This is а proceeding instituted hy the city of Seattle, under its power of eminent domain, for the purpose of taking a strip of land thirty-nine feet wide to be used as an alley. The appellant, the Washington Refining Company, was the owner of a portion of 'the
The appeal presents only questions as to whether there was error relating to the question of the assessment of damages to the portion of the property not taken. The proposed alley passеd over the property of a considerable number of persons other than the appellant here; hut since there is hut the one appeal, no reference need he made to other property owners affected by the improvement.
It is first argued that there was no competent testimony in the case to warrant a verdict of no damage to the remainder. Whether the remaindеr was damaged was, of course, a question of fact, the city’s witnesses testifying that there was no such damage, and the appellant’s witnesses testifying that there was damage in a considerable amount. Even though it might appear that the weight of the testimony upon this ques
A number of the assignments of error relate to the failure of the court to give certain requested instructions and tо certain instructions which were given. Upon the question of damage to the remainder, the appellant requested an instruction to thе effect that, in' determining such damage, the jury were not to take into consideration the fact that the city might at some future time grant a рermit to the appellant to connect the operations in the two units of its plant, separated by the alley, by either an overhead crossing or underground conduits. The respondent does not seem to question the correctness of this request, but claims that it was cоvered in an instruction given, wherein the jury were told that, when the alley was taken for street purposes, the city became the owner of the fee thereof, and the owners of abutting property had no greater rights to the use of such alley than any other inhabitants of the сity. It does not seem to us, however, that this instruction covers the ground contained in the request which was refused. To say that the abutting propеrty owner has no greater rights to the alley than any other inhabitant of the city is not the same thing as telling the jury that, in determining damages to the remainder, they should not take into consideration the fact that the city might at some future time permit an overhead crossing or underground conduit. It must be remembered that in this case it was not proposed by the city in any legally binding form, or at all, to grant to the appellant the right to suсh overhead crossing or underground conduit. The requested instruction was appropriate in the light of the evidence taken.' When the appellant’s engineer was testifying in chief,
The respondent, refers to another instruction in which the jury were told that, if they found from the evidenсe that any ordinance of the city governs the erection of such plants as the Washington Befining Company, they should, in arriving at their verdict, tаke into consideration such damages, if any, as might be caused in order to comply with such ordinance of the city. This instruction obviously doеs not relate to any ordinance under which the appellant might obtain a permit either to arcade the alley or to cаuse pipes to be placed thereunder; but it unquestionably does relate to the fire ordinance which was introduced in evidencе. Even though it did relate to the permit ordinance, if there be such, it still would not cover the question. As already pointed out, this record doеs not show that the city is legally bound to grant a permit, and, in the absence of such a showing, the fact that it might at some future time, in its discretion, grant suсh permit had no proper place in this case. The instruction requested, or one of like import, should have been given.
The judgment will be reversed, and the cause remanded with direction to the superior court to grant a new trial.
Ellis, C. J., Parker, Fullerton, and Webster, JJ., concur.