116 Wash. 648 | Wash. | 1921
Lead Opinion
This is an appeal from a final decree of the superior court of King county, by the terms of which the city of Seattle was enjoined from constructing, at a selected site in Volunteer Park, a reservoir for the storage of water for the uses of the city and its inhabitants. The appeal also involves an allowance imposed as terms upon granting a trial amendment of the city’s answer that necessitated a continuance.
The city owns and operates its waterworks system, and the growing need for an additional reservoir has been apparent to the city authorities for several years. A number of sites were carefully considered and inves
It may be observed, that, assuming the city council acts in good faith and within the scope of its lawful authority, courts of equity are generally without power to interfere, or as stated in State ex rel. News Publishing Co. v. Milligan, 3 Wash. 144, 28 Pac. 369, viz.:
“No principle of equity jurisprudence is better established than that courts of equity will not sit in review of proceedings of subordinate political or municipal tribunals, and that where mattérs are left to*651 the discretion of snch bodies the exercise of that discretion in good faith will not, in the absence of fraud, be disturbed. High on Injunctions (3d ed.), §1240.”
See, also, Ewing v. Seattle, 55 Wash. 229, 104 Pac. 259; Twitchell v. Seattle, 106 Wash. 32, 179 Pac. 127; Pomeroy’s Equity Jurisprudence (4th ed.), vol. 4, § 1765.
Volunteer Park consists of about fifty acres, acquired as follows: Forty acres from James M. Col-man and wife by warranty deed to the city June 12, 1876, and the east half of blocks E and F, Phinney’s Addition to Seattle, located immediately west of the forty-acre tract and separated from it by an avenue afterwards vacated, by warranty deeds to the city in the year 1902. All of the conveyances were by straight warranty deeds, none of which contained any reservation, restriction or limitation upon the title or use of the property thereby conveyed.
In 1887, by ordinance, the city converted the forty-acre tract into a park. Later it made provision for a water tank which was constructed in the park, then called the City Park. In 1901, by ordinance, the park was given the name of Volunteer Park. In 1900 and 1901, the city constructed a reservoir, still in use, in the park. The city has spent about $139,000 in improving the park.
The first theory of the complaint and argument' of respondents is that the ordinance of the city declaring the property to be a public park, the subsequent use of it as such, and the expenditure of public money for its adornment, amount to an irrevocable dedication of it for park purposes. Indeed, it is argued that the course of the city with reference to the park operates as a conveyance of the land to the public for that specific use, so that it may not be thereafter devoted to a
The argument is without merit, we think, and the cases cited are not applicable here. Cincinnati v. Louisville & N. R. R. was a case involving- the right of a railroad company to condemn a right of way for an elevated track across a public landing at Cincinnati that had been dedicated by the former owner for public use. It was decided that condemnation might be had, and, among other things, it was said, in effect, that a dedication by a private owner of land as a common, for the use and benefit of the town forever, as shown on a plan, and the acceptance by the town and sale of lots under the plan, constitutes a contract. The case of Cincinnati v. White involved the dedication of privately owned land to a city for public use, accepted and used as such by the city. It was held that a person who thereafter acquired a paper title from the former owner to the same property could not disturb the city in its right to the title and use of the common. The case of Hoadley’s Adm’rs v. San Francisco related to land that was granted by Congress to the city for the purpose of public use as squares, and it was held “lands so dedicated could not lawfully be conveyed by the city to private parties.” The doctrine of such cases is well established and recognized, but they are outside of the inquiry here. The city of Seattle acquired this property in fee simple, by purchase. During its ownership it has used it to its own fancy for the purposes of a park and a reservoir. The situation falls within the rule laid down in the case of Caldwell
“The particular tract upon which appellants’ property abuts was deeded without reservation and the full fee simple title was conveyed. Under such conditions, the city holds clothed with every incident of ownership. Parks are relatively necessary in modern cities, but sewers are absolutely' necessary, and courts will not control the discretion of the governing bodies of cities when they have ordained that a sewer shall be placed in a park, nor will the necessity of laying the sewer on top of the ground be reviewed.
“The judgment of the court is sustained by reference to the principles announced in Seattle Land & Imp. Co. v. Seattle, 37 Wash. 274, 79 Pac. 780. The building of the sewer upon the city’s property is not necessarily a diversion of the uses of the park, and is as to appellants damnum absque injuria.”
