Reed v. City of Seattle

• Citation: 213 P. 923,124 Wash. 185
• Decision Date: 24 March 1923
• Docket Number: 17271.
• Court: United States State Supreme Court of Washington
• Parties: REED et ux. v. CITY OF SEATTLE et al.

213 P. 923

124 Wash. 185

REED et ux. v. CITY OF SEATTLE et al.

No. 17271.

Supreme Court of Washington

March 24, 1923

Department 2.

Appeal from Superior Court, King County; Everett Smith, Judge.

Suit by Walter W. Reed and wife against the City of Seattle and others for an injunction. A general demurrer was sustained, a judgment of dismissal entered, and plaintiffs appeal. Reversed and remanded, with instructions.

Bronson Robinson & Jones, of Seattle, for appellants.

Walter F. Meier, Edwin C. Ewing, and Stratton & Kane, all of Seattle, for respondents.

FULLERTON, J.

The appellants Reed sought by this action to enjoin the respondents from erecting in one of the public streets of the city of Seattle a station to be used for the sale of gasoline, oils, greases, and other automobile accessories. A general demurrer was interposed and sustained to their complaint, and a judgment of dismissal entered. This appeal is from the judgment so entered.

In substance it is alleged in the complaint that the appellants are the owners and in possession of a certain described tract of land situated in the city of Seattle, which abuts upon a public street therein; that in the year 1907 the city of Seattle, by ordinance, provided 'for the laying out, widening extending, and establishing Meadow place, University boulevard, and East Seventeenth street, as public streets highways, boulevards, and parkways in the city of Seattle between East Green Lake boulevard and Fifteenth Avenue Northeast'; and that one of the streets so widened was the street extending across the front of the appellants' property and necessitated a taking of a part of the property. It is further alleged that the ordinance contained appropriate provisions for condemning the private property necessary for the completion of the street, and that such property was afterwards condemned and appropriated by the city; that the ordinance authorizing the condemnation proceedings provided that the expense thereof should be assessed against the property benefited; and that an assessment roll was prepared which included an assessment on the remaining part of appellants' property, which roll was afterwards confirmed by the city council, and which assessment the appellants paid.

While it is not so directly alleged in the complaint, it can be inferred therefrom that the street was afterwards improved by paving a roadway in the center thereof and by laying out parking strips on each side thereof, which parking strips were planted to trees and ornamental shrubbery. It is then alleged:

'That on or about December 31, 1921, the said board of park commissioners executed with the said Union Oil Company a pretended concession agreement, which is in truth and in fact a lease, wherein they attempted to give to said Union Oil Company the right to go into possession of the parkway on the east side of Ravenna boulevard, adjoining East Green Lake way, being approximately 57 feet on East Green Lake way and 120 feet on Ravenna boulevard, and to occupy the same until the 31st day of December, 1924, for the sum of $65 per month, the said Union Oil Company to have the right to erect buildings, tanks, and appurtenances thereon, to alter the sidewalks and curbs, to remove the trees and shrubbery to suit its convenience for the purpose of establishing a station for the sale of 'gasoline, oils, greases, and other products of petroleum, automobile tires and accessories, and for any and all purposes pertaining to motor vehicle service.'

It is then alleged that the Union Oil Company entered into possession of the property leased, and removed the trees and vegetation thereon, altered the curbs and sidewalk, and partially constructed a building thereon; that the portion of the property leased and which the lessee intends to occupy is directly in front of the appellants' property, and was for the most part condemned out of their property, and constitutes a part of the public street for the establishment of which the appellants were compelled to and did pay a special assessment. Facts are alleged tending to show that there is no public necessity for the establishment of such a station at that place; the fact being that numerous stations of that sort exist throughout the city, and that there are three of such stations existing within 100 yards of the particular place.

It is further alleged:

'That the plaintiffs are or will be specially damaged by the acts of defendants herein complained of, in this, that whereas they were compelled to and did pay a portion of the cost of establishing the said boulevard as aforesaid on the ground that the establishment of the same would be of benefit to their said fractional block 13, in that it would provide a pleasant and open space, ornamented by shrubs, grass, and trees, directly in front of their property and insure from their premises an unobstructed and unobstructible view of Green Lake and Woodland Park, now by the said acts of the defendants in altering and destroying the said parkway and

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