Shepard v. City of Seattle

• Decision Date: 16 July 1910
• Court: Washington Supreme Court
• Parties: SHEPARD et al. v. CITY OF SEATTLE.

109 P. 1067

59 Wash. 363

SHEPARD et al. v. CITY OF SEATTLE.

Supreme Court of Washington

July 16, 1910

Department 2. Appeal from Superior Court, King County; W. T. Dovell Special Judge.

Action by Agnes W. B. Shepard and others against the City of Seattle to restrain the enforcement of a city ordinance. From a judgment dismissing the action, plaintiffs appeal. Affirmed.

Shepard & Flett, Butler & Crews, and Shepard &amp Daly, for appellants.

Scott Calhoun, H. D. Hughes, and Peters & Powell for respondent.

RUDKIN C.J.

This action was instituted by the plaintiffs, as owners and lessees of certain property in the city of Seattle, to restrain the city from enforcing, as against the plaintiffs and their property, the provisions of an ordinance entitled 'An ordinance regulating the location and maintenance of private hospitals and sanatoriums, and providing for penalties for the violation hereof and declaring an emergency.' Section 1 of [109 P. 1068] the ordinance reads as follows: 'No private hospital or sanatorium shall be established or maintained within the city of Seattle in any building in which any of the sinks or water closets or other drainage are not connected with the public sewers of the city, nor shall any private hospital or sanatorium for the treatment of inebriates or persons suffering from insanity or other mental diseases be established or maintained in any buildings situated within two hundred (200) feet of any private property the owner of which has not consented in writing to the location and maintenance of such hospital or sanatorium, nor in any building without the written permit from the Commissioners of Health of the city of Seattle.' Section 2 provides a penalty for any violation of the provisions of section 1; section 3 declares any hospital or sanatorium established or maintained contrary to the provisions of section 1 to be a public nuisance, and provides for its abatement; and section 4 declares an emergency. The court below made findings of fact and conclusions of law, and entered judgment dismissing the action. From the judgment of dismissal the plaintiffs have appealed, and the case is brought here for review on the findings of the court, without a statement of facts or bill of exceptions. The material findings made by the trial court are the following:

'The plaintiffs Shepard for more than five years last past have been and are the owners of certain real estate in the city of Seattle, described as lots one (1), two (2), three (3), ten (10), eleven (11) and twelve (12) on block nineteen (19) of John J. McGilvra's Second addition to Seattle, upon which there is being conducted by the plaintiffs Loughary and Williamson, who hold said premises under a lease from the plaintiffs Shepard bearing date the 10th day of December, 1908, a sanatorium for the treatment of persons suffering from nervous and mental diseases, including insane persons. About the year 1902 the plaintiffs Shepard erected on said premises, for residence purposes, the building now in use under said lease as the main sanatorium building, and subsequently the other two buildings thereon, which are small cottages; and about the time of making said lease they, in compliance with its terms, commenced to make sundry valuable improvements upon said buildings and premises, involving a total expense to them of about four thousand dollars, but which improvements were not entirely completed at the time of the passage of the ordinance giving rise to this suit. Said premises are situated at a distance of about three miles from the center of business in said city, and in a region suitable for residence purposes, and in which such residences as have been erected are of good character; but there is only one house upon the remainder of the block containing said premises (the same being a residence situated on the southwest one-quarter of said block, about sixty feet south of said main sanatorium building, and the grounds whereof comprise said entire quarter-block)--the plaintiffs' said premises comprising the entire north half of said block--and there is only one house upon the block next west of that containing said premises (the grounds of which residence comprise said entire block), there are no houses on the block next west or the block diagonally northwest of that containing said single residence, only three on the block diagonally northwest of that containing the plaintiffs' said premises, only three on the block next north of that containing said premises, one on the block diagonally northeast of that containing said premises (on the corner thereof most distant from the plaintiffs' said premises), two or three on the easterly side of the block next east of that containing said premises, none on the block diagonally southeast of that containing said premises, two on the block next south of that containing said premises, and one on the block diagonally southwest of that containing said premises (the grounds of which residence comprise said entire block); each of said blocks consisting of twelve full-size lots of average dimensions of about sixty by one hundred and twenty feet. A great many of the lots in said region are not yet cleared up, and have original forest growth upon them; and there is a large tract of practically unoccupied ground, with very few houses upon it, lying north of Madison street, between said street and Union Bay, on the same hill as the plaintiffs' said premises. Said premises are situated on a hillside sloping toward Lake Washington, having natural adaptation for drainage. All said buildings thereon are connected with septic tanks on said premises, built of concrete; the septic tank connected with said main sanatorium building, which was the earliest built of said tanks, was built according to plans and specifications furnished therefor to the plaintiffs Shepard by the city engineer of the defendant, of ample capacity to accommodate a building of that size, long prior to the use of said premises for sanatorium purposes; and prior to the occupation of said premises for sanatorium purposes the board of health of the defendant made an examination of the premises and found them to be in a sanitary condition. The plaintiffs Loughary and Williamson are regularly licensed physicians and surgeons, and especially skilled in the treatment of nervous and mental diseases; and in said sanatorium they care for a number of patients who are thus afflicted, including some who are insane. It is not their purpose to harbor as inmates any violent or dangerous persons, but they claim and have the right under their said lease to harbor on said premises persons suffering from any and all kinds of insanity. The windows of said sanatorium are barred with iron screens, and there is a sufficient force of trained nurses, attendants and guards properly to care for the patients and inmates of said institution, and said windows are so barred for the purpose of preventing any of said patients from escaping, and attendants and guards are employed for the same purpose; but said premises are not fenced or otherwise inclosed. Said lessees have expended about three thousand dollars in furnishing and equipping said sanatorium. Said lease was in full force and effect and said lessees were in possession of said premises thereunder and using the same for the purposes of a sanatorium prior to the passage of ordinance No. 20,008 of the city of Seattle, the passage of which ordinance gave rise to this suit. Said sanatorium is not connected with the public sewers of said city, and consent to the location and maintenance thereof on said premises has not been obtained from the owners of any of the private property situated within two hundred feet of the buildings in which it is maintained, and no permit for its maintenance in said buildings has been granted by the commissioners of health of the defendant; but there is no public sewer of said city within one thousand (1000) feet nor within three blocks of said buildings, and ordinance No. 16,372 of said city provides that buildings which are put to ordinary uses must be connected with the public sewers of said city only when there is a sewer within one block of such buildings. There is no block exceeding three hundred (300) feet in length among those surrounding that in which said sanatorium is situated.'

In support of their assignments of error the appellants contend that 'a private sanatorium for the care of persons suffering from...