And here, as in that case, there is no destruction of the park, but only an- appropriation of a part of the total area for a necessity different from strictly park purposes.
Further, it is contended by the respondents that the city charter, which was adopted after Volunteer Park had been established, forbids interference by the city council with the use of the public park as such. It contains no specific provision to that effect. The charter distributes the corporate powers of the city under fourteen different departments, including the “department of parks ’ ’ in charge of a board of park commissioners. Numerous provisions of the charter are referred to which it is claimed show that the park board and not the city council has ultimate control in deciding if a portion of the park shall be used for a reservoir. A repetition and analysis of all such provisions
“to acquire.by purchase, or by exercise of the right of eminent domain or otherwise, and for the use and in.the name of the city, such lands and other property as may be deemed necessary, proper or convenient for any of the corporate uses provided for by this charter, and to acquire' for the use of the city any property by gift, bequest or devise, and to dispose of all such property as it shall have, as the interests of the city may from time to. time require. ’ ’ •
. The relative powers of the department of parks-and of the city council are that those of the one are admin
Another theory of the complaint (supported by some lay evidence) that has not been sustained, in our opinion, is that the selected site, by reason of its proximity to a cemetery, is an improper place to store water to be supplied for domestic use. The proof clearly shows two satisfactory answers: (a) The contour of the ground is such that the drainage from the cemetery is away from the site of the reservoir; and (b) the common sense view of the city health officer (an experienced sanitary expert), who, after listening to the construction and engineering experts testify that it was impossible to prevent all leakage from a reservoir, constructed as this would be with a lining of concrete, upon being asked as to the danger of the water becomr ing contaminated and polluted because of the nearness of the cemetery, replied by saying: “It is impossible, the lining of concrete cannot leak both ways.”
By far the greater part of the large record in this case is devoted to the subject of nuisance. Respondents rely on §,§ 943 and 944, Rem. Code, §§ 8231 and 8232, Pierce’s 1919 Code, which provide, among other things, that “an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property, is a nuisance, and the subject of an action for damages and other and further relief,” and that “such action may be brought by any person whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance.” The present reservoir in the park
None of the witnesses would expect to find artesian water in the hill. The evidence shows that there has been no perceptible subsidence or disintegration of the embankment of the existing reservoir since it was built twenty years ago and that, as the trial court found, it is entirely safe at the present time. The evidence shows with convincing force that the geological formation of the site and hill is highly suitable for the safe construction and maintenance of the additional reservoir; it shows, in the same manner, that the con
On the contrary, there were expert witnesses for the respondents who testified in reason to the incompleteness of the plans and specifications with reference to the total project, including the matter of drainage. That testimony was given, however, at a time when the city, by its answer, was apparently committed to a defense of its plans and specifications for the construction of the earthen dam only as affording a safe and proper structure. Thereafter, upon application and order, the city’s answer was amended to show that the completed work was to be accomplished by units, and that, after the earthen work was done, still another
The relief here sought is an appeal to equity. Under the facts, we are compelled to find against the respondents. The reservoir is a necessity. The construction and maintenance' of it in a proper manner and place would not constitute a nuisance in a legal sense; nor
“To entitle a plaintiff to prohibition by injunction from a court of equity, either provisional or perpetual, he must not only show a clear legal and equitable right to the relief demanded or to some part of it, and to which the injunction is essential, but also that some act is being done by the defendant, or is threatened and imminent, which will be destructive of such right, or cause material injury to him. A state of things from which the plaintiff apprehends injurious consequences to himself, but which neither actually exists nor is threatened by the defendants, nor is inevitable, is not a sufficient ground for an injunction.
“Injury, material and actual, not fanciful or theoretical, or merely possible, must be shown as the necessary or probable results of the action sought to be restrained. ’ ’
In the case of City of Rochester v. Erickson, 46 Barb. (N. Y.) 92, it was said:
“It is not enough to make out a doubtful or possible case of danger; but the danger apprehended must appear to be imminent, and in the natural course of events clearly impending, and the mischief in its nature and character irreparable.”
In Missouri v. Illinois, 180 U. S. 208, 40 L. Ed. 497, it was said:
*660 “We fully agree with the contention of defendants’ counsel that it is settled that an injunction to restrain a nuisance will issue only in cases where the fact of nuisance is made out upon determinate and satisfactory evidence; that if the evidence he conflicting and the injury he doubtful, that conflict and doubt will be a ground for withholding an injunction; and that, where interposition by injunction is sought, to restrain that which is apprehended will create a nuisance of which its complainant may complain, the proofs must show such a state of facts as will manifest the danger to be real and immediate.”
