Ponischil v. Hoquiam Sash & Door Co.

• Decision Date: 03 January 1906
• Citation: 83 P. 316,41 Wash. 303
• Court: Washington Supreme Court
• Parties: PONISCHIL et ux. v. HOQUIAM SASH & DOOR CO. et al.

83 P. 316

41 Wash. 303

PONISCHIL et ux. v. HOQUIAM SASH & DOOR CO. et al.

Supreme Court of Washington

January 3, 1906

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Action by Adolph Ponischil and wife against the Hoquiam Sash & Door Company and others. From a judgment in favor of plaintiffs defendant Hoquiam Sash & Door Company and certain others appeal. Reversed.

C. W Hodgdon, for appellants.

Ben Sheeks and Will Lanning, for respondent.

CROW, J.

On October 25, 1889, one A. M. Simpson and the Northwestern Lumber Company, a corporation, platted certain lands in Hoquiam, now a city of the third class, and thereby didicated H, Fifth, and Sixth streets to the use of the public. Said plat shows all of block 37 and one-half of block 36, fronting on H street, to be subdivided as follows:

(Image Omitted)

Each lot on H street shown on the above diagram has a frontage of 50 feet, except lot 5 in block 37, which has a frontage of 100 feet. Long prior to the vacation hereinafter mentioned respondents Adolph Ponischil and March Ponischil, his wife acquired title to lot 16 in block 36, which they improved and occupied as a homestead. About February 3, 1903, appellants the Hoquiam Sash & Door Company, a corporation, J. A Acteson, and Henry Craswell, being the owners of lots 1, 2, and 8 in block 36, and 1, 2, and 3 in block 37, petitioned the city of Hoquiam to vacate that portion of H street upon which their said lots abutted, extending from Fifth street to the easterly line of lot 3 in block 37, and lot 8 in block 36; it being thereby proposed to close said street for a distance of 150 feet from Fifth street. Regular proceedings were taken, which resulted in the granting of said petition and the passage of an ordinance making such vacation. Respondents appeared at all stages of said proceedings, and objected on account of damages which, they claimed, would necessarily result to said lot 16 in block 36. After said proceedings were completed respondents commenced this action to enjoin the city of Hoquiam from closing said portion of said street, and also to enjoin appellants from occupying or using the same. Findings were made in favor of respondents, upon which judgment was entered restraining said city from enforcing said ordinance until the damage to respondents' property should be agreed upon or ascertained by legal proceedings and paid; also enjoining appellants, the Hoquiam Sash & Door Company, a corporation, J. A. Acteson, and Henry Craswell, from using, obstructing, or building upon said street until respondents' damages should be settled or ascertained by legal proceedings and paid. From this judgment the Hoquiam Sash & Door Company, a corporation, J. A. Acteson, and Henry Craswell have appealed.

Numerous assignments of error have been made, some of which need not be discussed. Respondents contended below, and now contend, that the ordinance of vacation is void because the owners of a two-thirds frontage of all lots in blocks 36 and 37, abutting on said H street, did not petition therefor. The vacation proceedings were had in pursuance of chapter 84, p. 175, Sess. Laws 1901. The petition was signed by the owners of all private property actually abutting upon the portion of said street sought to be vacated, and was therefore sufficient, under the requirements of section 1 of said act.

An important question arising on this appeal is whether the city of Hoquiam had authority to vacate said portion of H street without providing that respondents should first be paid such damages as their property, lot 16 in block 36, might sustain by reason thereof. Appellants contend that respondents have sustained no damage whatever, or that, if they have, it is only of a character similar to that sustained by the public in general, differing only in degree. They further contend that only the owners of lots actually abutting upon the particular portion of the street vacated can recover damages, and then only for special injuries sustained by them other than those sustained by the public in general, such, for instance, as damage by reason of loss of ingress to or egress from such abutting property. Respondents insist that by reason of said vacation their lots now front upon a cul-de-sac, instead of an open street, depriving them of direct access to Fifth street and points beyond, and that by reason thereof they have suffered special damage. They also contend that the vacation of said portion of H street is the result of collusion between appellants and said city, and that said ordinance was passed for appellants' benefit only, and not for any general or public benefit; and they undertake in this action to inquire into the motives that actuated the city authorities in making such vacation. The Legislature has power to vacate streets, and may delegate such power to the municipal corporations of the state. Such delegation has been made by chapter 84, p. 175, Sess. Laws 1901. Such power having been so delegated, the exercise thereof rests within the discretion of the municipal authorities, and, being a political function, will not be reviewed by the courts, except upon a clear showing of collusion or fraud. Respondents have pleaded collusion and fraud on the part of the city and appellants, but fail to sustain their allegations by evidence. It does, perhaps appear that appellants will be benefited by such vacation, as they are proceeding to use the abandoned portion of H street for a large munufacturing plant. But the fact that such vacation has been made at their instigation, or that they are benefited thereby, is not sufficient to constitute such a fraud or abuse of discretion as, in the absence of any further showing, will authorize a court of equity to interfere and declare the vacating ordinance to be void. Knapp, Stout & Co. v. St. Louis, 156 Mo. 343, 56 S.W. 1102. Elliott, in the second edition of his work on Roads & Streets, at ...