Lewis v. City of Seattle

• Decision Date: 17 February 1893
• Parties: LEWIS v. CITY OF SEATTLE.
• Court: Washington Supreme Court

32 P. 794

5 Wash. 741

LEWIS v. CITY OF SEATTLE.

Supreme Court of Washington

February 17, 1893

Appeal from superior court, King county; R. Osborn, Judge.

Action by Bessie J. Lewis against the city of Seattle for the value of land appropriated by defendant for a street. From a judgment in plaintiff's favor, defendant appeals. Reversed.

George Donworth and James B. Howe, for appellant.

Tustin Gearin & Crews, for respondent.

SCOTT J.

This is an appeal from a judgment recovered by the respondent for the value of certain real estate appropriated by the city of Seattle for a street. The action was commenced in January 1892, by the filing of a complaint, wherein the plaintiff alleged her ownership of such real estate on the 22d day of March, 1890; that the city had a charter from the territory of Washington (granted in 1886) up to October 10, 1890, at which time it adopted a "freeholders' charter," under the act of the legislative assembly of the state approved February 26, 1890; that on said 22d day of March 1890, said city, by its common council, passed ordinance No 1313, for the condemnation of such real estate as a street, in and by which ordinance all of said property was condemned and appropriated as a portion of Weller street; that thereafter, and pretending to act by virtue of said ordinance, and without paying or tendering plaintiff anything therefor, and without causing an assessment of plaintiff's damages caused thereby to be made, said city unlawfully and forcibly ousted plaintiff of her possession of said property, and entered into the possession of the same, and proceeded to and did grade the same as a street, and has thrown said property and the whole thereof open for the use of the public as a street, and completely deprived plaintiff of the use and enjoyment thereof, to her damage in the sum of $2,500. The city admitted the plaintiff's ownership of the property, except an alley running across the same, and admitted that in pursuance of said ordinance No. 1313 it had appropriated and taken possession thereof as a street, but denied that the value of such real estate exceeded the sum of $500, and denied that the plaintiff had been damaged in any sum whatever. It further set up two affirmative defenses, in the first of which it pleaded said ordinance No. 1313, which provided that due compensation should be made for said real estate in accordance with sections 11 and 101 of the charter of 1886, and that the amount of said compensation should be made a charge upon the lots and parcels of land embraced within an assessment district created under the authority of said charter, which provided for the appointment of three appraisers, one of them to be appointed by the mayor, one by the owner or owners of the property subject to assessment, and one by the owner or owners of the property condemned, whose duties were to find and report the value of the land taken and the value of the land in such district benefited, so that the cost of such improvements might be assessed thereon. It further alleged in said defense that proceedings were duly had accordingly under said charter and ordinance, up to and including the appointment of such appraisers, one of whom was appointed by the plaintiff, but that no meeting of said appraisers was ever held, and that they never made any assessment, report, or award; that the defendant stood ready to pay to the plaintiff such sum as should be ascertained by the appraisers when they should make an award. In the second defense it is alleged that the land condemned was a part of block 1 in Terry's Fifth addition to the city of Seattle; that, prior to said widening of Weller street at said point, block 1 of said addition projected into Weller street a distance of 23 feet; that both to the east and west of said block said Weller street was 66 feet wide, and that by reason of the projection of said block into the street there was a width of only 43 feet of street abutting upon said block, thereby making a jog in said Weller street by reason of the irregular and defective platting of said land in the original plat of said addition. It is further alleged that at the time of the passage of the ordinance, and ever since, the plaintiff has been the owner in fee simple of the whole of said block 1, except lot 6, and also of six other lots in the immediate vicinity described in the answer; that each and every of said lots of land is situated in blocks bordering on said Weller street in the immediate vicinity of said widening and improvement, and that the plaintiff derived special, direct, immediate, and great benefit through the condemnation of the land so taken by reason of the increased value of each and every of the lots mentioned consequent upon the said widening of the street, and that the special and peculiar benefit so derived from the widening of said street, not in common with the public generally, exceeded the value of said real estate so condemned. This condemnation took place after the adoption of the state constitution, but before the city organized under a freeholders' charter. Its charter of 1886 was in force, except as modified by the state constitution. Section 16, art. 1, of the constitution, provides that "no private property shall be taken or damaged for public or private use without just compensation having been first made or paid into court for the owner, and no right of way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation."

Appellant contends that the plaintiff cannot maintain a common-law action to recover the value of the property taken, as the proceedings were instituted and conducted under the charter of 1886, although the appraisers failed to act, and that she can only proceed by mandamus against the appraisers to compel them to proceed; that this is especially the case where, as in this instance, such payment is to be made out of a particular fund, as a recovery in this action would be a charge upon the whole city. Appellant further contends that, conceding this action can be maintained, the special and peculiar benefits derived by the plaintiff in consequence of the improvements can be offset against the value of the property taken for which the plaintiff seeks to recover. (She makes no claim for any damages to the remainder of the property, and her proofs were limited to the value of the land taken.) In Brown v. City of Seattle, (Wash.) 31 P. 313, and 32 P. 214, this court virtually held that under our constitutional provision, in exercising the right of eminent domain, payment must be made in advance in all cases. If this construction is to be adhered to, it follows that the provisions of the city charter relating to a postponement thereof were inoperative, for the constitution was in force when the plaintiff's land was appropriated. However, the city might have pursued the assessment scheme for the purpose of reimbursing itself. But this right to prepayment, if it existed, was a privilege which the plaintiff could and did waive. As to how far this waiver went there may be some question; but the most favorable claim upon the part of the appellant could only be that it had the effect of postponing the right of payment for such reasonable time as would allow the city to provide a fund therefor by the assessment plan which it had adopted. The right to prepayment is personal to the owner, and a failure to insist upon it would not necessarily invalidate the proceedings upon the part of the city. The plaintiff acquiesced in the appropriation, and permitted the city to proceed without first requiring payment. She affirmed the city's right to the land by bringing her action to recover compensation, and at least upon securing compensation the city's right to the land would become a vested one. Embury v. Conner, 3 N. Y. 511; Soulard v. St. Louis, 36 Mo. 546; Railway Co. v. Fechheimer, 36 Kan. 45, 12 P. 362; Lawrence v. New Orleans, 12 Rob. (La.) 453; Railway Co. v. Donahoo, 59 Tex. 128; Mayor v. Perkins, 30 Ga. 154. But, treating the acquiescence of the plaintiff in this matter as a consent upon her part that the city might appropriate the land and provide a fund for her compensation in the way it was attempting to do, could she thereafter, under the circumstances of this case, maintain such an action as she instituted, or must she have proceeded by mandamus to enforce the prosecution of the special proceeding?

In support of its contention appellant cites Paret v Bayonne, 40 N. J. Law, 333. In that case, however, under the language of the decision, it seems that the city had no power to appropriate lands for streets except by making the damages a charge upon the lands specially benefited. It would not apply here, in the absence even of the constitutional provision, as section 5 of the charter of 1886 empowered the city of Seattle to condemn lands for streets, and to collect the necessary amount to pay therefor by a general tax. It could proceed in this way, or could collect the same by an assessment upon the lands benefited under sections 11 and 101 of said charter, which it did undertake to do. Appellant argues that it had performed its duties in the premises, and was no more in default than was the respondent; that the default was upon the part of the appraisers; and that an action against the city could not be founded upon the failure of the appraisers to act. To show that the plaintiff could have proceeded by mandamus, appellant quotes a clause contained in the freeholders' charter, which is as follows: "The adoption of this charter shall not operate to abate or...