This is an application made to this court for a writ of supersedeas. The record discloses that the city of Seattle, pursuant to an ordinance duly enacted providing for the improvement of Rainier avenue, instituted a condemnation proceeding to acquire the necessary rights and property for that purpose. The improvement sought to be made extended over the avenue for some eight miles, and affected some twelve hundred distinct parcels of property, and some three thousand five hundred persons, among which was the Seattle, Renton & Southern Railway Company, and certain rights and properties owned by it. This company, in addition to owning specific real property affected by the contemplated improvement, owned and operated a railway system, the railway tracks of which extended along the avenue for practically the entire distance of the improvement. For a part of the distance over which the tracks were laid, it owned the fee in the land, and for other parts an easement only. The improvement as directed by the city ordinance provided for a change in the grade of the street which will require a readjustment of the railway company’s tracks throughout the entire distance. In the condemnation suit, the city took no judgments at all against the company for some three-fourths of the way, and in the remainder took judgments and awarded damages only for a right of joint user in the street; that is to say, the right to use the street as a public highway jointly with the right of the railway company to use it in the operation of its railway. The railway company appealed from the judgment of condemnation, and the judgment entered on the award of the jury, and subsequent thereto the city paid the amount of the awards into court, and now claims the right to proceed with the improvement notwithstanding the appeal. The supersedeas is asked that action on the part of the city may be stayed pending a hearing of the appeal in this court.
The city contends that, under § 7783 of Rem. & Bal. Code (P. C. 171 § 61), this court is without jurisdiction to grant a supersedeas. That section does provide that no appeal
The merits of the controversy are not now before us, and it will be understood that we express no opinion on the merits of the question suggested. They are mentioned for the purpose of showing that the controversy is real, and that, if they be found meritorious, a constitutional right of the appellant will be violated if the supersedeas is not granted.
Our conclusion is that the operation of the judgment should be suspended during the pendency of the appeal, and to that end a supersedeas order will be entered on the filing of a bond by the appellant in the sum of $10,000, conditioned for the payment of such damages as the city of Seattle may suffer by reason of the appeal should the cause be affirmed. The bond will be filed with the clerk of the superior court from which the appeal is taken, to be approved by the judge thereof.
Crow, C. J., Mount, Morris, and Parker, JJ., concur.