100 Wash. 636 | Wash. | 1918
In the year 1913, the city of Seattle, by ordinance, instituted proceedings to establish a street, to be known as Empire Way, extending from the intersection of Rainier and Winthrop streets to
“That the entire cost of the improvement provided for- in this ordinance shall be paid by special assessment upon the real property specially benefited in the manner provided by law, and that no portion shall be paid from the general fund of the city of Seattle.”
After the enactment of the ordinance, condemnation proceedings were begun in the superior court of King county to acquire the property necessary to be taken in the establishment of the street, and to ascertain the compensation necessary to be paid for the property taken and the property damaged by reason of the taking. This proceeding resulted in awards which, with costs and accruing costs added, required approximately $171,000 to satisfy. Subsequent to the entry of the judgments on the awards, a supplemental petition was filed by the city pursuant to statute, praying the court that an assessment be made on the property benefited sufficient to pay the awards with costs and accruing costs, and the court referred the matter to the board of eminent domain commissioners of the city of Seattle for the purpose of making the assessment. The commissioners, following the direction of the improvement ordinance, assessed the entire cost of the proceedings to the local property bordering on the street. When the assessment roll was returned by the commissioners, objections thereto were filed by a number of property owners on grounds, among others, that their property was assessed in excess of benefits. A hearing was had
The principal contention of the appellant is that the evidence does not justify the conclusion reached by the trial court. The evidence we shall not review in detail. On the part of the city, was the assessment roll returned by the commissioners, made by the statute competent evidence of the matters therein recited, and the testimony of each of the eminent domain commissioners to the effect that the property was not, in his opinion, assessed in excess of the benefits conferred on it by the establishment of the streets. On the part of the objectors, was the evidence of a number of witnesses testifying to assessments in excess of benefits on individual tracts of property, and the evidence of a number of others testifying to an assessment in excess of benefits upon the property of the district as a whole. The witnesses for the objectors, for the greater part, gave the reasons for theii' conclusions, which, upon the face of the record, seem as cogent and persuasive as do the reasons given by the commissioners for a contrary view. All of the witnesses testifying on the subject,moreover, agree that the way was in the nature of an arterial highway,' wider and more expensive than it
But the appellant contends that this conclusion is not sufficient to overturn the assessment. Attention is called to the rule, frequently announced by this court, that the courts will not set aside an assessment roll on any mere difference of opinion between the commissioners and independent witnesses as to the extent of the benefits conferred by an improvement, but that it must appear that the commissioners acted fraudulently, arbitrarily, or upon a fundamentally wrong basis before such a result will follow, and argue that there was here nothing more than a difference of opinion as to the extent of the benefits, nothing to show fraud, arbitrary action, or that the. assessment was made upon a fundamentally wrong basis.
The rule may be admitted, we think, without admitting the application sought to be made of it or the conclusion drawn therefrom. By statute it is made the express duty of the court before which the proceeding is pending, whenever objections are made to an assessment roll, to inquire whether the property of the objector is assessed more or less than it will be benefited by the.improvement, and, if it so finds, to enter judgment accordingly (Rem. Code, § 7795); and by the following section the court is given authority, at any time before final judgment, “to modify, alter, change, annul or confirm any assessment . . . and make all such
The appellant argues that this conclusion compels the city to do what it expressly decided it would not do, namely, bear a part of the cost of the improvement. We cannot so conclude. The statute provides (Eem. Code, § 7784), that the right of the city to enter upon
It is further objected that the court was without power to reduce the assessments on the property of the non-objecting property holders.- But in answer it is sufficient to say that we held to the contrary in the case of Seattle v. Sylvester-Cowen Inv. Co., 55 Wash. 659, 104 Pac. 1121. See, also, Van Der Creek v. Spokane, 78 Wash. 94, 138 Pac. 560; In re West Wheeler Street, 85 Wash. 146, 147 Pac. 873; Strelau v. Seattle, 85 Wash. 255, 147 Pac. 1144.
The view we take of the record requires an affirmance of the judgment. It is so ordered.