Washington Water Power Co. v. City of Spokane

• Decision Date: 08 January 1916
• Docket Number: 12622.
• Parties: WASHINGTON WATER POWER CO. v. CITY OF SPOKANE.
• Court: Washington Supreme Court

154 P. 329

89 Wash. 149

WASHINGTON WATER POWER CO. v. CITY OF SPOKANE.

No. 12622.

Supreme Court of Washington

January 8, 1916

Department 2. Appeal from Superior Court, Spokane County; Henry L Kennan, Judge.

Action by the Washington Water Power Company against the City of Spokane. From a judgment on verdict directed for defendant the plaintiff appeals. Reversed and remanded, with directions.

Post Avery & Higgins, of Spokane, for appellant.

H. M. Stephens, of Spokane, for respondent.

MORRIS C.J.

For a number of years prior to and on September 8, 1891, the Spokane Falls Water Power Company owned a small island, known as Havermale Island, which lies between the channels of the Spokane river in the city of Spokane. On the date mentioned, the company granted to the city an easement for the construction of Howard street across the island, the grantors retaining the fee to the land and other rights which will be referred to as occasion arises. The particular covenant of the easement over which this controversy arises is as follows:

'And upon the further condition that the grantor herein shall be reimbursed by the city of Spokane, for any grade tax paid by it for opening, grading, or improving any part of said street, excepting sidewalks, and upon the further condition that when said highway is graded through the premises of the grantor, and any cut or fill is made necessary by the granding of said street, that the city, at its own expense, shall cause the land of the grantor abutting on said highway on the island between the second and third channels of the river from the south to be graded on an incline for a space of not more than one hundred (100) feet on each side so that it will be practicable for vehicles of all kinds to drive on and off the said highway along its entire length across said island, and also to build an approach on each side of the said highway on the third island when the highway crosses it, wide enough for vehicles of all kinds to drive on and off said highway by said approach on each side.'

Soon after the giving of this deed, Howard street was opened across the island, the channels of the river were bridged, and the street was thrown open for traffic. It does not appear that an assessment district was ever created for the construction of the street across the island. Arthur Jones, a member of the council at the time, testified that the cost of opening the street was probably included in the cost of building the bridges. Other members of the council at that time testified that the street was open for heavy traffic, but no one testified how much grading or other improvement had been done. This portion of Howard street apparently remained as originally opened until August 4, 1911, when the city passed Ordinance No. C262, providing for its grading, paving, and other improvement, and directing that the cost of the improvement be assessed against the abutting property. The abutting property had by this time, by various mesne conveyances, passed to the appellant, which made due exceptions to the confirmation of the assessment roll and demands that the assessment be canceled. All these exceptions and demands having been disallowed and refused, the appellant paid the assessment under protest, and after a proper demand brought this action to secure a reimbursement of the amount paid, basing its right on the covenant in the deed of 1891. The trial court was of the opinion that the testimony established that there had been, when the street was opened, such an improvement as the parties to the deed contemplated, and that the covenant should not be construed to prevent the city from levying an assessment on the property for subsequent improvements. The jury was accordingly directed to return a verdict for the city, and from the judgment of dismissal entered thereon the water power company has appealed.

Before inquiring into the power of the city to accept the easement and act under its provisions, we must first determine whether the city made in 1891 all the improvements contemplated by the deed, or whether the covenant includes the improvement under consideration; for, if the city when it opened up the street made all the improvements covered by the deed, then manifestly the appellant may not recover assessments subsequently paid for improvements not within the contemplation of the parties at the time. The controlling language of the deed is as follows:

'Any grade tax paid by it [the grantor] for opening, grading or improving any part of said street, excepting sidewalks.'

