Schuchard v. City of Seattle

• Decision Date: 13 November 1908
• Citation: 51 Wash. 41,97 P. 1106
• Parties: SCHUCHARD et al. v. CITY OF SEATTLE.
• Court: Washington Supreme Court

97 P. 1106

51 Wash. 41

SCHUCHARD et al. v. CITY OF SEATTLE.

Supreme Court of Washington

November 13, 1908

Appeal from Superior Court, King County; Geo. E. Morris, Judge.

Objections by A. A. Schuchard and another to proposed assessments by the city of Seattle for a public improvement. The objections were overruled by the city council, and Schuchard and such other appealed to the superior court, where the assessment was confirmed, and they appeal. Reversed and remanded.

G. Ward Kemp, for appellants.

Scott Calhoun and James E. Bradford, for respondent.

RUDKIN J.

Ordinance No. 13,102 of the city of Seattle, approved December 18 1905, provided for the regrade of Jackson street and numerous other streets, avenues, and alleys in that city. After reciting that public necessity demanded the regrade, and that the improvement would be of special benefit to certain lands and premises and other property, the ordinance established the grades of the several streets, and directed the corporation counsel to file a petition in the superior court complying with the laws of the state, and praying that just compensation be made for the property and property rights taken or damages by reason of the regrade. Pursuant to this authority, a petition was filed for the purpose of ascertaining the damages to be paid to the owners of property taken or damaged. Among other property described in the petition and damaged by the regrade were lots 5 and 6 of block 48, of D. S. Maynard's plat of Seattle, owned by the appellants Schuchard and wife. A trial of the condemnation proceeding was had as between the city and the appellants. On that trial the court instructed the jury, in effect, that the appellants were entitled to recover all damages resulting to their property by reason of the regrade, less any local or special benefits arising from the proposed improvement. This instruction was in accordance with section 15 of the act of March 9, 1893 (Laws 1893, p 189, c. 84), which reads as follows: 'Sec. 15. When the ordinance providing for any such improvement provides that compensation therefor shall be paid, in whole or in part, by special assessment upon property benefited, the compensation found by the jury for any land or property taken shall be irrespective of any benefit from the improvement proposed. When such ordinance does not provide for any assessment, in whole or in part, upon property benefited, the compensation found for land or property taken, and in all cases the damages found in respect to land or property not taken, shall be ascertained over and above any local and special benefit arising from such proposed improvement, except as provided in section 2 of this act as to streets, avenues and boulevards established or widened to a width greater than 150 feet, in which class of cases no benefits shall be deducted as to such excess.'

The jury returned a verdict in favor of the appellants, assessing their damages in the sum of $100, and a final judgment was rendered thereon. Thereafter, by Ordinance No. 13,309, a local improvement district was created including within its limits the two lots above described, and the cost of the improvement under the regrade ordinance, less an appropriation of $30,000 from the general fund of the city was assessed against the property within the district. An assessment roll was prepared assessing $1,228.09 against lot 5 and $907.72 against lot 6 above described. Thereafter and within the time prescribed by law and the ordinances of the city, the appellants filed written objections to the proposed assessment, alleging, in substance, that all local and special benefits arising from the proposed improvement had been offset against the damages awarded in the condemnation proceeding. The objections were overruled by the city council, and an ordinance was passed and approved confirming the assessment. The appellants appeal to the superior court, where the assessment was again confirmed, and the case is now before us for review.

The contention of the appellants in brief is that all local and special benefits to their property arising from the proposed improvement having been offset against the damages recovered in the condemnation proceeding, an assessment against the damaged property for the same improvement is wholly unauthorized. This contention must be sustained. It was so held by this court in Smith v. Seattle, 41 Wash. 60 82 P. 1098, and the rule there announced is fully sustained by the authorities. In City of Chicago v. Mecartney, 216 Ill. 377, 75 N.E. 117, the court said: 'If the jury in a condemnation proceeding award damages for property not taken, the judgment is conclusive against a subsequent assessment proceeding to assess it for benefits, because the judgment is conclusive that there are damages and not benefits.' In Davis v. Mayor, etc., of the City of Newark, 54 N. J. Law, 595, 25 A. 336, the court said: 'By force of the provisions of the charter, * * * the proper award for...