In Lake Erie & W. R. Co. v. City of Fremont, 92 Fed. 721, it was said:
“But it is well settled that an injunction does not issue in such cases unless the probability of danger is clearly shown, and the existence of the nuisance clearly made out upon determinate and satisfactory evidence, and that in no case will the chancellor interfere by injunction where the nuisance sought to be abated, or restrained is eventual or contingent, or where the evidence is conflicting, and the injury to the public, or to the individual complaining, doubtful.”
Again, the rule is stated and supported by a long list of cases in 14 R. C. L., p. 354, § 57, as follows:
“A mere apprehension of future injury is not enough to warrant the issuance of a permanent injunction; it must appear, to the satisfaction of the court, that such apprehension is well grounded, that there is a reasonable probability that a real injury, for which there is no adequate remedy at law, will occur if the injunction be not granted. If it is doubtful or contingent equity will not interfere by injunction.”
Some of the cases in this court to the same effect are Hughes v. McVay, 113 Wash. 333, 194 Pac. 565; Rea v. Tacoma Mausoleum Ass’n, 103 Wash. 429, 175 Pac. 961; Winsor v. Hanson, 40 Wash. 423, 82 Pac. 710; Rockford Watch Co. v. Rumpf, 12 Wash. 647,
The conclusion reached on the merits of the case makes it unnecessary to discuss or otherwise dispose of the second branch of the appeal relating to the terms imposed by the court on granting the city leave to amend its answer.
The judgment is reversed, with directions to set aside the injunction and dismiss the action.
Parker, C. J., Main, and Tolman, JJ., concur.
Mackintosh, J., dissents.
Rehearing
On Rehearing.
lEn Banc. January 3, 1922.]
Upon a reargument of this case, the court has decided that the opinion of the Department on the prior hearing is incorrect, and that the judgment of the trial court should have been affirmed.
A reference to the prior opinion is sufficient to give an understanding of the facts of the case. Without determining whether Volunteer Park has been dedicated by declaration, use and the expenditure of public money thereon to exclusive park purposes, so that it cannot now be used for any other purpose, and without determining whether exclusive jurisdiction has been placed in the park department rather than in the city council, and leaving undetermined the question of whether the respondents are entitled to an injunction against the appellant based on the impairment of the beauties of the park, leaving also undetermined the question whether the proposed reservoir might be contaminated by its proximity to a large burial ground, we will pass to the question which determines the respondents’ rights to an injunction.
The respondent property owners complain against the construction of this reservoir in Volunteer Park,
The test as to whether a structure of the proposed character is to be declared a nuisance turns on whether the complaining property owners are under a reasonable apprehension of danger, and the question of the reasonableness of the apprehension turns again, not only on the probable breaking of the reservoir, but the realization of the extent of the injury which would certainly ensue. That is to say, the court will look to consequences in determining whether the fear existing is reasonable. For instance,.if the reservoir were being built in some place where, should it break, the resultant damage would be merely to property which could ade
It'cannot be said that the property owners 'dwelling in the shadow of the fifty-six foot embankment would not live under a reasonable apprehension, based upon the testimony in this case, that sooner or later they and their property would be destroyed by this contemplated reservoir. Reservoirs built upon the expert advice of city engineers, and sealed with the approval of other experts called in to substantiate that advice, have been known to not hold water. All the experts agree that there will be an inevitable leakage, to some extent, in the proposed reservoir. With this advice of these experts, and with a general knowledge of the contour of the ground, the nature of the soil, the prevalence of slides in similar situations in Seattle, and the disasters that have happened from the bursting of impounded waters, the respondents have, as a result of all these things, a fear which interferes with their comfortable enjoyment of life and property, and allege that the construction of the reservoir annoys, injures and endangers their comfort, repose and safety, and renders them insecure in life and the use of their property. If they have reason for this attitude they must succeed in this action. If this situation supports a reasonable expectation that disaster may happen, and such expectation leads to a depreciation in the value of adjoining properties, the structure will be considered a nuisance.