The city contends that it fully complied with the terms of the deed by the work done on Howard street at the time it was opened in 1891, and that for any further improvement subsequently made it may assess and collect from the appellant without any liability to reimburse it therefor. We are of the opinion, however, that the improvement made in 1891 was not such as the deed contemplated. The term 'grade' has been variously construed by the courts to include many forms of improvement, but we have found no instances where it has been held that a mere opening and preparation for travel, such as was apparently made in this case, fulfills an agreement to grade. In Aldrich v. Board of Aldermen of Providence, 12 R.I. 241, the court said:

'To grade a highway is to do more than simply prepare it for travel; for this may often be accomplished by slight superficial changes.'

By the use of the two terms 'opening' and 'grading,' the covenant in this deed evidently contemplated a permanent grade which would include everything necessary to establish the grade, such as embankments, cuts, and fills, and, on the authority of Spokane v. Browne, 8 Wash. 317, 36 P. 26, gutters and curbs.

The deed also entitled the grantor to reimbursement for 'improvements,' which the appellant contends includes paving. While not strictly ambiguous, the term 'improvement' has a wide range of meaning, and may or may not designate paving, depending on the sense in which it is used. As was said in Wolff Chemical Co. v. Philadelphia, 217 Pa. 215, 66 A. 344:

'The word 'improvement' is a relative term, and its meaning must be ascertained from the context and the subject-matter of the instrument or writing in which it is used.'

The evidence discloses that, at the time this easement was given, there was very little, if any, paving in Spokane, and, construing the terms of the easement in the light of that condition and in conjunction with the terms 'opening' and 'grading,' it is a fair interpretation that paving was not contemplated by the use of the word 'improvement.' Had the parties contemplated paving, they could have easily so stated, and the omission of the word 'paving' must indicate that the improvements contemplated were those incidental to the opening and grading. We conclude therefore that, if the city is liable on the contract, it is bound to reimburse the appellant for the assessment levied for the grading but not for the paving proper.

The next question is whether the city had power to enter into the contract with the grantor to reimburse it for assessments, considering that the acceptance by the city of the deed subject to the covenant created a contract to reimburse the grantor as provided therein. The city contends that the agreement with the power company was an attempt to exempt the company from any assessment for improvement of the street, and cities the following cases in support of its contention that such exemptions are void: Pittsburgh, C., C. & St. L. Ry. Co. v. Oglesby et al., 165 Ind. 542, 76 N.E. 165; Leggett v. Detroit, 137 Mich. 247, 100 N.W. 566; Whitcomb v. Boston, 192 Mass. 211, 78 N.E. 407; Vrana v. St. Louis, 164 Mo. 146, 64 S.W. 180; Rackliffe v. Duncan, 130 Mo.App. 695, 108 S.W. 1110; Miners' Bank v. Clark, 252 Mo. 20, 158 S.W. 597.

In the Indiana case the court said:

'Appellees maintain that the grant by the railroad company to the city of ground for use as a street was valid but that the provision in the deed that the grantor and the remaining portions of the lot should not then or thereafter be charged with any expense connected with the extension or maintenance of that portion of such street was void. It has long been an established principle that private property may be appropriated for a highway when public necessity, convenience or utility requires it. It is quite as essential that such highway be improved and kept in repair as that it be established in the first instance. It has been, and is, the theory of our law that the opening and improvement of a public highway will benefit the abutting and adjacent property, and that such property should be primarily and proportionately liable for the costs and damages occasioned thereby to the extent of such resulting benefits. This was the law in the year 1882, when the deed in question was executed, and it has continued to be the law to the present time. Conceding that the city of Rushville might purchase the title or an easement in land for use as a street, and obligate itself to pay a fair and reasonable compensation therefor, it does not follow that as a part of the consideration it could make a covenant or accept a condition that would annul a provision of its charter, and bind the discretionary judgment of future councils and governing bodies of the municipality. If, in consideration of the grant of such right, the city might lawfully release one man and his property from future liability for street improvements abutting such property, by the same right it might release all property within its jurisdiction, and thus make street improvements impossible, or subject an entirely different fund to the payment of the costs of such improvements from that provided by law. This provision of

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