State v. Superior Court of Whatcom County

• Decision Date: 06 April 1906
• Citation: 85 P. 256,42 Wash. 521
• Parties: STATE ex rel. THOMAS et al. v. SUPERIOR COURT OF WHATCOM COUNTY et al.
• Court: Washington Supreme Court

85 P. 256

42 Wash. 521

STATE ex rel. THOMAS et al. v. SUPERIOR COURT OF WHATCOM COUNTY et al.

Supreme Court of Washington

April 6, 1906

Certiorari by the state, on the relation of John L. Thomas and others against the superior court of Whatcom county and others, to review proceedings for the condemnation of property. Affirmed.

Black Kindall & Kenyon, for plaintiffs.

Dorr &amp Hadley, for respondents.

CROW J.

This is a certiorari proceeding instituted for the purpose of having this court review the orders of the superior court of Whatcom county in an action for the condemnation of private property. On April 10, 1905, the council of the city of Bellingham passed ordinance No. 139, entitled: 'An ordinance providing for the laying off, widening and establishing of Prospect street, a public street and highway in the city of Bellingham, over and across portions of blocks 11, 12, 14, and 19, Central Whatcom; providing for the laying out, extending and establishing said Prospect street through block 7, New Whatcom, and providing for the taking and damaging of land and other property necessary therefor and for the ascertainment and payment of just compensation to be made for the private property to be taken and damaged for said purposes and for the assessment upon the property benefited for the purpose of making such compensations.' Afterwards the city attorney, under authority of said ordinance, filed a petition in the superior court of Whatcom county, as required by section 3, c. 55, p. 86, Laws 1905, praying that just compensation be made for private property to be taken or damaged for the laying off, widening, extending, and establishing of Prospect street, as provided by said ordinance, and that a jury be impaneled for that purpose. Prospect street, as at present dedicated and opened, extends from the northern portion of the city of Bellingham in a southerly direction to Champion street, where it terminates near the center of the north line of block 7, hereinafter mentioned. Immediately south of Champion street, and abutting thereon, is block 7 of the city of New Whatcom, now a part of Ballingham. This block, triangular in form, and subdivided into lots, is bounded on the north by Champion street, running east and west, on its southeasterly side by Bay street, running from northeast to southwest, and on its southwesterly side by Holly street, running from northwest to southeast. Bay and Holly streets intersect each other at the south angle of block 7, and respectively intersect Champion street at the east and west angles of said block 7. The city buildings and central fire station are located on Prospect street about one block north of Champion street. Block 7 lies between the end of Prospect street and the business center of the city, to which at present the most direct route of travel is around Champion and Bay streets. The city wishes not only to widen Prospect street, but also to extend it across said triangular block 7 to Bay street, thus making a wider and more direct thoroughfare to the business center. The city now owns the southwest 30 feet of lot 11 in block 7, directly in the line of the proposed extension of Prospect street. Ordinance 139 does not provide for any condemnation of said 30 feet, nor has any formal record of its dedication been made. If the street when extended is not opened through said 30 feet, one cul-de-sac will be formed in the north side and another in the south side of block 7 with said 30 feet lying between them. The relators own that portion of block 7 sought to be condemned south of the 30 feet owned by the city. The superior court made findings of fact and conclusions of law in favor of the city, and ordered a jury to be impaneled to fix values and assess damages.

The relators' first contention is that the proposed appropriation of their lands is not a public use. They insist that neither the ordinance nor the condemnation proceedings attempt to appropriate said southwest 30 feet of lot 7, and cannot be regarded as proceedings for that purpose; that no dedication of said 30 feet has been made; that the city is only endeavoring to create one cul-de-sac next to Champion street, and another next to Bay street; and that any appropriation for such a purpose cannot be a public use. We think these contentions are entirely without merit. The record shows a sincere intention upon the part of the city to actually open Prospect street entirely across block 7, and to condemn all private property that may be necessary for that purpose. The southwest 30 feet of lot 11, however, is not private, but public property. If it belonged to the county or state, it might perhaps be necessary to condemn it; but, as it belongs to the city its condemnation is unnecessary. Although no record of any formal dedication of said 30 feet has been made for street purposes, yet, if the city proceeds with the proposed improvement and pays the relators all damages that may be awarded them, we think that, in the light of the ordinance, the condemnation petition, the evidence and the entire record before us, it will be estopped from claiming that its own property has not been dedicated. 13 Cyc. 453, 454. But, suppose it be admitted, as contended by the relators, that the city is only creating a cul-de-sac, yet it would have authority to establish a thoroughfare in the form of a cul-de-sac on either side of its property, if it saw fit to do so. It would be a legislative function, with the exercise of which the courts could no interfere, for the city to determine that such additional access to its...