Schwede v. Hemrich Bros. Brewing Co.

• Decision Date: 05 July 1902
• Citation: 69 P. 362,29 Wash. 21
• Court: Washington Supreme Court
• Parties: SCHWEDE v. HEMRICH BROS. BREWING CO.

69 P. 362

29 Wash. 21

SCHWEDE v. HEMRICH BROS. BREWING CO.

Supreme Court of Washington

July 5, 1902

Appeal from superior court, King county; Boyd J. Tallman, Judge.

Injunction by Ferdinand Schwede against the Hemrich Brothers Brewing Company to restrain the obstruction of a public street. From a judgment for defendant, plaintiff appeals. Reversed.

H. E Foster, for appellant.

Preston Carr & Gilman, for respondent.

REAVIS C.J.

Plaintiff is the owner of two lots in block 6, Judkins' addition to Seattle, which about on Eighth avenue south. Defendant owns five lots in blocks 7 and 8, abutting on the same street upon which it is constructing and intends to operate a brewery, and, for the purpose of furnishing supplies to the brewery and shipping products therefrom, is about to grade and excavate the street, construct a railroad thereon, and lay a track up and against the front of plaintiff's lots. He alleges that his access to his home will be interrupted, that an additional burden will be placed upon the street, and that his property will be diminished in value by the construction of the railroad, and prays for a perpetual injunction against the operations of defendant having in view the construction and operation of the railroad. The answer denies generally the allegations of the complaint, except that defendant is erecting and intends to operate a brewery upon its said premises, and that it is constructing a railway or switch on Eighth avenue south for the purpose of transporting supplies to and products from its brewery. For affirmative defense, defendant sets up that the Columbia & Puget Sound Railway Company is a railroad corporation duly organized by law, and engaged in operating a railroad in this state; that said railroad has a right of way through said Eighth avenue south and in front of plaintiff's lots, and is continuously and daily operating trains over its own tracks; and the track projected, when constructed by defendant, will be a part of the system of said railroad, and a spur running to the brewery; and, for further defense, that said street was platted and dedicated as a public street, that the fee thereof is vested in the city, and that defendant is constructing its railway under the control and by the authority of the city.

1. No bill of exceptions or statement of facts has been certified in the case. A demurrer was interposed by plaintiff to the affirmative defenses of the answer, which was overruled, and the case was tried. The superior court made the following findings of fact: '(1) That the plaintiff herein is, and for many years prior to the commencement of this action was the owner and seised in fee simple of lot numbered 5, block 6, Judkins' addition to the city of Seattle, Washington, and the same is, and for many years last past has been, plaintiff's home and residence. That the defendant is the owner and seised in fee simple of lots numbered 5, 6, 7, and 8, in block 7, and lot 8 in block 8, in said addition to said city. That the premises of the said plaintiff and those of the defendant about upon Eighth avenue south in the city of Seattle, which said Eighth avenue south is one of the public streets of said city. (2) That on or about the 20th day of March, 1901, the defendant commenced the construction and excavation, for the purpose of building a railroad or switch in front of plaintiff's said premises; that about said time, and immediately prior to the commencement of this action, the said defendant constructed and made an excavation in front of said premises from one to about three feet in depth, and about twelve feet in width; that in so doing said excavation overreached plaintiff's premises about one and one-half feet at the top of the excavation, and about eight inches at the bottom thereof, on the south half of his lot. (3) That it was and is the intention of said defendant, in the making of said excavation, to prepare a road or bed upon which to lay the railroad track or switch connecting its own premises, on which it was constructing a brewery, with the track of the Columbia & Puget Sound Railroad Company; and it was and is the intention of said defendant to construct said track wholly in said Eighth avenue south, a public street of the city of Seattle; and it never was and is not now the intention of the defendant to in any way encroach upon the property of the plaintiff or any part thereof; and the act of said defendant in overreaching plaintiff's property was by mistake, and unintentional on its part. That said excavation was made without the consent and against the will of the plaintiff. That about the time of the commencement of said excavation said defendant obtained from the board of public works of the city of Seattle a permit in writing to construct a railroad or switch in and on Eighth avenue south, and in front of plaintiff's premises, for a period of three years from the date of issuing of such permit. That said defendant never acquired any franchise from the city of Seattle for the right to use said street for said switch or railroad. That said Columbia & Puget Sound Railroad Company is maintaining, and for a long time past has maintained, a track upon said Eighth avenue south in front of plaintiff's premises, and has and does continuously operate trains on said road. That the excavation and proposed road intended to be built by the defendant lies east of the middle of said Eighth avenue south, and said spur or track being constructed by the defendant was intended to connect with said Columbia & Puget Sound Railroad, and for the purpose of transporting products of the brewery being constructed by the defendant upon its property to said railway track of the Columbia & Puget Sound Railroad Company. (4) That the construction of said switch or spur in Eighth avenue south, as intended by the defendant, would not affect the plaintiff differently from the general public, and the injury suffered by the plaintiff by reason of the construction of a railroad in Eighth avenue south, as intended by the defendant, would not be different in character from that which the general public would suffer. (6) That that portion of Eighth avenue south upon which the premises described in these findings abut is in an addition to the city of Seattle known as Judkins' addition; that the original proprietor of said Judkins' addition, in platting...