42 Wash. 113 | Wash. | 1906
— This action was brought to procure an injunction against the city of Seattle, the members of its board of public works, and the Independent Asphalt Company, to prevent the lowering of the grade of Thirteenth avenue north, a street in said city. The plaintiffs are the owners of lots 9 and 10, in block 9, Supplemental Plat of Erank Pontius’ addition to Seattle, and also of lots 13 and 14, block 6, in the Eirst Division of Capitol Hill addition to the city. Said lots have a continuous frontage upon the above named street. It is alleged that the defendants are paving and macadamizing the street; that they are wrongfully and unlawfully excavating and lowering the level of the street in front of said propr erty; that the intended cut will be some three feet below the surface of the street as it now exists. It is stated that no ordinance has been passed by the city authorizing the threatened change of the established grade.
It appears that an improvement district was organized for
It is first contended that it was error to grant any restraining order in the premises. It is said that the city denies that it is changing the grade, and it is also argued that, inasmuch as the lots are unimproved, the threatened change can result in hut slight damage, for which reason the court should not have interfered. With regard to the fact as to the threatened change of grade, we think the court was justified, under the pleadings and affidavits submitted, in reaching the conclusion that such change was threatened by the city’s officers. We also think the showing as to resultant damage justified interference by injunction. One of the affidavits placed the damages as high as $5,000, and the attendant facts stated are such as, we thiuk, bring the ease within the rule established by this court, that where a proposed change of the grade of a street will seriously damage an abutting owner’s property, the change may he enjoined, unless the damage has been ascertained and paid. Brown v. Seattle, 5 Wash. 35, 31 Pac. 313, 32 Pac. 214, 18 L. R. A. 161; Swope v. Seattle, 35 Wash. 69, 76 Pac. 517.
While affidavits submitted at the hearing alleged that the order had the above stated effect, yet appellants were retsisting any temporary injunction whatever, and it does not appear that the court was especially requested to eliminate the above feature at the time the last order was made. It is reasonable to suppose that, if the point had been made clear to the court by the presentation of a prepared order to that effect or otherwise, the request would have been granted.
Mount, O. J., Fullerton, Rudkin, Crow, Root, and Dunbar, JJ., concur.