Motoramp Garage Co. v. City of Tacoma

• Decision Date: 27 November 1925
• Docket Number: 19511.
• Citation: 136 Wash. 589,241 P. 16
• Parties: MOTORAMP GARAGE CO. v. CITY OF TACOMA et al.
• Court: Washington Supreme Court

241 P. 16

136 Wash. 589

MOTORAMP GARAGE CO. v. CITY OF TACOMA et al.

No. 19511.

Supreme Court of Washington

November 27, 1925

Department 2.

Appeal from Superior Court, Pierce County; Teats, Judge.

Action by the Motoramp Garage Company against the City of Tacoma and another. Judgment for the defendants, and plaintiff appeals. Reversed, with directions.

Stiles & Latcham and H. G. & Dix H. Rowland, all of Tacoma, for appellant.

E. K Murray, Leo Teats, and Lorenzo Dow, all of Tacoma, for respondents.

MACKINTOSH J.

The appellant has a long term ground lease on four lots situated near the business center of the city of Tacoma, and has constructed thereon a 7-story building with storerooms facing on the abutting streets. Along one side of the building, on a street which has a grade of 14 per cent., there is a concrete sidewalk 12 feet wide, under which the respondent is attempting to construct a public men's toilet or comfort station by occupying a space under the sidewalk 12 feet wide and 40 feet long, the entrance to which is by means of a stairway leading down from the sidewalk next to the building, this entrance to be 2 1/2 feet wide by 14 feet long, and to be in front of some small windows which light a ramp inside of the building, thus not interfering in any way with any showroom inside the building or entrance to the building as now constructed. The appellant instituted this action to enjoin the city from this construction, and being unsuccessful below, has appealed.

It has been determined in this state on numerous occasions that the fee in streets dedicated to the public remains in the abutting landowner. Schwede v. Hemrich Bros. Brewing Co., 29 Wash. 21, 69 P. 362; Seattle v. Seattle Electric Co., 48 Wash. 599, 94 P. 194, 15 L. R. A. (N S.) 486; Seattle v. Seattle Electric Co., 54 Wash 460, 103 P. 807; Gifford v. Horton, 54 Wash. 595, 103 P. 988; Brazell v. Seattle, 55 Wash. 180, 104 P. 155; Simons v. Wilson, 61 Wash. 574, 112 P. 653; Gray v. Ramsay, 117 Wash. 255, 200 P. 1074, 204 P. 4.

This fee ownership of the street, of course, is subject to the easement existing in the public by which it is entitled to use the street as a highway. Barclay v. Howell, 6 Pet. 498, 8 L.Ed. 477; Kansas Natural Gas Co. v. Haskell (C. C.) 172 F. 545; Elliott, Roads and Streets, § 876. That the abutting owner has the right to enjoin the unlawful use of the street has been decided by this court in Schwede v. Hemrich Bros. Brewing Co., 29 Wash. 21, 69 P. 362; Brazell v. Seattle, 55 Wash. 180, 104 P. 155; Smith v. Centralia, 55 Wash. 573, 104 P. 797; Sholin v. Skamania Boom Co., 56 Wash. 303, 105 [136 Wash. 591] P. 632, 28 L. R. A. (N. S.) 1053; State ex rel. Sylvester v. Superior Court, 60 Wash. 279, 111 P. 19; Simons v. Wilson, 61 Wash. 574, 112 P. 653; Humphrey v. Krutz, 77 Wash. 152, 137 P. 806; Cunningham v. Weedin, 81 Wash. 96, 142 P. 453; Reed v. Seattle, 124 Wash. 185, 213 P. 923, 29 A. L. R. 446; Dillon, Municipal Corporations (5th Ed.) § 1134.

The question to be determined is the limitation upon the public's easement to what character of use the street may be put. The extent of the public's use of the street is probably as well defined by the court in Commonwealth v. Morrison, 197 Mass. 199, 83 N. E. 415, 14 L. R. A. (N. S.) 194, 125 Am. St. Rep. 338, as in any authority which is available. The court said:

'The public acquire by the location of a highway an easement of passage, with all the powers and privileges, which are necessarily implied as incidental to the exercise of this right. The easement is coextensive with the limits of the highway. The fee of the land remains in the landowner, who may make any use of it not inconsistent with the paramount right acquired by the public. Como v. Worcester, 177 Mass. 543, 59 N.E. 444. The easement which the public acquires includes every reasonable means of transportation for persons, and commodities, and of transmission of intelligence which the advance of civilization may render suitable for a highway. Under this description of the character of rights acquired by the public, gas and water pipes, sewers, telephone, telegraph, electric light and power poles, wires and conduits, electric and horse railways, the Boston subway and private railroads have been permitted.'

