75 Wash. 375 | Wash. | 1913
This is a condemnation proceeding, brought by the city of Seattle to acquire a strip of land for the purpose of widening Fifteenth avenue, in that city. A trial before the court and a jury resulted in verdicts awarding to the owners of the land compensation, and judgment awarding to the city the land upon payment of the sums so awarded to the owners. W. P. McElwain, one of the owners, has appealed therefrom to this court.
The facts of the case, so far as necessary for us to notice them in discussing the contentions made in behalf of appellant, are in substance as follows: Appellant is the owner of the north 272 feet of a square tract of land, measuring approximately 320 feet on each side thereof, which tract fronts easterly on Ffteenth avenue; Bertha Sandall being the owner of the remaining southerly portion of the tract. The dedicated portion of Fifteenth avenue along the easterly boundary of the tract is only thirty feet wide. In September, 1911, for the purpose of widening Fifteenth avenue, the city council passed an ordinance providing for the acquisition of the easterly thirty-five feet of this tract by eminent domain proceedings, and for payment of the entire expenses of such proceedings, including compensation to be awarded to the owners, by special assessment upon the property benefited lying within the N. E. 14 °f the S. E. % of the S. E. % of the N. E. % of Sec. 5, Township 25 North, Range 4 East, W. M., which is the same tract of land, approximately 320 feet square, owned by appellant and Bertha Sandall. Thereafter in May, 1912, this proceeding was accordingly instituted against appellant and Bertha Sandall. By the verdict rendered in favor of appellant upon the trial, the jury, after awarding him compensation for the land taken, found that the remainder of his land would not be damaged by reason of the taking of the thirty-five foot strip therefrom. During the trial it appeared that the city had actually taken possession of the thirty-five foot strip, and graded it as a part of Fifteenth avenue, prior to the trial. It also appeared
The principal contention made by counsel for appellant is, in substance, that the ordinance providing for the institution of eminent domain proceedings is void and does not constitute legal authorization for such proceedings, because the ordinance purports to authorize the taking of land for public use and the payment of the entire expense thereof by special assessment upon the land from which the land proposed to be acquired will be taken. The first thought which would naturally arise in the mind of one having this contention presented to him, is that it suggests a matter of controversy to be considered only at the hearing upon the making and confirmation of the proposed special assessment. Counsel for appellant, apparently anticipating this, argue that, since the assessment district is, by the terms of the ordinance, limited to the land belonging to the appellant and
We have noticed that the ordinance provides that the assessment of the expense of the condemnation is to be made upon land “especially benefited,” within the district defined by the ordinance so as to include only the land of appellant and Bertha Sandall. The council is expressly authorized to define the assessment district in its initiatory ordinance by § 7790, Rem. & Bal. Code (P. C. 171 § 75), of the eminent domain law; but that does not constitute an authorization to assess any of the land within the district a greater sum than it would be actually benefited by the widening of Fifteenth avenue, nor could it be such an authorization because that section of the eminent domain law expressly provides, “that no property shall be assessed a greater amount
“When the ordinance providing for any such improvement provides that compensation therefor shall be paid in whole or in part by special assessment upon property benefited, the jury or court, as the case may be, shall find separately :
“(1)' The value of land taken at date of trial;
“(2) The damages which will accrue to the part remaining because of its severance from the part taken . . .”
It is apparent that this provision of the law is for the purpose of enabling the eminent domain commissioners and the court, in making assessment against benefited property, to determine what property is exempt from such assessment by reason of being damaged by the taking, and thus avoid the constitutional objection against assessing property which is damaged, for the very purpose of paying such damage.
Counsel for appellant place their principal reliance upon the decision of the United States supreme court in the noted case of Norwood v. Baker, 172 U. S. 269. That case, it is true, involved the taking by condemnation of a strip of land for a public street through the land of an owner and an attempt to pay for such taking by assessing the entire expense thereof, including compensation to the owner, upon the remaining land of the owner; and it was held that such an assessment was, in effect, an attempted exercise of the power of eminent domain without compensating the owner for the property taken. But a careful reading of that famous de
“The judgment of the Circuit Court must be affirmed, upon the ground that the assessment against the plaintiff’s abutting property was under a rule which excluded any inquiry as to special benefits, and the necessary operation of which was, to the extent of the excess of the cost of opening the street in question over any special benefits accruing to the abutting property therefrom, to take private property for public use without compensation.”
That decision did not absolutely relieve the remaining land of the owner of assessment to aid in paying the condemnation expense, but only had the effect of setting the particular assessment aside and leaving the village of Norwood to make such assessment as it could lawfully make. This is, in substance, the observation made upon the effect of that decision by Justice Shiras, speaking for the same court in French, v. Barber Asphalt Pav. Co., 181 U. S. 324. While the location and ownership of the land taken and remaining in this case is similar to that involved in Norwood v. Baker, it is plain that there is a marked difference between the method and rule of making this proposed assessment and the assessment which was there held unenforceable. Here we have an express statutory provision limiting the amount of the assessment to the actual benefits, and awarding to the property owner a hearing in court upon that very question, after the return of the assessment roll by the eminent domain commissioners and before the final confirmation of the assessment. Not until then is such an assessment rendered enforceable under our law. In addition to this’, our law, as we have seen, carefully guards against even an attempt to assess re
This, we are of the opinion, is as far as we can go, or need to go in our holding in this case to render appellant’s contention unavailing here. The questions of whether appellant’s remaining land is benefited, to what extent it is benefited, whether the city will be able to raise sufficient money to pay the entire cost of the condemnation by assessing appellant’s remaining land measured by actual benefits, and whether the city council abused its discretion in fixing the boundaries of the assessment district, cannot be prejudged in favor of appellant at this proceeding. All of these questions are determinable upon proof which may be offered in the superior court upon the hearing which must, under the law, be accorded to appellant, when the city seeks to have made and confirmed any assessment against his remaining land. We conclude that the ordinance is not void nor ineffective as an authorization for the prosecution of this eminent domain proceeding though it does not render certain the fact that the defined assessment district will yield sufficient funds, measured by benefits, to pay the entire expense of the proceeding. That is a contingency which, at least in contemplation of law, must always exist pending such proceedings up until the assessment is actually made and confirmed upon the hearing thereon in the superior court.
It is contended by counsel for appellant that the trial court erred in its rulings and instructions which withheld from consideration by the jury the fact of the previous
Other contentions of counsel for appellant, we think, do not call for discussion.
The judgment is affirmed.
Crow, C. J., Mount, and Gose, JJ., concur.
Chadwick, J., concurs in the result.