Kaufman v. Tacoma, O. & G.H.R. Co.

• Decision Date: 17 April 1895
• Citation: 40 P. 137,11 Wash. 632
• Court: Washington Supreme Court
• Parties: KAUFMAN ET UX. v. TACOMA, O. & G. H. R. CO.

40 P. 137

11 Wash. 632

KAUFMAN ET UX. v. TACOMA, O. & G. H. R. CO.

Supreme Court of Washington

April 17, 1895

Appeal from superior court, Thurston county; W. H. Pritchard, Judge.

Action by G. Kaufman and wife against the Tacoma, Olympia &amp Gray's Harbor Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed.

Dunbar J., dissenting.

Ashton & Chapman, for appellant.

John R Mitchell, for respondents.

SCOTT J.

The plaintiffs were owners of a certain tract of land abutting on Seventh street, in the city of Olympia, and had a residence thereon; and they brought this action for damages, against the defendant, for constructing its line of railway along said street. The grounds of damages alleged are, in substance, that the defendant cut a deep tunnel along said street, adjacent to the plaintiffs' premises, and constructed a railway through the same, and covered the said tunnel with timbers and plank, for the purpose of making a roadway along said Seventh street for public travel, thereby raising the grade of said street several feet above the grade that had been previously established by the city of Olympia and leaving plaintiffs' lots at a depth of several feet below the top of said covered way, and that, in the running of trains through said tunnel, great quantities of smoke and sparks from the engines are thrown off, and that the noise produced by the trains is very great, whereby the residence of the plaintiffs is endangered, and rendered unsafe and uncomfortable, and the value of their said property greatly impaired and lessened. The defendant answered, denying certain of the material matters alleged in the complaint, and pleaded, by way of an affirmative defense, that it was a railroad corporation duly organized under the laws of this state; that the city of Olympia was and is a municipal corporation created and existing under and by virtue of an act of the legislature of the territory (now state) of Washington, entitled "An act incorporating the city of Olympia," approved November 28, 1883, and under and by virtue of the laws of said state,-and, among other things, alleged that the city of Olympia had granted to the defendant the right to construct, equip, maintain, and operate its line of railroad over, along, through, across, and under certain streets and alleys in said city, which included the street in controversy, and that the defendant had in all respects complied with the terms and conditions of said ordinance, and that by the construction and maintenance of the roadway, and the construction of said tunnel, the plaintiffs' property had been drained, and otherwise greatly benefited. A demurrer was interposed to this affirmative defense, which was sustained by the court. A trial was had, and verdict and judgment rendered for the plaintiffs, from which the defendant has appealed.

It is contended that the court erred in sustaining the demurrer to this affirmative defense. By section 5 of its charter, the city of Olympia was granted exclusive control of all streets within its limits. By section 10 it was empowered to authorize or prevent the location and laying down of railway tracks and street railways on all streets, alleys, and public places; and this and other sections of the charter authorized the city, in case of the grading or improvement of streets, to assess the benefits against the contiguous property. The railroad was constructed after the adoption of the state constitution, which provides that damages shall be assessed for taking or damaging private property, irrespective of benefits, except in the case of municipal corporations. If the railroad company had appropriated or damaged any land of the respondents, it could not have offset any benefits accruing to them; but in case the city should change the grade of, or improve, a street, it could offset benefits against any damages suffered by the parties interested. The charter provided that, before private property should be taken or damaged, the damages should be ascertained and paid, and the constitutional provision aforesaid was to the same effect. This was not done, but the respondents saw fit to allow the work to proceed without attempting to restrain the performance of it, or to recover damages prior to its completion, and thus waived payment in advance, and were confined to their right to bring an action to recover. In enacting said ordinance the city made no provision for the payment, by the railroad company or otherwise, of any damages that might be caused thereunder to abutting property. We are of the opinion, however, as the change of grade was made upon the railroad company's motion, and for its benefit, that the fair inference to be drawn therefrom is that the railroad company was to be responsible therefor. In asking the change, and accepting the rights conferred, it should be held to have assumed all liability for damages occasioned thereby. But what was the measure of its liability? The material question is, was any greater burden imposed upon it, in this particular, than rested upon the city? We think not. No land of the respondents was directly appropriated in building the road, as the land used was and continued to be a street.

It was a contested question upon the argument of the case whether the fee to land occupied for...