38 Wash. 514 | Wash. | 1905
This action was commenced by appellants Horace F. Compton and Anna. B. Compton, his wife, against the city of Seattle; a municipal corporation, and B. H. Thomson, A. Lincoln Walters, and Luther B. Young, as members of the board of public works of said city, respondents, to enjoin said respondents from entering upon, taking, and damaging certain real estate of appellants. The complaint alleges, that appellants were, at the time of filing said complaint, and had been at all times for ten years prior thereto, the owners in fee simple of the easterly one hundred and eight feet of lot 4 in block 48 of Bell & Denny’s Third Addition to the city of Seattle, King county, Washington; that at all of said times they had been, and were still, in the actual, notori-ous, and peaceable possession thereof; that said lot ahuts on Second avenue, extending along the easterly side there
To this complaint respondents, on October 13, 1901, filed an amended and supplemental answer, in which, after making certain denials, they, by way of a separate further and affirmative defense^ alleged that on the. 2d day of March, 1903, the council of said city duly passed an ordinance' No. 9311, entitled:
“An ordinance providing for the opening, widening and altering, and for making changes in the grade of Second avenue and Second avenue North, and contiguous and proximate cross streets; and for the construction of all slopes or retaining walls for cuts and fills upon real property abutting on said avenue and said cross streets, between Pike street and John street, in the city of Seattle; and providing for the taking and damaging of land and other property necessary therefor, and for the ascertainment and payment of the just compensation to be made for the private property to be taken or damaged for said purpose; and for .an assessment upon the property specially benefited for the purpose of making such compensation;
Section 2 of said ordinance, inter alia, provided, that
“All lands, rights and privileges and other property within the limits of the above bounden and described territory, necessary to be used for the construction of slopes or retaining walls for cuts and fills upon real property abutting on any street or avenue in said above described territory, are hereby condemned and appropriated to the public use for the purposes of the construction of said slopes or of said retaining walls, for such length of time as such slopes or such retaining walls may be necessary to protect said avenue from slides which may occur upon real prop erty abutting,” etc.
Respondents further aSeged, that said ordinance is in full force and effect; that, in pursuance of the provisions thereof, the corporation counsel of said city did, prior to the commencement of this action, file in the superior court of Xing county, Washington, a petition in condemnation proceedings, praying that compensation be made for private property to be taken or damaged for the purposes mentioned in said ordinance, the same to be ascertained by a jury, or by the court in case a jury be waived; that said petition in all respects complied with the act of the legislature of the state of Washington entitled,
“An act to enable cities of the first class to exercise the right of eminent domain for the taking and damaging of land and property for public purposes, providing a method for making compensation therefor, and providing for special assessments in certain cases upon property benefited, and declaring an emergency,”
approved March 9, 1893 (Bal. Code, § 775, et seq.); that in said condemnation proceeding appellants appeared by their attorney; that trial was had before said court and a jury; that the damages to appellants’ said lot by reason
Appellants demurred to said affirmative defense^, which demurrer being overruled, they filed a reply, in which they substantially admitted the allegations of the answer
Appellants make several contentions, the substance of the same being, (1) that the act of the city in entering upon said seventy-seven feet and constructing said slope is not merely a “damaging” of the real estate, but is a “taking” thereof, for which appellants have not been compensated in the manner required by § 16, art. 1, of our state constitution; (2) that the city is not authorized to take for slopes; (3) that the issues herein set forth have not been finally adjudicated in the condemnation proceeding. Other contentions have been made by appellants, but the above are the substance of their arguments. Respondents contend, (1) that all of the matters presented by the appellants’ pleadings herein are res judicata; (2) that the construction of the slope running back on plaintiffs’ premises from the margin of the street is not a “taking” of that portion of said premises, but is a “damaging” only,
After a diligent examination of the record, and a careful consideration of the briefs, arguments of the parties, and the authorities, we are of opinion that both contentions made by the respondents are correct. While we do not regard it as necessary to consider whether or not the damaging of appellants’ lot by the grading of said slope would be a taking of his property, the question of'former adjudication being decisive of this case-, nevertheless we will state it has heretofore been held by this court in Brown v. Seattle, 5 Wash. 35, 31 Pac. 313, 32 Pac. 214, 18 L. R. A. 161, and Swope v. Seattle, 36 Wash. 113, 18 Pac. 607, that the word “damaged,” used in § 16, art. 1, of the constitution, does not, mean the same as “taken.” The construction of slopes such as are in contemplation here is not necessarily a “taking” but is a “damaging” merely. Formerly in the constitutions of most of the states, the Word “damage” did not occur, but “taking” only was mentioned. Under such constitutions, many courts of the Union, in order to- do justice and prevent what might otherwise be held to be merely damnum- absque injuria in the eyes of the law, frequently extended the meaning of the word “taking” beyond its original and strict construction, and applied it to almost any act by which the land of am individual, although not physically taken, sustained a special injury, decreasing its value. The word “damaged,” or its equivalent, has, however, during later years been incorporated in the constitutions of many states and is found in our constitution, in § 16, art. 1. This word certainly has some meaning, as distinguished from the word “taken.” In Swope v. Seattle, supra, Anders, J.. used the following language:
See, also, Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. 820, 31 L. Ed. 638.
