66 Wash. 146 | Wash. | 1911
Plaintiifs brought this action to recover damages caused by a regrade of Tenth avenue and Plummer street, in the city of Seattle. After the plaintiifs had introduced all of their evidence, the trial court was of the opinion that the defendants were not liable, and therefore discharged the jury and dismissed the.action. The plaintiifs have appealed.
It appears that the plaintiifs are the owners of two city lots, on the east side of Tenth avenue, and immediately in front of the intersection of Plummer street with Tenth avenue, in the city of Seattle. This avenue .extends north and south, while Plummer street extends west from. Tenth avenue.
Before the work was commenced in front of plaintiffs’ property, the plaintiffs caused the buildings to be removed to the rear of the lots and beyond where the slope would reach. The defendant Lewis & Wiley Company proceeded, as required by the contract with the city, to make the cut and slope. This was done by blasting and sluicing. The formation of the hillside was a stratified blue clay which was subject to slides. This fact appears to have been known to the city officers prior to the condemnation. While the excavation was in progress, the soil of plaintiffs’ lots by its own weight slid beyond the slope as provided into the ex
“All the lands, rights, privileges, and other property necessary to be taken, used or damaged in the grading or regrading of the streets in question and approaches thereto, in conformity with such established grades, and in the construction of the viaducts and slopes and retaining walls for cuts and fills upon the property abutting upon said streets and approaches thereto, are hereby condemned and appropriated for the public use, for the purpose of making such changes of grade and in the construction of the necessary viaducts and slopes and retaining walls in the grading and regrading of said streets.” Seattle Ordinance, No. 13,820.
The condemnation petition also recites that the object for which the proceeding was brought was to ascertain the damages to the land and property rights necessarily taken or damaged by reason of the proposed improvement, and by the construction of the necessary viaducts and slopes and retaining walls for cuts and fills on abutting property in the manner prescribed by said ordinance, and for a release from all liability to the owners of such property, or others having an interest therein that may be damaged or injuriously affected by reason of the improvement provided for in said ordinance. The trial court, upon these facts, was of the opinion that the purpose of changing the slopes was to protect the street and travel thereon from slides which might occur, and that the whole damage to the property by reason of the cut was determined in the condemnation proceedings and paid to and accepted by the owners of the’ property at that time; and because the character of the soil and its disposition to slide was known, the damages which occurred on that account were, or should have been, tried and. determined in the condemnation proceedings, and may not be tried in this action, even though the damages were actually greater than might have been anticipated at that time.
In this case it is conceded that the city, in addition to the cut, undertook to make a slope of one-to-one upon the abutting lots. The purpose of this slope is apparent. It was to so cut down the lots that the remaining soil thereon would provide for the lateral support. If the remaining soil would stand upon the slope, the street and travel thereon would thereby be protected, and the only injury, if any, to the lots by reason of the regrade would be the removal of the wedge-shaped tract and the difference between the level lots and the lots in the elevated position above the street. The purpose was therefore' two-fold, (1) to protect the street, and (2) to lessen the damage by obviating the question of lateral support. The street was already a public street, and the city did not have to condemn any portion for a street.
Respondents now maintain that, because the ordinance required all the lands, rights,
It appears that the defendant Lewis & Wiley Company was a contractor who did the work as directed by the city. There may be some slight evidence of negligent work, but it is also shown that the damage would have resulted had the work been carefully done. It is apparent, therefore, that, if there is any liability, the city and not the contractor is responsible.
As to the defendant Lewis & Wiley Company, the judgment is therefore affirmed; but as to the city, the judgment is reversed, and the cause remanded for a new trial.
Dunbar., C. J., Parker, and Gose, JJ., concur.