In re Shilshole Ave.

• Decision Date: 08 February 1917
• Docket Number: 13750.
• Citation: 162 P. 1010,94 Wash. 583
• Court: Washington Supreme Court
• Parties: In re SHILSHOLE AVE. v. CITY OF SEATTLE. BOLCOM MILLS, Inc., et al.

162 P. 1010

94 Wash. 583

In re SHILSHOLE AVE.

BOLCOM MILLS, Inc., et al. v. CITY OF SEATTLE.

No. 13750.

Supreme Court of Washington, En Banc.

February 8, 1917

Appeal from Superior Court, King County; Walter M. French, Judge.

Proceedings by the City of Seattle for special assessments on certain lots of Bolcom Mills, Incorporated, for special benefits accruing by change of grade of Shilshole Avenue. From the action of the city council, the owners appealed; and, from the judgment of the superior court, the city appeals. Affirmed.

Ellis C.J., and Morris and Main, JJ., dissenting.

Hugh M. Caldwell and Howard A. Hanson, both of Seattle, for appellant.

Donworth & Todd, Higgins & Hughes, J. P. Wall, and W. W. Wilshire, all of Seattle, for respondents.

HOLCOMB J.

In this matter about 60 individuals and companies, upon whose property the assessment involved had been laid by the city under an Ordinance No. 30,389, for the special benefits by the physical filling and other improvements of Shilshole avenue and other streets, avenues, and approaches thereto appealed to the superior court from the action of the city council in confirming the special assessments against their lands. As to these property owners, who are the respondents here, the judgment of the superior court either reduced in amount or wholly canceled the assessments that had been confirmed against their respective properties. The property owners all acquiesced in the judgment of the superior court although that judgment confirmed the assessments against many lots which were the subject of contest in the court below and merely reduced many other assessments which the property owners contend should have been wholly canceled.

The proceeding is under the local improvement statute of 1911 (Laws 1911, p. 441, now embodied in 3 Rem. & Bal. Code, §§ 7892-1 to 7892-72). In a former case, In re Shilshole Avenue, 85 Wash. 522, 148 P. 781, involving an assessment roll made in eminent domain proceedings by the eminent domain commissioners of the city of Seattle to pay the damages resulting from the raising of the grade of Shilshole avenue and the incidental change of the grades of other streets and avenue and approaches thereto, will be found a succinct statement of most of the conditions and situations existing in this proceeding as shown by the record, and an announcement of the law as to certain questions involved therein and which seem to be involved in this appeal. The entire record in that case, including the decision and remittitur from this court, were introduced in this case. The trial judge who tried the former proceeding also tried this and, in determining the matters involved in this case, deemed that he was following the law of the case as settled by the decision in the former case as to the question of special benefits involved by this improvement.

Ninety-five errors are assigned by appellant in this case, but they are reducible to two principal questions, which are urged by the appellant in argument. They are these: (1) The effect in this case of the findings of fact in the condemnation assessment hearing which was involved in the former appeal; (2) the legal status created between Seattle and the lot owners by the King county canal judgment on verdicts.