This court has already held in Everett v. Paschall, 61 Wash. 47, 111 Pac. 879, Ann. Cas. 1912B 1128, 31 L. R. A. (N. S.) 827, that the building of a tuberculosis sanitarium in the residential section of a city will be en
*665 “The question is, not whether the fear is founded in science, hut whether it exists; not whether it is imaginary, but whether it is real, in that it affects the movements and conduct of men. Such fears are actual, and must be recognized by the courts as other emotions of the human mind. . . . Comfortable enjoyment means mental quiet as well as physical comfort. . . . Nuisance is a question of degree, depending upon varying circumstances. There must be more" than a tendency to injury; there must be something appreciable. The cases generally say tangible, actual, measureable, or subsisting. But in all cases, in determining whether the injury charged comes within these general terms, resort should be had to sound common sense. . . . The theories and dogmas of scientific men, though provable by scientific reference, cannot be held to be controlling unless shared by the people generally. . . The only case we find holding that fear alone will not support a decree in this class of cases is Anonymous, 3 Atk. 750. . . . Our statute modifies, if indeed it was not designed to change this rule. Under the facts, we cannot say that the dread which is the disquieting element upon which plaintiffs’ complaint is made to rest, is unreal, imaginary or fanciful.”
It was held in Goodrich v. Starrett, 108 Wash. 437, 184 Pac. 220, that under §§ 943 and 8309 of Bern. Code (P. C. §§ 8231 and 9131-68), which define nuisance, and which add to the common law definition the new element of “comfortable enjoyment of one’s property”, that an undertaking establishment in the residential section of a city, so constructed as to affect property values in the neighborhood, is a nuisance and will be enjoined. In that case the case of Rea v. Tacoma Mausoleum Ass’n, 103 Wash. 429, 174 Pac. 961, 1 A. L. R. 541, referred to in the department opinion, was discussed and held not to be in conflict with the case of Everett v. Paschall, supra. The reference to cases from other jurisdictions which follow the common law rules on nuisance,
In the case of Hughes v. McVay, 113 Wash. 333, 194 Pac. 565, it was held that the facts showed that the property of the persons complaining was so far away from the situation of the detention home that the fears of the complainants were based only on imagination, conjecture and uncertainty, and were the product of a fastidiousness which the law would not sanction. These cases and the cases upon which they are founded present facts which the writers of the opinions in Goodrich v. Starrett and Hughes v. McVay, supra, hold distinguish them from the situation here. In the present case, we find a very large section of the city of Seattle, composed of men and women who, in the ordinary business of life, are not to be charged as victims of hysteria, nor ready dupes of conjectural and imaginary fears, having a very real and present apprehension that their lives and properties will be jeopardized by the hanging of this modern sword of Damocles above their heads, and that fear is bolstered by the testimony of expert witnesses, and confirmed by the common sense of any one to whom the facts come. It does not take the testimony of experts, although that was produced, to advise one that the proposed structure would cause a most serious depreciation of property values within the affected area. It is an obstruction to the free use of property, as it interferes essentially with the comfortable enjoyment of life and property. It is a nuisance, for it annoys, injures and endangers the comfort, repose, health and safety of these respondents and renders them insecure in life and the use of their property. The Department opinion refers to the reservoir as a necessity, and it may be so, but there is no contention made that the necessity exists to the point where it must be erected at this particular spot and no other.
Hovey, Bridges, Fullerton, and Holcomb, JJ., concur.
Concurrence Opinion
(concurring)—While I concurred with the majority of Department Two upon the former hearing, further reflection has convinced me of the error of that conclusion. I am moved to concur in the result reached in the opinion of Judge Mackintosh, more because of what seems to me would be the appalling nature of the catastrophe which would result from the breaking of the proposed reservoir, than because of the probability of such break occurring. If the breaking of the proposed reservoir would probably result in comparatively small damage and no loss of life, I would not demand proof of its safety with a high degree of. certainty; but in view of what now seems to me would be the appalling result of such breaking, I would want the necessity of its location there, and its safety, to be proven beyond all doubt, before withholding the injunctive relief prayed for. I think the evidence falls short of satisfying this view of judicial duty in this case. I therefore now concur in the conclusion reached by the majority opinion of the court sitting En Banc.
Dissenting Opinion
(dissenting)—I adhere to the views expressed in the former opinion, for the reasons therein given, and therefore dissent.
Main and Tolman, JJ., concur with Mitchell, J.