Uses beyond those defined as connected with the transportation of persons or commodities have been attempted at various times and in various places, and the courts with practical unanimity have restrained such additional servitude and prevented municipalities as well as individuals from attempting to make use of streets and highways for purposes not connected with transportation. In the following decisions we find that various uses have been prevented. Tell City v. Bielefeld, 20 Ind.App. 1, 49 N.E. 1090 (public scales); City of Richmond v. Smith, 148 Ind. 294, 47 N.E. 630 (public market); Field v. Barling, 149 Ill. 556, 37 N.E. 850, 24 L. R. A. 406, 41 Am. St. Rep. 311 (bridge over an alley); Commonwealth v. Morrisson, 197 Mass. 199, 83 N.E. 415, 14 L. R. A. (N. S.) 194, 125 Am. St. Rep. 338 (lunch wagon); Barrows v. City of Sycamore, 150 Ill. 588, 37 N.E. 1096, 25 L. R. A. 535, 41 Am. St. Rep. 400 (water stand pipe); McIllhinny v. Trenton, 148 Mich. 380, 111 N.W. 1083, 10 L. R. A. (N. S.) 623, 118 Am. St. Rep. 583, 12 Ann. Cas. 23 (electric light plant); City of Morrison v. Hinkson, 87 Ill. 587, 29 Am. Rep. 77 (water tank); Haberlil v. Boston, 190 Mass. 358, 76 N.E. 907, 4 L. R. A. (N. S.) 571 (voting booth); Spencer v. Mahon, 75 S.C. 232, 55 S.E. 321 (moving cafe); Galloso v. City of Sikeston, 124 Mo.App. 380, 101 S.W. 715 (street vendor's stand); Wright v. Austin, 143 Cal. 236, 76 P. 1023, 65 L. R. A. 949, 101 Am. St. Rep. 97 (well to sprinkle road); Branahan v. Hotel Co., 39 Ohio St. 333, 48 Am. Rep. 457 (carriage stand); Odell v. Brethey, 38 Misc. 603, 78 N.Y.S. 67 (carriage stand) Gray v. Ramsay, 117 Wash. 255, 200 P. 1074, 204 P. 4 (drainage ditch); Reed v. Seattle, 124 Wash. 185, 213 P. 923, 29 A. L. R. 446 (gas station); State v. Mobile, 5 Port (Ala.) 279, 30 Am. Dec. 564 (market house); City of Columbus v. Jaques, 30 Ga. 506 (pound); Lutterloh v. Cedar Keys, 15 Fla. 306 (pound); Costello v. State, 108 Ala. 45, 18 So. 820, 35 L. R. A. 303 (fruit stand); Spencer v. Mahon, 75 S.C. 232, 55 S.E. 321 (lunch wagon); Schopp v. St. Louis, 117 Mo. 131, 22 S.W. 898, 20 L. R. A. 783 (produce stand); McCaffrey v. Smith, 41 Hun (N. Y.) 117 (carriage stand); Cohen v. City of New York, 113 N.Y. 532, 21 N.E. 700, 4 L. R. A. 406, 10 Am. St. Rep. 506 (wagon stand); Lippincott v. Lasher, 44 N. J. Eq. 120, 14 A. 103 (carter's stand).

The fact that the construction proposed by the city in this case might be a convenience to the public is no persuasive argument that the public has a right to devote a portion of the street to that purpose. Numerous instances of conveniences immediately occur to any one considering the matter which the public might enjoy using upon the public streets, but the fact that they are convenient and might be generally used by the public gives no right to impress that use upon the fee owned by the abutting owner without compensation to him.

In the case of Commonwealth v. Morrison, supra, the court held that the maintenance of a lunch wagon in the street was unlawful, even though a license had been granted therefor, and used this language, which is equally applicable to the situation before us as to the one which was then being considered:

'The business of the defendant does not come within any description of travel, nor does it have a necessary or reasonably natural connection with the passing of persons or the transportation of commodities. * * * But eating, although necessary for human beings, is no more essential to their welfare than sleeping or clothing or cleanliness, nor does it bear any closer relation to travel upon highways than any of these other human functions. But it could not be contended that the establishment on wheels of lodging houses, provision or furnishing stores, or bathrooms, to be drawn and left for considerable periods of time at fixed places in the highways, was fairly comprehended within the description of travel upon the highway. It may well be that the present instrumentalities or methods of travel do not necessarily exhaust the range of use to which highways may be put, but the acts of the defendant do not belong to the class of purposes for which ways have been established.'

In addition to the foregoing authorities the courts in England on two occasions, as reported in L. R. 14 Q. B. Div. 928, and L. R. 16 Ch. Div. 449, have determined that the construction of urinals upon the highway and streets is not lawful. Public use is not synonymous with public benefit. Healy Lumber Co. v. Morris, 33...