It is first vigorously contended that the determination of necessity for and the character of the improvements is a legislative function to be, and which was, determined by the legislative authority of the city. In this respect the city contends that the physical grading of these streets and approaches was determined as a matter of necessity by the city, and that it was determined to have been necessary to grade the streets and approaches to certain heights above flooding for the purpose of sewering the property involved, and that the sewering of the abutting property required filling to such elevations. This theory the lower court rejected. The city also contends that it acquired the right to make such fills by an eminent domain proceeding under Ordinance No. 29,834, pursuant to the act of 1907 (Laws 1907, pp. 321, 325, §§ 15, 23) as amended by the act of 1909 (chapters 210 and 211, Laws 1909, pp. 723, 724 [Rem. & Bal. Code, §§ 7782, 7790]). That was the proceeding which was involved in the former appeal. In that case an assessment roll was prepared by the eminent domain commission, assessing the property assumed to be specially benefited to defray the costs of the improvement. Upon that hearing certain findings were made, conclusions of law entered, and the assessment roll was set aside and the matter referred to the commission with instructions to prepare a new roll. Cross-appeals were taken. The city took no exceptions to the findings of the trial court. The judgment was reversed, with instructions to cancel the assessments. See In re Shilshole Avenue, supra. A petition for rehearing, setting forth, among other points, that an order setting aside an assessment roll and directing the preparation of a new roll was not a final order and that this court had no jurisdiction thereof, was denied. Following this, the lower court entered an order canceling all eminent domain assessments and barring the city from levying any eminent domain assessments against any property involved in the first appeal. In this proceeding the trial court held that the findings, judgment, and remittitur of this court which were admitted in evidence were res adjudicata as to the parties and the issues involved therein; and the city is certainly one of the parties involved therein. Much of the reasoning in that case might with profit be reiterated here, as decisive of much of this controversy.

His honor ruled throughout that the determination of the city council that the improvement was necessary was binding upon the court and all parties, so far as concerned any attempt to stop the improvement or to interfere with the perfect freedom of the city to make or not to make it. In determining the further question, viz. whether the abutting property was benefited by the improvement, he held that this was a question of fact to be determined by the court from the evidence and giving due weight and consideration to the presumptions raised by the acts of the city. The statutes referred to, relating to such local improvements, provide for an assessment roll, and require the city council to sit as a board of equalization for the purpose of considering such roll, and to correct and revise it and to confirm it by ordinance. In case objections were filed by any property owners, the council is required to consider and pass upon such objections. Section 22 of that act of 1911 (Laws 1911, p. 453, § 22; 3 Rem. & Bal. Code, § 7892-22) provides that the decision of the council or other legislative body upon any objections made within the time and in the manner prescribed by the act may be reviewed by the superior court upon appeal taken thereto. A trial of the matter by the court without a jury is provided. It is also provided that the judgment of the superior court shall confirm, correct, modify, or annul the assessment in so far as the same affects the property of the appellant. It makes no provision for referring the matter back to the city council. It seems that the appeal vests the superior court with plenary jurisdiction of the whole question of special benefits. The city seemed to contend, and seems to contend here, that the fact that the city has the legal right to determine at what grade it shall improve the streets deprives the court of power to consider the question of special benefits on the trial of the statutory appeal. The trial court proceeded upon the theory that, in determining the question of benefits, he must be governed by the evidence as to the character of the abutting property claimed to be specially benefited, having due regard to existing circumstances and requirements and those reasonably to be anticipated. He did not question the finality of the city council's decision of the necessity of the improvement; but, when the city claimed that that determination was conclusive evidence of the benefits to the particular property involved, and that the particular grade established by the city was necessary for the use and development of the abutting property, he refused to be bound by the legislative declaration of the necessity for the improvement as a determination of the benefits to accrue to the abutting property. In other words, he tried the case upon the theory that the statutory appeal provided by the law required him to examine into the facts as to the benefits to accrue to the property involved and determine the matter accordingly, and upon this theory he disposed of the case.

In so disposing of the case appellant claims that he 'fixed a judicial grade,' substituting it for the legislative grade established by the city authorities. What the trial court did, in substance, was to hold that the city had the undoubted right to raise the grade of streets to any height that it desired within reason, but an abutting property owner would be specially benefited by elevating the streets any more than to place them in a dry and usable condition above the height to which the water would be raised by the construction of the Lake Washington Canal, following the finding sustained in Re Shilshole Avenue, supra. In doing so he grouped the properties according to the conditions shown to exist, and as to the streets which had before been graded he canceled the assessments; as to streets which were before ungraded, he directed that computations and estimates be made of the cost of filling to elevations of 9.5 feet above city datum, to which height the city had acquired the right to flood on account of the necessities of the Lake Washington...