Towers v. City of Tacoma

• Decision Date: 19 April 1929
• Docket Number: 21450.
• Citation: 276 P. 888,151 Wash. 577
• Parties: TOWERS et al. v. CITY OF TACOMA.
• Court: Washington Supreme Court

276 P. 888

151 Wash. 577

TOWERS et al. v. CITY OF TACOMA.

No. 21450.

Supreme Court of Washington

April 19, 1929

Department 1.

Appeal from Superior Court, Pierce County; E. D. Hodge, Judge.

Objections by A. E. Towers and others to an assessment roll for a trunk sewer local improvement district, being L. I. D. 1144, in the city of Tacoma, opposed by the City of Tacoma. From a judgment confirming an assessment roll, objectors appeal. Reversed and remanded, with directions.

Burkey & Burkey and J. Chas. Dennis, all of Tacoma, for appellants.

E. K Murray, Leo Teats, and Bartlett Rummell, all of Tacoma, for respondent.

MITCHELL C.J.

This is an appeal on behalf of twelve property owners from a judgment confirming an assessment roll for a trunk sewer local improvement district, being L. I. D. 1144, in the city of Tacoma; the district being some six or seven miles out from the business center of the city. The sewer, constructed as a sanitary and storm sewer, runs to the north, and empties into Puget Sound near the smelter. From its outlet it extends southerly along the south boundary of Point Defiance Park to Pearl street, thence south one mile along Pearl street to North Forty-Second street; such point being the southern terminus of the sewer. For the north half mile of Pearl street the district comprises about half a mile to the west but no territory to the east, because Pearl street for that distance is the western boundary of the town of Ruston, a separate municipal corporation. On either side of the south half mile of Pearl street the district is about half a mile wide, and the district continues about the same width for approximately a mile south of North Forty-Second street and beyond that for about three-eighths of a mile the district narrows to about half a mile. For an appreciable distance on each side of the sewer the land is platted into streets and blocks and more or less improved and settled upon, mostly by employees of the smelter. The property of all the appellants is acreage, except a small quantity belonging to A. E. Towers, and may for the purposes of this case be mentioned in three groups or divisions. The first one consists of tracts belonging separately to Fred Shoemaker, the Allen Middleton estate, J. C. T. Middleton Mabel Middleton, W. E. Hacker, and A. E. Towers; all being situated in the southern and southwestern part of the district. Division 2 consists of the lands of William H Langworthy, Bertson Land Company, Kate L. and William T. Perkins, Jesse Thomas, and Anna fuller, all of which lie on the western border of the improvement district and are separated from Pearl street by four blocks of platted property. Division 3 consists of what is spoken of as the Brookman tract. It contains 160 acres in square form; the center of the north line of the tract being at or near the southern end of the sewer. None of the appellants' property has ever been improved, with the exception of a small residence and chicken ranch on the Tower property. All of it is, and for a great number of years has been, raw, unplatted stump land, upon which the vegetation has been noticeably affected by the smoke and fumes from the smelter. The weight of the testimony is to the effect that there is no market for such property and has not been for years, although many of the owners have tried to sell at prices generally less than the cost price of the property years ago, and, as we understand the testimony, even with the sewer in, none of the witnesses could even estimate with any degree of certainty that any of appellants' property would be helped as to its marketability within any reasonable number of years.

All of the property in the district, whether platted or not, improved or not, whether situated on either side of the sewer or within the district entirely beyond the southern terminus of the sewer, was assessed in the same way, by area alone, so much a square foot aggregating the sum of $86,000, which was the total cost of the improvement. The assessment fails to credit appellants' acreage with any area whatever reasonably necessary for streets and alleys, so as to put it upon an equitable basis with a large amount of platted property belonging to others in the improvement district. Such was the assessment that appellants are complaining of so far as it relates to their property, upon the ground that such assessments were arbitrary and were spread upon a foundamentally wrong basis.

It is our opinion that the contentions of the appellants must be sustained. It is entirely plain that the statute fixing the manner in which such assessments shall be made was overlooked or unheeded. The statute, Rem. Comp. Stat. § 9367, reads as follows: 'Any city or town shall have power to provide for the construction of trunk sewers, and trunk water-mains and for the payment of all or any part of the cost and expense thereof by the levying and collecting of assessments upon property specially benefited thereby. In any such case the district created to bear such assessment shall be outlined in conformity with topographical conditions, and in case of trunk sewers, shall include as near as may be all the territory which can be sewered or drained through such trunk sewer and the subsewers connected thereto, and in case of trunk water-mains, shall include...