Seattle Land & Improvement Co. v. City of Seattle

• Decision Date: 28 February 1905
• Citation: 37 Wash. 274,79 P. 780
• Court: Washington Supreme Court
• Parties: SEATTLE LAND & IMPROVEMENT CO. v. CITY OF SEATTLE et al.

79 P. 780

37 Wash. 274

SEATTLE LAND & IMPROVEMENT CO. v. CITY OF SEATTLE et al.

Supreme Court of Washington

February 28, 1905

Appeal from Superior Court, King County; W. R. Bell, Judge.

Bill by the Seattle Land & Improvement Company against the city of Seattle and others. From a judgment dismissing the suit complainant appeals. Affirmed.

Byers &amp Byers, for appellant.

Mitchell Gilliam, for respondents.

ROOT, J.

Appellant brought this action to enjoin the respondents from diverting the use of certain land to another purpose than that for which it is claimed said land was acquired by the city. The material facts are about these: The city duly enacted an ordinance with the following title: 'An ordinance providing for the condemnation and appropriation of certain real estate for the purpose of the construction of retaining walls and slopes thereon, and draining, bulkheading, piling surfacing, terracing, and otherwise improving the same, in order to protect certain streets, alleys and highways in the city of Seattle, and to prevent the same from being obstructed, and to use said property, after it is so improved, for a public park.' Pursuant to this ordinance the city condemned the land in question by appropriate proceedings in court. Thereafter, instead of using said premises for a public park, the city authorities decided to erect thereupon an 'in-town terminal substation,' to be used in connection with the city's lighting plant which use, it is alleged, would be inconsistent with the enjoyment of said lands as a public park, and in fact would prevent them from being used as such. The complaint alleges that appellant purchased property directly opposite this proposed park, which it would not have purchased, had it not been for the public declaration in said ordinance that the taking of such property was for the purposes of a public park. Respondents demurred to appellant's complaint, and the demurrer was sustained. Appellant elected to stand upon its complaint, whereupon the trial court made and entered a judgment of dismissal. Appeal is taken from said judgment.

Appellant contends that, inasmuch as the city stated in said ordinance that the condemnation and taking of said property was with the intention of using it ultimately as a public park, said city has no right to use it for other purposes; at least, not for economic purposes that would prevent its use and enjoyment as a public park. The ordinance contains no provision for the creation of an assessment district to bear the expense of acquiring said property, or for the payment of the same by means of an assessment upon property which would be specially benefited by the creation of a park out of the lands thus acquired. It will thus appear that the payment for said land so taken must be from the general fund of the city. Cities of the first class have power 'to acquire by purchase or otherwise such lands and other property as may be necessary for any of the corporate uses provided for by its charter, and to dispose of any such property as the interest of the corporation may from time to time require.' Such cities are also given power to 'lay out, establish, open, alter, widen, extend, grade pave, plank, establish grades, or otherwise improve the streets, alleys, avenues, sidewalks, wharves, parks and other public grounds, and to regulate and control the use thereof and to...