Kemp v. City of Seattle, 21216.

Decision Date25 September 1928
Docket Number21216.
Citation270 P. 431,149 Wash. 197
PartiesKEMP v. CITY OF SEATTLE.
CourtWashington Supreme Court

Department 2.

Appeal from Superior Court, King County; James B. Kinne, Judge.

Action by G. Ward Kemp against the City of Seattle. From a judgment dismissing the action, plaintiff appeals. Affirmed.

G. Ward Kemp, of Seattle, for appellant.

Thomas J. L. Kennedy and J. Ambler Newton, both of Seattle, for respondent.

MAIN, J.

This action was brought to restrain the defendant city, acting through its city council, from vacating a portion of a certain street. The cause was tried to the court without a jury and resulted in a judgment dismissing the action, from which the plaintiff appeals.

The facts are these: The plat of the Pontius second addition to the city of Seattle was filed for record March 1, 1882. Through this plat from east to west one of the streets is East John street. The plat of Crawford's addition to the city of Seattle was filed for record March 29, 1882. On the west side of this plat was a street now known as Boylston Avenue North. On the north side of the plat was a street designated East John street. The south line of East John street to the east of Boylston Avenue North is some feet north of the north line of East John street to the west of Boylston Avenue North. The result was at this point a jog in East John street. The appellant owns lots 9 and 10 in Crawford's addition; the latter lot being the northwest lot of the plat. The west line of these lots coincides with the east line of Boylston Avenue North. They are directly across the street to the east from the east end of East John street, which is west of Boylston Avenue North. The east end of this street coincides with the west line of Boylston Avenue North. Without mentioning the dates, the city has laid out and constructed what is called Olive way, which comes from the southwest, crosses East John street west of Boylston Avenue North, takes a portion of appellant's lot 10 and a portion of the property across the street. Olive way is one of the principal thoroughfares leading from the business section of the city to the residence district to the east. The city is proposing to vacate the south 20 feet of East John street to the west of Bolyston Avenue North and to the east of Olive way. To this the appellant objects because it will interfere with the view which his property now has to the west.

The question is whether appellant's property abuts upon the east end of East John street which coincides with the west boundary line of Boylston Avenue North, which is a street 26 feet wide.

A property owner whose property does not abut upon a portion of a street which it is proposed to vacate or which is obstructed has no right of action to restrain the vacation or prevent the obstruction, unless the access to his property is interfered with and he suffers a special or peculiar damage differing in king from that of the general public. In Freeman v. Centralia, 67 Wash. 142, 120 P. 886, it was said:

'It is contended that appellants have a right to the use of the streets upon which their property abuts for its entire length, and are entitled to compensation as abutting owners if any part of the street is vacated. Authority upon the particular proposition advanced is divided; but this court has, in several cases, aligned itself with the great majority of American courts in holding that a property owner does not come within the rule of compensation unless his property abuts upon or touches that part of the street which is actually vacated, or a special or peculiar damage is made to appear; or, to state the proposition in its elementary form unless his injury differs in kind rather than in degree from that suffered by the general public.' The cases of Ponischil v. Hoquiam Sash, Etc., Co., 41 Wash. 303, 83 P. 316, and Mottman v. Olympia, 45 Wash. 361, 88 P. 579, are to the same effect.

With reference to light and air, the rule is that a property owner whose property does not abut upon the portion of the street or alley sought to be vacated has no right to complain because of the shutting off of light and air from his property. In Taft v. Washington Mutual Sav Bank, 127 Wash. 503, 221 P. 604, after an extensive review of the authorities, it was said:

'Under the above authorities, we conclude that the correct rule is that only those directly abutting on the portion of the street or alley vacated, or alleged to be obstructed, or those whose rights of access are substantially affected, have such a special interest as to enable them to maintain an action. The further rule, deducible from our own cases and the authorities generally, is that owners of property abutting on a street or alley have no
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23 cases
  • Williams Place, LLC v. State
    • United States
    • Washington Court of Appeals
    • 14 d2 Abril d2 2015
    ...words, a property abuts if “the lot line and street line are in common.” Id. at 684–85, 937 P.2d 1309 (citing Kemp v. City of Seattle, 149 Wash. 197, 201, 270 P. 431 (1928) ).¶ 35 It is undisputed in this case that the Chipman Trail lies between Williams Place's property and the state highw......
  • Burrow v. Davis, 5945
    • United States
    • Texas Court of Appeals
    • 21 d1 Novembro d1 1949
    ...Co. v. City of St. Louis, 326 Mo. 273, 30 S.W.2d 995; Dickson v. Town of Centreville, 157 Miss. 490, 128 So. 332; Kemp v. City of Seattle, 149 Wash. 197, 270 P. 431; Kahn v. City of Houston, 121 Tex. 293, 48 S.W.2d 595; 13 R.C.L. page 75; Sigel v. Buccaneer Hotel Co., Tex.Civ.App., 50 S.W.2......
  • Hanson v. City of Omaha
    • United States
    • Nebraska Supreme Court
    • 10 d5 Julho d5 1953
    ...elementary form, unless his injury differs in kind rather than in degree from that suffered by the general public. See, Kemp v. City of Seattle, 149 Wash. 197, 270 P. 431; Hartwell Iron Works v. Missouri, K. T. R. Co., Tex.Civ.App., 56 S.W.2d In Wilson v. Kansas City, Mo.Sup., 162 S.W.2d 80......
  • State v. Wineberg
    • United States
    • Washington Supreme Court
    • 29 d4 Agosto d4 1968
    ...of compensation). See, Capitol Hill Methodist Church of Seattle v. Seattle, 52 Wash.2d 359, 324 P.2d 1113 (1958); Kemp v. Seattle, 149 Wash. 197, 270 P. 431 (1928); Freeman v. Centralia, 67 Wash. 142, 120 P. 886 (1912); In re Fifth Ave. & Fifth Ave. South, Seattle, 62 Wash. 218, 113 P. 762 ......
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