Smith v. City of Seattle

• Decision Date: 20 December 1905
• Citation: 41 Wash. 60,82 P. 1098
• Parties: SMITH v. CITY OF SEATTLE.
• Court: Washington Supreme Court

82 P. 1098

41 Wash. 60

SMITH v. CITY OF SEATTLE.

Supreme Court of Washington

December 20, 1905

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

Action by C. B. Smith against the city of Seattle. From a judgment for plaintiff, defendant appeals. Affirmed.

Mitchell Gilliam, Wm. Parmerlee, Hugh A. Tait, and James B. Howe, for appellant.

William Hickman Moore and A. J. Tennant, for respondent.

ROOT J.

The city of Seattle established an improvement district for the improvement of a portion of Pike and East Pike streets by regrading. Respondent owned a lot within said district. In the condemnation suit instituted by the city, the jury, after being instructed to deduct the amount of local and special benefits, found that respondent's property was damaged in the sum of $50, which amount the city thereupon paid from its general fund. Thereafter the city council prepared an assessment roll, levying upon the property specially benefited the cost of said improvement. Respondent's lot was placed upon said roll and assessed in the sum of $345.67. He appeared at the hearing over said roll, before the city council, and objected to any assessment, for the reason that the jury had found his property to be damaged over and above the amount of local and special benefits, which benefits had by said jury been deducted from the sum total of his damages. His objections were overruled by said council, and the assessment upon his lot confirmed. He then appealed to the superior court in and for King county, where proceedings were had terminating in a judgment canceling said assessment upon respondent's property. From said judgment the city prosecutes this appeal.

The essence of appellant's contention seems to be contained in the following extract from its brief: 'Inasmuch as section 16, art. 1, of the Constitution, leaves the municipal corporation on the same footing as any other corporation, in every case save where a right of way is appropriate, we contend that, when the city undertakes to regrade a street and thereby to damage abutting property, it has no right to have the benefit to the abutting property caused by the improvement, deducted from the damage to the abutting property, caused by the improvement.' Respondent answers this by insisting that the city cannot be heard to make this contention, for the reason that it accepted the benefit of this deduction before the jury, and paid only the $50 damages existing after making said deduction. Appellant argues that the trial court, in instructing the jury to deduct local and special benefits from respondent's damages, committed an error of law which...