Neagle v. City of Tacoma

• Decision Date: 18 December 1923
• Docket Number: 18046.
• Citation: 127 Wash. 528,221 P. 588
• Court: Washington Supreme Court
• Parties: NEAGLE v. CITY OF TACOMA. WILLISON v. SAME.

221 P. 588

127 Wash. 528

NEAGLE v. CITY OF TACOMA.

WILLISON v. SAME.

No. 18046.

Supreme Court of Washington

December 18, 1923

Department 2.

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

Separate actions by Jack Neagle and Andrew Willison against the City of Tacoma, consolidated for trial. Judgment for defendant and plaintiffs appeal. Reversed and remanded, with direction to grant new trial.

Raymond J. McMillan and Ernest K. Murray, both of Tacoma, for appellants.

P. C Sullivan and Percy P. Brush, both of Tacoma, for respondent.

PEMBERTON J.

The appellants instituted separate actions against the respondent to recover damages for injuries resulting from an automobile accident. On April 20, 1921, at about 8 o'clock in the evening, the automobile in which appellants were riding was traveling westerly on East Eleventh street in the city of Tacoma, and collided with a support to an overhead crossing. These supports are 12 inches in width and about 25 feet apart. East Eleventh street is planked for a width of 25 feet, the support on the north side standing out into the highway so that the south edge is 5 feet south of the north edge of the plank. It is claimed that at the time of the accident it was dark and raining, and this north support was unilluminated and practically invisible; that at the time the automobile approached this overhead crossing it was running approximately 12 miles an hour and a number of automobiles were passing easterly. The driver of the automobile kept to the right of the road for the purpose of giving these cars the right of way, and while driving his automobile within about 4 feet of the north edge of the planked portion of the street his right fender collided with the support to the overhead crossing, causing the injuries to appellants.

The St Paul & Tacoma Lumber Company platted this portion of East Eleventh street, and the plat refers to a deed of dedication containing the following reservation:

'Subject however to the following reservations which the first party makes as conditions and limitations upon the operation, extent, and continuation of said above land and conveyance, to wit: Subject to the right of the first parties to continue the use and to use and maintain over, along, or under said above-described strip of land all such crossroads, log ponds, railways, and other means and easements for conveyance and passage of persons or chattels as are now and have been used by the said first party, and such as shall, in the opinion of the first party, its successors and assigns, be or become necessary for the proper, convenient, or economical dispatch of its or their business as the same is now or as it may be hereafter transacted. Provided, the first party is to construct and maintain any and all such private crossings, railways, log ponds, and other means or easements at its own expense and so as to interfere as little as possible with the public use of said street and highway, the easement for which is hereby granted to the said second party, and agrees at no time to obstruct the passage or use of said street and highway except temporarily and for such time only as shall be necessary for the purpose of crossing the same, this limitation, however, not to apply to easements for crossings overhead or underneath.'

At the close of the evidence of appellants the court granted a motion of nonsuit on the ground that under the reservations contained in the plat and deed the city had no authority or control over that portion of East Eleventh street. From judgment of dismissal, this appeal is taken.

Respondent relies on the case of Giles v. Olympia, 115 Wash. 428, 197 P. 631, 16 A. L. R. 493, wherein it is said:

'As a general rule, the dedicator may impose reasonable conditions and restrictions in making a dedication of his property.'

This was with reference to the agreement in the dedication that the abutting land should be free from assessment which does not in any wise limit the control of the street.

A city cannot deprive itself of power to regulate and control its streets through contract or ordinance. Elliott, Roads and Streets (3d Ed.)§ 840. Where streets are dedicated by plats containing reservations depriving the city of the control of its streets 'the public had...