If there were no- condemnation of the right to damage appellants’ lot by constructing slopes, the result would be a cut seventy-seven feet deep in front of their premises, with perpendicular banks on either side of the street. But, as suggested by respondents in their brief, experience has shown that in such cuts the soil will fall and slide into the street, and then, as has been held by this court in Parke v. Seattle, 5 Wash. 1, 31 Pac. 310, 32 Pac. 82, 34 Am. St. 839, 20 L. R. A. 68, the city would be liable for damages to the lot caused by removing the supporting earth. To guard against such a contingency, the city, under the provisions of § 16, art. 1 of the constitution, the act of 1893, and said ordinance No. 9311, has caused the damages of appellants to be ascertained in advance, and has paid the same into court, thereby obviating any liability to future actions. Appellants are not excluded from that portion of their premises covered by the slope, they are paid for the damage to their lot caused by its construction, and can, when it is constructed, use said lot in any way compatible with the safety and free use of the adjoining street. They may excavate their full lot to the
The principal question, however, is whether the condemnation proceeding as to all the issues involved in this action is res judicatai. There is some dispute between appellants and respondents - as to whether a proper or valid appeal has been taken from the condemnation proceeding. Apparently respondents entertain the view that the appeal should have been taken from the first judgment entered March 5, 1904, ascertaining the amount of the damages; while appellants are of the opinion that the appeal taken by them from the final order or judgment entered October 13, 1903, is proper and brings up for review by this court all questions decided in said action. We do' not at this time express any opinion as to the sufficiency or insufficiency of said appeal, it not being necessary or proper for us to do so. If the appeal has been properly taken, all of appellants’ rights can be adjudicated when it is heard in this court. If said appeal has not been properly taken, then the condemnation proceedings are, in our opinion, res judicata:.
“The rule is well settled that a judgment of a court of competent jurisdiction, delivered upon the merits of a cause, is final and conclusive between the parties in a subsequent action upon the same cause, not only as to all matters actually litigated and determined in the former action, but also as to every ground of recovery or defense which might have been presented and determined therein. This rule is applied both at law and in equity. Thus, a court of equity will not grant a relief which might have-been had in a prior action at law; nor, on the other hand,
“Where jurisdiction has attached by due service of the petition and notice, and an award is regularly made, and» is not appealed from, the rights of the respective parties become definitely fixed by the judgment, and it is conclusive and binding on all parties of record, their privies and. grantees, including the successor of the petitioner, unless appealed from. The parties and their privies are concluded as to all matters which were put in issue, or might have been put in issue, in the condemnation proceedings, . . .” 15 Cyc. 923.
See, also, Sayward v. Thayer, 9 Wash. 22, 36 Pac. 966, 38 Pac. 137; Kromer v. Friday, 10 Wash. 640, 39 Pac. 229, 32 L. R. A. 671; State ex rel. Ledger Pub. Co. v. Gloyd, 14 Wash. 5, 44 Pac. 103; Wiseman v. Eastman, 21 Wash. 174, 57 Pac. 398; Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195; Burke v. City of Kansas, 118 Mo. 309, 24 S. W. 48; Stronsky v. Hickman, 116 Iowa 651, 88 N. W. 825.
We fail to see that appellants have raised a single question by the pleadings in this action which was not raised, or could not have been properly raised and adjudicated in the condemnation proceeding. In fact, the instructions set forth in the reply, which appellants allege were requested by them and refused, show they asked the court to charge that- the. construction of said slopes was a “taking” and not a “damaging.” They also, by requested instructions, asked for the full value of said seventy-seven feet over and above all benefits, and that damages for said buildings be ascertained and fixed at their full value, on the theory that said seventy-seven feet and said buildings were taken. If it was error to refuse these instructions in the condemnation proceeding, appellants could have
“A judgment in a condemnation case, tbe court having jurisdiction of tbe subject-matter and of tbe parties, is conclusive against collateral attack by tbe latter, though tbe judgment may be erroneous on its merits, or irregular in its form.”
In Stronsky v. Hickman, supra, tbe facts show that a public highway bad been established and opened for many years across Stronsky’s land; that said highway cut off a small triangular portion thereof, upon which certain buildings were located, and that certain citizens petitioned tbe board of supervisors to establish a new road which would run across tbis small portion of bis land. Stronsiry, tbe plaintiff, appeared and filed a claim for damages in tbe anuí of $1,500. Appraisers were appointed and ascertained bis damages to be $25, and no appeal was taken by him. Under a statute of Iowa, no buildings of an owner of property could be removed in establishing a road without tbe consent of sucb owner. Stronsky commenced an action in equity to enjoin tbe opening of tbe public road, on tbe theory that he bad not consented to tbe removal of bis buildings. In dismissing tbe action, tbe supreme court of Iowa said:
Hnder the authorities above mentioned, and many others which we have examined, we think all questions sought to he litigated by appellants in this action are res judicata, or can be considered by this court on appeal from the judgment in the condemnation proceedings, if an appeal has been properly taken and perfected. Said condemnation proceedings cannot be collaterally attacked, nor can errors alleged to have heen committed therein be. reviewed in this action. We are also of the opinion that the entering upon said lot, and the constructing of said slope by respondents in pursuance of said condemnation proceedings, was not a "taking” of the property of appellants, hut was a “damag
We find no error in the record, and the judgment of the superior court is therefore affirmed.