Petition of City of Bellevue

• Decision Date: 12 April 1962
• Docket Number: No. 359,No. 36111,359,36111
• Citation: 370 P.2d 861,59 Wn.2d 793
• Court: Washington Supreme Court
• Parties: In the Matter of the Petition of the CITY OF BELLEVUE to Acquire by Condemnation Certain Property and Property Rights for 106th Avenue, N.E., Between Main Street and N.E. 8th Street, as Contemplated in OrdinanceThe CITY OF BELLEVUE, Respondent, v. Lucy Nadine UNDERWOOD, individually and as Executrix of the Estate of Harold Lynn Underwood, Appellant.

Page 793

59 Wn.2d 793

370 P.2d 861

In the Matter of the Petition of the CITY OF BELLEVUE to Acquire by Condemnation Certain Property and Property Rights for 106th Avenue, N.E., Between Main Street and N.E. 8th Street, as Contemplated in Ordinance No. 359 The CITY OF BELLEVUE, Respondent, v. Lucy Nadine UNDERWOOD, individually and as Executrix of the Estate of Harold Lynn Underwood, Appellant.

No. 36111.

Supreme Court of Washington, Department 1.

April 12, 1962.

Rehearing Denied May 31, 1962.

Powell, Johnson & Livengood, Gordon A. Livengood, G. J. Silvernale, Jr., Kirkland, for appellant.

Joseph S. Miller, Bellevue, for respondent.

FOSTER, Judge.

The appellant landowner appeals from a judgment in an eminent domain proceeding. The one valid assignment of error is to a finding of fact ¹ respecting damages.

Cutting through a ponderous maze of confusing, bewildering and wholly irrelevant details, the record shows that the appellant owned commercial property in Bellevue which was improved by a supermarket. Upon acquisition of the property, appellant likewise acquired a nonexclusive easement over an adjacent private street which, at the time of trial, had been improved by blacktopping. It is used by the customers of the supermarket and others, and has all of the outward attributes of a public street.

The city of Bellevue, to extend a public street over this private one, instituted the necessary condemnation proceeding. The property sought for street purposes coincided exactly with the property on which the appellant had an easement, and the condemnation, when complete, would extinguish appellant's private, nonexclusive easement and substitute therefor a public street.

No question arises as to the damage awarded for the appellant's improvement to her easement, but the contention is that she was entitled to substantial instead of only nominal damages for the transformation of the private street into a public one. The trial court was correct in awarding nominal damages only. The applicable rule of law was simply stated by the Supreme Court of Idaho in City of Lewiston v. Brinton, 41 Idaho 317, 322, 239 P. 738, 739, as follows:

'Where a private way is taken for a public way, if the public use does not interfere with the enjoyment of the way, and if the burden on the land is practically identical, the owner of the fee is entitled only to nominal damages. Whether such use as a public way does add to the burden on the land is a question of fact, to be determined and taken into consideration by the jury.'

Accord: People ex rel. Washburn v. Common Council, 128 App.Div. 44, 112 N.Y.S. 387; Tanner v. Provo Bench Canal & Irrigation Co., 40 Utah 105, 121 P. 584; Boston Chamber of Commerce v. City of Boston, 195 Mass. 338, 81 N.E. 244; 217 U.S. 189, 30 S.Ct. 459, 54 L.Ed. 725; In re Appeal of Sowers, 175 Minn. 168, 220 N.W. 419.

Other claimed assignments of error ² are not assignments of error at all, but merely...