State ex rel. Moline v. Driscoll
| Decision Date | 14 January 1936 |
| Docket Number | 26018. |
| Citation | 185 Wash. 229,53 P.2d 622 |
| Parties | STATE ex rel. MOLINE et ux. v. DRISCOLL. Judge. |
| Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, Franklin County; Matt L. Driscoll Judge.
Proceeding on the original application of the State of Washington, on the relation of B. L. Moline and wife, against Hon. Matt L Driscoll, Judge of the Superior Court of Franklin County, to review a judgment of the respondent dismissing an action brought by the relator against L. V. Murrow and others.
Judgment reversed, with instructions.
H. B Noland, of Walla Walla, for appellants.
C. M. O'Brien and Edward A. Davis, both of Pasco, for respondent.
This is an original application filed in this court for a writ of certiorari to review a judgment of the superior court for Franklin county dismissing an action brought in that court by B. L. Moline and Adelaide L. Moline, husband and wife, who sought a decree restraining L. V. Murrow and Norman Hill, officials of the state department of highways, the city of Pasco, a municipal corporation, and S. N. McGee, its mayor, from proceeding with the proposed improvement of Lewis street in the city of Pasco, without previously submitting to a jury the question of whether or not certain real estate belonging to Mr. and Mrs. Moline was damaged by the improvement.
In their complaint, plaintiffs alleged that they were the owners of lot one and the south half of lot two, in block three, of Northern Pacific Railway Company's plat of the town of Pasco, which property has a frontage of 130 feet on Lewis street and a frontage of 75 feet on Tacoma avenue, and is improved with a three-story and basement hotel, owned and operated by plaintiffs; that Lewis street is the principal thoroughfare through the city of Pasco; that both Lewis street and Tacoma avenue were long since paved at an established grade; that a 14-foot concrete and steel sidewalk borders on both street sides of the hotel property; that approximately 50 feet of Lewis street is paved for vehicular traffic; that Lewis street, immediately east of its intersection with Tacoma avenue, is crossed by the main line of the Northern Pacific Railway; that the defendants have planned and are intending to construct on Lewis street an undercrossing to separate the railway grade and the surface grade of Lewis street, and are proposing to lower a portion of the surface of Lewis street in front of plaintiffs' property for the purpose of providing a method by which vehicular and other traffic may avoid crossing the railway tracks at grade; that the undercrossing will become a permanent part of the state highway, and constitutes a public use; that plaintiffs' property is damaged by reason of the change of grade of part of the surface of Lewis street; that plaintiffs' damages because of this change of grade have not been ascertained as provided by law; and that the improvement is about to be constructed without the ascertainment of plaintiffs' damages.
On the trial, it appeared that the undergrade crossing will be 24 feet in width, and that at the intersection of Lewis street and Tacoma avenue and in front of the hotel property, it will be 15 feet below the present grade of Lewis street. The cut in the street will be about two blocks long, extending one block each way from the hotel, commencing at the present grade and descending to a maximum depth of 15 feet. Lewis street is 80 feet in width over all, the cut 24 feet in width to be in the center of the street, leaving, after allowing for retaining walls, approximately 26 1/2 feet of Lewis street at the present grade on each side of the undercrossing. At present, the sidewalk in front of the hotel property is 14 feet in width. By the proposed improvement this sidewalk will be reduced to six feet, the strip of pavement at the present grade for vehicular traffic in front of the hotel property to be approximately 20 feet in width. The trial court found that the contemplated improvement was proper and necessary and that plaintiffs failed to establish that their property would be damaged by the improvement, and dismissed the action. Plaintiffs have, by this application for a writ of certiorari, brought the judgment entered by the trial court Before us for review.
Relators Moline will be hereinafter referred to as appellants. The subject-matter of the action being emergent, and it being evident that the remedy by appeal is inadequate, due to the time which would necessarily elapse Before an appeal could reach this court in the...
To continue reading
Request your trial
-
Northlake Marine Works, Inc. v. City of Seattle
...a taking when the city constructed a 12 foot high viaduct in front of property depriving it of all access); State ex rel. Moline v. Driscoll, 185 Wash. 229, 53 P.2d 622 (1936) (finding that hotel owner had a cause of action when the city planned to eliminate 8 feet of a 14-foot sidewalk and......
-
Jensen v. Henneford
... ... H. Henneford and ... others, as the State Tax Commission, and action by Philip ... Bronson against H. H ... Attorney General are State ex rel. Stiner v. Yelle, ... 174 Wash. 402, 25 P.2d 91; Supply Laundry ... ...
-
Cummings v. City of Minot
... ... J. Flannigan, as State Highway Commissioner of the State of North Dakota; and Minneapolis, St ... In the ... case of State ex rel. Moline v. Driscoll, 185 Wash ... 229, 53 P.2d 622, the Supreme Court ... ...
-
Walker v. State, 33385
...land); Fry v. O'Leary, 1927, 141 Wash. 465, 252 P. 111, 49 A.L.R. 1249 (vacation of portion of street); State ex rel. Moline v. Driscoll, 1936, 185 Wash. 229, 53 P.2d 622 (street grade lowered and sidewalk reduced in In these cases, there was either physical injury to the owner's property o......
-
The Constitutional Validity of the Modification of Joint and Several Liability in the Washington Tort Reform Act of 1986 Gregory C. Sisk
...a guarantee of a right to a particular tort remedy or substantive rule of law. 76. 185 Wash. 143, 53 P.2d 615 (1936). 77. Id. at 160-61, 53 P.2d at 622. One student law review Comment has urged implication of a remedy provision into article I, § 10 of the Washington Constitution to limit le......
-
§ 3.2 - Lateral Support
...improvements; and (3) subsequently, a municipality alters the grade to the property owner's detriment. State ex rel. Moline v. Driscoll, 185 Wash. 229, 233, 53 P.2d 622 (1936) (previously built hotel damaged by change in grade to improved street that would have dropped grade by 15 feet alon......
-
Table of Cases
...P.2d 707 (1945): 1.7(2) State ex rel. Leavell v. Nelson, 63 Wn.2d 299, 387 P.2d 82 (1963): 12.4(4)(a) State ex rel. Moline v. Driscoll, 185 Wash. 229, 53 P.2d 622 (1936): 3.2(2)(b)(ii) State ex rel. Oatey Orchard Co. v. Superior Court, 154 Wash. 10, 280 P. 350 (1929): 9.4(4), 9.5(1)(b) Stat......