Rettire v. City of North Yakima

• Decision Date: 26 August 1913
• Citation: 75 Wash. 143,134 P. 699
• Parties: RETTIRE et ux. v. CITY OF NORTH YAKIMA.
• Court: Washington Supreme Court

134 P. 699

75 Wash. 143

RETTIRE et ux. v. CITY OF NORTH YAKIMA.

Supreme Court of Washington

August 26, 1913

Department 1. Appeal from Superior Court, North Yakima County; Thos. E Grady, Judge.

Action by Louis Rettire and wife against the City of North Yakima. From a decree in favor of plaintiffs, defendant appeals. Reversed.

Guy O Shumate, of North Yakima, for appellant.

R. B Milroy, of North Yakima, for respondents.

PARKER J.

This is an appeal from a decree of the superior court for Yakima county enjoining the city of North Yakima from maintaining a sidewalk in front of the respondents' lots, and requiring the city to remove the sidewalk and filling upon which it rests, so as to restore the grade of the street in front of respondents' lots to the level which the superior court holds to be the grade of the street, including the grade of the sidewalk, previously established by the city, or, in the alternative, that the city commence and prosecute condemnation proceedings, and thereby acquire the right, as against respondents, to maintain the sidewalk as at present constructed.

In October, 1903, the city passed an ordinance providing for the improvement, by grading only, of the street upon which respondents' lots abut. The only portion of that ordinance furnishing us any information as to the kind of improvement to be made in pursuance thereof, or as to the grade at which the street was to be improved, reads as follows: 'The said grading to be constructed and completed according to the plans, specifications, and detail drawings heretofore prepared by the city engineer, and now on file in the office of the city clerk of said city, and shall be graded similar to Fourth street in said city. * * *' If any plans, specifications, or drawings were ever prepared for this improvement, the city has lost them, and was unable to produce them at the trial. However, the city did proceed to grade the street under this ordinance, and charged the expense thereof, by special assessment, against the abutting property, including the lots of respondents. In making the improvement, the city did not complete the grade of the street over its entire width, but graded for permanent use, only, the roadway between the spaces on each side to be thereafter used for sidewalks. To just what extent these spaces were filled or raised above the natural surface of the ground, we are not informed by the record; but it is plain that they were not graded or filled with a view of establishing the grade of the surface of the sidewalks to be thereafter constructed. In view of the fact that we have no plans, specifications, or drawings showing the nature and extent of the improvement contemplated by the ordinance, and the fact of the levy of the special assessment by the city to pay the expense of the improvement we must presume that it was constructed in compliance with the ordinance. The front of the respondents' lots was in a natural depression, lying slightly below the level of the surrounding land. After the grading of the street, respondents graded their lots, as they claim, with reference to the grade of the street, leaving the front of the lots seven inches below the street, and the back of the lots 16 inches higher, so as to be able to irrigate them. They also raised their dwelling house then upon the lots; but to what level with reference to the grade we are not informed. This is the substance of all of the facts shown by the record, which we regard as material to the questions of the establishing of the grade of the street by the city, and respondents' improvement of their lots with reference thereto, prior to the spring of 1911, when the city raised the sidewalk spaces by filling in front of respondents' lots and constructed a cement sidewalk thereon, the surface of which is 10 inches higher than the center of the street as previously graded and 18 inches higher than the front of respondents' lots as graded by them. We are not informed how high the surface of the sidewalk is above the roadway at the curb, nor as to how much crown there is to the surface of the graded roadway. This is the sidewalk against which the decree of the trial court is directed.

The principal question for our determination is, Did the passage of the 1903 ordinance and the improvement of the street thereunder by the city constitute such an establishing of the grade of the street over its entire width in front of respondents' lots as to deprive the city of the right to construct this sidewalk with its surface 10 inches higher than the center of the street as graded under that ordinance without acquiring the right to so construct the sidewalk, by condemnation proceedings, as against respondents? Our decisions in Fletcher v. Seattle, 43 Wash. 627, 86 P. 1046, 88 P. 843, and Ettor v. Tacoma, 57 Wash. 50, 106 P. 478, 107 P. 1061, have...