In re Twenty-Second Ave. Southwest

• Decision Date: 13 February 1913
• Citation: 72 Wash. 99,129 P. 884
• Parties: In re TWENTY-SECOND AVE. SOUTHWEST. v. MOELLER. CITY OF SEATTLE
• Court: Washington Supreme Court

129 P. 884

72 Wash. 99

In re TWENTY-SECOND AVE. SOUTHWEST.

CITY OF SEATTLE v. MOELLER.

Supreme Court of Washington

February 13, 1913

Department 2. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Proceeding by the City of Seattle against William Moeller for the improvement of Twenty-Second Avenue Southwest, in the City of Seattle. From a judgment setting aside the assessment roll the city appeals. Affirmed.

Jas. E. Bradford and Wm. B. Allison, both of Seattle, for appellant.

Bostwick & Steele, of Seattle, for respondent.

MAIN J.

This is an appeal by the city of Seattle from a judgment of the superior court of King county, setting aside an assessment roll for local improvement district No. 2497, for the improvement of Twenty-Second avenue southwest. The property within the confines of the district is owned by William Moeller, the Coryell Investment Company, a corporation, and the Westerman Iron Works, a corporation. There was exempted and excepted from the assessment roll a strip of land 60 feet wide extending across the entire width of the district. The sole question involved in this appeal is whether this 60-foot strip is private property or a public highway.

Some time during the year 1875, certain persons living in proximity to the property now confined within the limits of the assessment district, and others living more remote therefrom, desired that a county road be laid out and established, starting from a certain fir tree located on what is known as Alki Point, and extending by a somewhat circuitous route in a general southeasterly direction toward the then suburb of the city of Seattle, known as Georgetown. To this end a petition was prepared and presented to the board of county commissioners of the county of King requesting that road No. 51 be laid out and established over the route indicated. The county commissioners took no steps to acquire title to the property over which the proposed highway should pass, either by a condemnation proceeding or by receiving conveyances therefor. At least as to that portion of road No. 51 involved in this proceeding, nothing further appears to have been done until the fall of the year 1895, when it was opened for traffic; and from that time until August, 1904, more or less traffic passed over that portion of the route of the proposed highway which is involved in this proceeding. August 12, 1904, the respondent, William Moeller, purchased property which he now owns within the district, and immediately thereafter began the erection of a house thereon, which stood in the path of the highway; and he also erected, or caused to be erected, fences across the proposed highway, permitting the public, however, to pass through by means of gates. During the earlier part of the year 1904, notices had been posted upon the property in question, which declared it to be private property. On March 17, 1905, the respondent, Moeller, together with a number of other persons owning property in the vicinity, and certain persons who were not property owners therein, petitioned the county commissioners for the vacation of certain portions of proposed road No. 51, including that portion involved in this proceeding. The petition was denied.

During the year 1907, the boundaries of the city of Seattle were extended so as to include the property now within assessment district No. 2497. The strip of land exempted from assessment by the assessment roll is that over which proposed road No. 51 passed. This 60-foot strip has continuously been assessed for general taxes; and such taxes have been paid. It has also been assessed by the city of Seattle, a number of times, for certain local improvements.

In the trial court, the parties to this proceeding entered into a stipulation by which tne issues...