Jones v. Gillis
| Decision Date | 09 October 1913 |
| Citation | 135 P. 627,75 Wash. 688 |
| Parties | JONES et ux. v. GILLIS et al. |
| Court | Washington Supreme Court |
Department 1. Appeal from Superior Court, Walla Walla County; Thos. H Brents, Judge.
Action by William Jones and wife against A. J. Gillis and others. Judgment for the defendants, and plaintiffs appeal. Affirmed.
T. P. & C. C. Gose, of Walla Walla, for appellants.
John F Watson, of Walla Walla, for respondents.
This action was brought by the plaintiffs to enjoin the city of Walla Walla from causing the sidewalks adjacent to the plaintiffs' property to be removed and new sidewalks laid at the expense of the owners of the property. The cause was tried to the court without a jury, and at the conclusion of the evidence the trial court dismissed the action. The plaintiffs have appealed.
The facts in the case are as follows: The appellants are the owners of lot 6, block 13, of the original town of Walla Walla. This lot has a frontage of 60 feet on Alder street and a frontage of 120 feet on Second street in said city. A three-story brick building is located upon this lot. Between the years 1875 and 1878 the city of Walla Walla instructed its surveyor to survey these streets, and establish grades on the same, and to prepare profiles thereof. This was accordingly done, and in the year 1878 the profiles of the grades of these streets were adopted by the city council, and filed in the office of the city clerk. Thereafter ordinances were passed by the city prohibiting the construction of sidewalks except as provided for in the ordinances, and requiring sidewalks to be built upon proper grades. An ordinance was also passed requiring the city surveyor to set grade stakes, and furnish information to property owners desiring to construct sidewalks around their property. The streets upon which this property abutted were used in their natural condition, and minor improvements were made thereon until the year 1904, when these streets were paved and improved with hard surface paving. In the year 1900 the appellants constructed a cement sidewalk along Second street in front of their property, and in the year 1903 a similar walk was constructed along Alder street. This was done at the private expense of the appellants. The grades of these streets were applied for prior to the construction of these sidewalks, and were furnished by the city engineer. But the appellants did not build their sidewalks upon the grades, but constructed the same some ten or perhaps twelve inches above the grades as established in 1878. When the streets were paved in 1904, they were paved upon the established grades. The sidewalks in front of the appellants' building on the two streets named were extended four feet into the street. This portion of the sidewalks is six inches above the gutter, about level with the crown of the street, and four feet wide. This strip of sidewalk four feet wide extends around the sidewalks built by the appellants, so that the sidewalks built by them are some ten or eleven inches higher than the sidewalk built by the city upon the grades. In the year 1912 the city commissioners of the city of Walla Walla served notice upon the appellants to construct these sidewalks to conform to the grades of the streets. This meant the destruction of the walks previously built by them, and the construction of a new walk ten or twelve inches lower than the present walk, which would interfere somewhat with the access to the appellants' building. The appellants refused to construct the sidewalk. Thereupon the city commission passed an ordinance creating an assessment district for the purpose of reconstructing these sidewalks around the building upon the grades of the streets as improved at the expense of the abutting property. This action was thereupon brought to restrain the city from doing the work.
The principal contention of the appellants is that the city of Walla Walla, having permitted the use of the streets in their natural condition for a long period of time, and having improved the same by minor repairs thereon, had adopted the natural condition of the streets as thus improved as the grades thereof, and that any change by the city of these grades as used was a change of the grades which made the city liable for damages to the abutting property. In the case of Wood v. Tacoma, 66 Wash. 266, at page 271, 119 P. 859, at pages 861, 862, we said: .' In Sargent v. Tacoma, 10 Wash. 212, 38 P. 1048, this court said:
In the present case it is conceded that in the year 1878 the city by resolution adopted the grades upon which this improvement was finally constructed. There is some contention on the part of the appellants that, because the city had authorized fills to be made in parts of the streets, and some macadam to be placed thereon, that was the actual establishment of the grades. The evidence is clear to the effect that these improvements were merely temporary so that the streets might be used in their then condition. The evidence is plain that the improvements made upon the streets prior to the laying of the hard surface pavement in 1904 was merely temporary, and without any idea of changing the grades which had theretofore been established. This being true, the mere fact that the streets were not permanently improved until 1904 cannot be held to have been a change in the grades. Rettire v. North Yakima, 134 P. 699.
There was some evidence introduced in this case to the effect that the city council in 1891 passed a resolution raising the grade on Second street six inches. The record, however, shows that the city engineer advised the council that the crown upon certain streets should be raised. The city council authorized the city engineer to make a profile showing the streets to be so raised, and report the same to the council. This appears never to have been done. The evidence shows that there was no intention on the part of the city council to change the grades upon which the sidewalks or the gutters in the streets should be made. It is plain, we think, that there was no intention on the part of the council to change the grades of the streets from the grades established in 1878.
A careful reading of the record convinces us that the great weight of the evidence is to the effect that the grades of these streets were of record, were established by resolution of the city authorities in 1878, that they have never been changed, and that the improvements upon the streets by the pavement thereof in 1904 was upon the regular established grades, and that the sidewalks around the appellants' building were constructed with notice and knowledge of the true grades, and were voluntarily placed ten of eleven inches higher than the true grades, in violation of the ordinances in force in the city at that time. We are satisfied upon the facts in the case that the trial court properly denied the injunction in this case, and that the city is authorized, under the law and the authorities hereinabove referred to, to proceed to require the sidewalks upon the streets around the appellants' building to be made to conform to the true grades of the streets as improved by the pavement of 1904.
The judgment is therefore affirmed.
I do not understand and of the physical facts to be as found by Judge MOUNT, but am willing to accept his statement as to the records of the city of Walla Walla except in this, that profiles of the grades of these streets were adopted by resolution in 1878. The record is that a profile had been prepared for Alder street in 1875, and for Second street in 1878. These were 'upon motion adopted.' No grade was ever formally established, and it is not plain to me that it was the intent of the city to adopt more than a subgrade when it adopted the profile; a critical consideration of the facts would indicate that it did not. The city has offered testimony to prove that during all these years the crown of the streets might...
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