appeals. Reversed, with directions.

See also, 97 P. 444.

James B. Howe and Hugh A. Tait, for appellant.

Scott Calhoun and King Dykeman, for respondent.

GOSE, J.

The respondent instituted this proceeding for the purpose of widening Third avenue, in the city of Seattle, from the north line of Yesler Way to the south line of Park street. A trial was had for the purpose of ascertaining the compensation to be made for the property taken and damaged. Thereafter the board of eminent domain commissioners, to whom the matter was referred, prepared an assessment roll for the purpose of creating a fund with which to pay the damages awarded. The board, inter alia, assessed the appellant's 'right of way, right of occupancy, franchise, and interest in Third avenue in the city of Seattle' in the sum of $8,365 for alleged benefits incident to the widening of the avenue. The appellant in due time filed its written objections to the assessment, raising numerous questions touching its validity all of which the court overruled, and entered a judgment confirming the assessment, from which this appeal is prosecuted.

The view we take of the case limits our inquiry to the single question, viz., was the assessment as to the appellant's franchise authorized by statute? The respondent relies upon Laws 1907, p. 316, c. 153, to support the judgment. The appellant owns and operates an electric railway on certain streets in the city of Seattle, including Third avenue, under a franchise which consists of the right to 'locate, lay down and maintain tracks, conduits and all necessary equipment of every sort, and to erect poles and string wires for street railways, and to construct, maintain and operate a system of street railways within in the city of Seattle along the routes [specified in Ordinance No. 5,874], and to carry passengers, mails and freight thereon, and to charge and collect fares and freight therefor.' The former law on this subject (Laws 1893, p. 197, c. 84, § 22 [1 Ballinger's Ann. Codes & St. § 796; Pierce's Code, § 5070]), provided that commissioners should 'assess the amount so found to be of benefit to the property upon the several lots, blocks, tracts and parcels of land in the proportion in which they will be severally benefited by such improvement.' In City of Seattle v Seattle Electric Company, 48 Wash. 599, 94 P. 194, 15 L R. A. (N. S.) 486, the city of Seattle sought to assess this franchise as 'right of way and trackage' in a certain district which it was then improving. In considering the question of its power to do so under the statute quoted, this court, speaking through Fullerton, J., said: 'A reading of this section makes it at once apparent that the commissioners are authorized to assess only lots, blocks tracts, and parcels of land specially benefited to pay the cost of a street improvement, and unless the respondent's interests in this street can be held to be one or the other of these there is no authority for the charge the commissioners sought to impose upon it. It seems to us that it cannot be so held. The respondent's right in the street is in no sense a lot, block, tract, or parcel of land. It does not own the fee of the street over which its tracks are laid and its cars operated, nor does it have dominion or control over that portion of the street. On the contrary, the fee of the street rests in the abutting property holders, to whom it will revert when the interests of the public therein cease from any cause, and dominion and control over it is vested in the public authorities, in whom it will remain as long as the street retains its public character. The respondent's rights therein are such, and only such, as these public authorities have conferred, and are, roughly speaking, the right to construct and maintain for a limited time a railway track on a fixed portion of the street, and the right to operate cars on such track, for the purpose of carrying passengers and freight for hire. This does not constitute either a lot, block, tract, or parcel of...