108 Wash. 407 | Wash. | 1919
This action was instituted by the respondent, suing in her own right and in her capacity as executrix of her husband’s estate, to cancel an assessment levied by the appellant, the city of Spokane, upon real property, of which the respondent and her husband, subsequent to the time the assessment was levied, became the purchasers. The trial court entered a judgment cancelling the assessment, and the city appeals.
The facts are disclosed by the pleadings. On December 6, 1906, certain owners of real property in the
For reversal the. city makes two principal contentions ; first, that the question whether the property improved as a street was actually a street cannot be litigated in this form of action; and second, that the respondent is estopped by the acts of her predecessor in interest in the property to question the validity of the assessment.
While the authorities upon the first proposition are not in accord, we think the better rule is that a property owner whose property has been assessed for a purported street improvement may, in an action to set aside the assessment, show that the property improved was not a public street. The cases which announce the contrary doctrine seem to proceed on the theory that the city can acquire the property, and thus make the improvement available to the public and of benefit to the property of the complaining owners. But whatever may be the rule in the states announcing that doctrine, in this state a municipality cannot acquire such
There is, moreover, another reason for denying the principle for which the city contends. The city may not be able to exercise the power even if it so wills. In this state the power of taxation is limited. The city may find that the sum it can lawfully assess upon abutting property will be insufficient to meet the cost of acquiring the property, and may find that it cannot make up the difference from its general fund because of this limitation on its power of taxation. For the foregoing reasons it is possible that the city may never acquire the property on which the improvement is made, in which case the abutting property will not receive the benefit of the improvement, and clearly, as long as this possibility exists, there is no just principle upon which the assessment can rest.
In support of the second contention, the appellant relies upon the cases of Barlow v. Tacoma, 12 Wash.
It is true in this instance the owner did something more than petition and stand by without protest. He made affidavit as to facts tending to show that the property was a public street, but this we cannot think alters the situation. It. is not asserted that he did not state the facts truthfully, and all that he stated in the affidavit that was fairly within hi's knowledge could be true and still the property not be a public street. The affidavits were but evidence tending to establish the fact of title. The ultimate question was one which the city was required to determine, and it was the only body which had the power to have it effectively determined. Since the title to the property was in doubt, it was the city’s duty, before proceeding to improve it as a street, to remove the doubt. Having neglected this duty, it cannot be permitted to visit the loss upon another, who was innocent of wrong, and who had the right to assume that no duty required of the city had been neglected. Contrary to the contention of the city, therefore, we cannot conclude that the property owner was equally guilty with the city in causing the loss which must necessarily follow, or that he must bear it as the person who, by his acts, made the loss possible.
The judgment is affirmed.
Mount, Parker, and Bridges, JJ., concur.
Holcomb, C. J., dissents.