Swope v. City of Seattle

• Decision Date: 15 November 1904
• Citation: 78 P. 607,36 Wash. 113
• Parties: SWOPE et al. v. CITY OF SEATTLE et al.
• Court: Washington Supreme Court

78 P. 607

36 Wash. 113

SWOPE et al. v. CITY OF SEATTLE et al.

Supreme Court of Washington

November 15, 1904

Action by Jacob Swope and others against the city of Seattle. Certiorari by plaintiffs to review a judgment rendered in their favor for less than the relief demanded. Affirmed.

See 76 P. 517.

C. L Parker, for plaintiffs.

Mitchell Gilliam, Wm. Parmerlee, and Hugh A. Tait, for defendants.

ANDERS J.

The plaintiffs were, at and before the commencement of this action, the owners of, and were residing upon, lots 13 and 14 in block 20 in Brooklyn Addition to the city of Seattle which premises are stituated on the northeast corner of Tenth Avenue Southeast and Fortieth Avenue East, in said addition to the city of Seattle. The city, having concluded to grade the streets above mentioned in front of and adjoining the property of the plaintiffs in accordance with an ordinance authorizing (as it alleges) such improvement, was proceeding by its servant and contractor, William Stanley, to lower the surface of the streets and to slope the property of the plaintiffs from the natural surface thereof down to the street grades established by the city. The top of the slope which the city was making seems to have been from 16 to 18 feet back from the margin of the street, and the object of making it was to prevent the soil from sliding down onto the street. After this work had progressed to some extent, the plaintiffs instituted an action in the superior court of King county to enjoin the city, its board of public works, and the contractor from proceeding further 'until just and lawful compensation shall be made to the plaintiffs for taking and damaging the said premises.' Upon the filing of the complaint a preliminary injunction was issued, and a hearing was subsequently had on an order to show cause why the same should not be made permanent. At this hearing the plaintiffs, by their counsel, paid the statutory jury fee, and requested the court to call a jury, presumably to determine the damages which would result to their property by reason of the grading of the streets and the removing of earth from their premises. A jury was accordingly impaneled, and the question of the amount of damages which would be sustained by the plaintiffs on account of the making of the proposed improvement was by the court submitted to them for determination. It seems, however, that the plaintiffs suggested to the court at the trial that the jury ought to be authorized to assess only the damages which had already been sustained by plaintiff because of the wrongful acts of the defendant city, and not such as would thereafter accrue by reason of the completion of the proposed improvement; but the court, as we have seen, did not favorably consider that suggestion. The jury returned a verdict in favor of the plaintiffs, and assessed their damage, over and above all special benefits, in the sum of $100. The court, after overruling a motion for a new trial, entered judgment on the verdict, and the plaintiffs thereupon applied to this court for a writ of certiorari to review the proceedings of the court below. The writ was granted, and a transcript of the records and proceedings was accordingly certified to this court. On the return day of the writ a hearing was had, both parties, being represented by counsel, and the cause was submitted for final determination.

It is contended on the part of the plaintiffs that the trial court had no right or power to submit to the jury in this equitable proceeding the question of the amount of compensation to be made to plaintiffs for taking or damaging their property, and in support of this contention it is earnestly insisted that the method provided by the Legislature whereby private property may be appropriated by cities of the first class for street purposes is exclusive, and must be pursued in all cases. Our statutes prescribe just what steps shall be taken by cities of the first class when they undertake to condemn private property for the purpose of changing the grades of streets. Ballinger's Ann. Codes & St. § 755 et seq. It is provided, in substance, among other things, that whenever such city shall have passed an ordinance providing for appropriating or damaging private property for public use it shall file a petition in the superior court of the county in which such city is situated, in the name of the city, praying that just compensation, to be made for the private property to be taken or damaged for the improvement or purpose specified in such ordinance, 'be ascertained by a jury or by the court in case a jury be waived.' The statute then prescribes what the petition shall contain. It also provides for the issuance of a summons, and the service thereof upon the persons made parties defendant in the proceeding. It is admitted that the city did not, prior to the commencement of the improvement in question, file a petition in the superior court praying that just compensation, to be made for the taking or damaging of the property of the plaintiffs, be ascertained in the manner provided in the statute above mentioned. This statute prescribing the procedure in cases where it becomes necessary to appropriate or damage private property for public use was evidently enacted for the sole purpose of establishing a reasonable and certain method of ascertaining the just compensation which the Constitution declares 'shall be first made or paid into court for the owner' of the property sought to be taken or damaged. Const. art. 1, § 16. And we have no doubt that under the law and the Constitution of this state a corporate body having the right to exercise the power of eminent domain may be enjoined from taking or damaging private property for public use until just compensation is made, or paid into court for the owner. In fact, this question has been definitely settled by former adjudications of this court. See State ex rel. Smith v. Superior Court, 26 Wash. 278, 66 P. 385; Olson v. Seattle, 30 Wash. 687, 71 P. 201. But it must be conceded that the provisions of the statute and the Constitution above referred to apply only to cases where private property is to be taken or damaged in invitum, and that neither the law nor the Constitution precludes the owner from voluntarily agreeing that his property may be taken either for a stipulated compensation, or without any compensation whatever. It does not appear that the city was in this instance proceeding arbitrarily, and in defiance of law and of the rights of the plaintiffs. On the contrary, it was...