11 Wash. 632 | Wash. | 1895
Lead Opinion
The opinion of the court was delivered by
The plaintiffs were owners' of a certain tract of land abutting on Seventh street in the city of Olympia, and had a residence thereon, and they brought this action for damages against the defendant for constructing its line of railway along said street. The grounds of damages alleged are in substance,^that the defendant cut a deep tunnel along said street adjacent to the plaintiffs’ premises, and constructed a railway through the same, and covered said tunnel with timbers and plank for the purpose of making a roadway along said Seventh street for public travel, thereby raising the grade of said street several feet above the grade that had been previously established by the city of Olympia, and leaving plaintiffs’ lots at a depth of several feet below the top of said covered way; and that in- the running of trains through said tunnel great quantities of smoke and sparks from the engines are thrown off; and that the noise produced by the trains
The defendant answered, denying certain of the material matters alleged in the complaint, and pleaded by way of an affirmative defense, that it was a railroad corporation duly organized under the laws of this state; that the city of Olympia was and is a municipal corporation, created and existing under and by virtue of an act of the legislature of the territory, now state, of Washington, entitled “An act incorporating the city of Olympia,” approved November 28, 1883, and under and by virtue of the laws of said state, and among other things alleged that the city of Olympia had granted to the defendant the right to construct, equip, maintain and operate its line of railroad over, along, through, across and under certain streets and alleys in said city, which included the street in controversy; and that the defendant had in all respects complied with the terms and conditions of said ordinance; and that by the construction and maintenance of the roadway, and the construction of said tunnel, the plaintiffs’ property had been drained and otherwise greatly benefited.
A demurrer was interposed to this affirmative defense, which was sustained by the court. A trial was had and verdict and judgment rendered for the plaintiffs, from which the defendant has appealed.
It is contended that the court erred in sustaining the demurrer to this affirmative defense. By § 5 (Laws 1883, p. 109) of its charter the city of Olympia was granted exclusive control of all streets within its limits. By § 10 it was empowered to authorize or prevent the location and laying down of railway tracks and
In enacting said ordinance the city made no provision for the payment, by the railroad company or otherwise, of any damages that might be caused there^ under to abutting property. We are of the opinion, however, as the change of grade was made upon the railroad company’s motion, and for its benefit, that the fair inference to be drawn therefrom is that the railroad company was to be responsible therefor. In asking the change and accepting the rights conferred it should be held to have assumed all liability for damages occasioned thereby. But what was the measure of its liability? The material question is, was any
As to the rule of damages, the constitutional provision aforesaid makes no distinction as to the purposes for which land is taken or damaged, except as it may be limited by the powers of the party taking, but it does make a distinction as to persons. A municipal corporation can assess or offset benefits. No other can. The city having changed the grade and authorized the improvement of the street as aforesaid, if it was an improvement, it should make no difference as to the rule of damages whether the city contracted for the performance of the work directly, or simply empowered
Suppose, after the enactment of the ordinance and the performance of the work in accordance therewith, the railroad company had seen fit to change the location of its road and had constructed it elsewhere. The improvement of this street was the city’s property —the city’s work—and in an action brought for damages, benefits could have been taken into consideration. The question is determined by determining who caused the injury, if any. Clearly the city changed the grade and authorized the improvement. No other power, unless possibly the legislature, could have done this. The railroad company had no such rights.
Upon the former appeal in the Hatch case, we said, in reversing it: “It is not'shown or alleged that the city did any of the acts or things of which appellants complain.” This statement of a fact may possibly need some qualification; at least, it must be understood, in so far as constructing the tunnel and building the roadway is concerned, as having reference to the actual performance of the work only; for it was and is conceded that the city passed the ordinance. That case was then before us on an appeal by the plaintiffs from an order of the lower court requiring them to make the city a party defendant, and we held it was not necessary for them to do so. The foregoing discussion may seem somewhat in conflict with that holding, but it is only nominally so, at most. Conceding that the plaintiffs could have primarily proceeded against the city for the construction of the tunnel and the change of grade, the city might have recovered any sum it was thus required to pay of the railroad company; conceding, if the railroad company and the city were both joined as defendants, as the
But the plaintiffs not only sought to recover for the cut and the grade, but damages occasioned by the running of trains as well. For this the railroad company was primarily and solely liable, and the city in no wise responsible. In any event, that holding became the law of the Hatch case, and the question is not raised in either of the others. In the Hatch case the railroad company, had set up the ordinance aforesaid as a complete defense, and a majority of the court held that it did not constitute one. When the cause was remanded new pleadings were filed, and the answers of the rail-load company in the three cases were similar. In so far as the property of the plaintiffs was specially -benefited by the construction of the tunnel and roadway, these answers are a defense to the plaintiffs’ action, except as to damages occasioned by the running of trains. As against the damages in this respect no benefits can be offset.
We have observed that some proof was admitted which was inconsistent with the rulings of the court in sustaining the demurrer, probably because such testimony was not objected to; but the whole case shows that the question of benefits was not fairly submitted to the jury, and the error of the court in sustaining the demurrer was not thereafter remedied.
Certain questions raised which relate to the instructions are connected with and dependent upon the
Some proof was admitted relating to special damages sustained by the plaintiffs in several particulars, one of which was as to the necessity for and cost of building a certain bridge, and another as to making changes in sewerage connections. This proof was objected to on the ground that it was inadmissible under the pleadings, there being no allegations in the complaint of damages in the respects claimed; and we think the point was well taken. Plaintiffs were entitled to show only such damages as were the natural and necessary consequence of the changes that had been made by the defendant in the absence of any allegation as to special damages. Another relates to proof offered by the plaintiffs to show the cost of filling in the lot, or raising it to the grade as changed. We think this proof was objectionable also, as it was not alleged or shown that such filling was necessary. As all of these questions were of the same general character, it will be unnecessary to discuss each one in detail, what we have said being sufficient for the guidance of the court upon a re-trial of the cause.
Reversed and remanded for a new trial, with leave to the parties to amend their pleadings, if desired.
Hoyt, 0. J., and Anders, J., concur.
Dissenting Opinion
(dissenting).—I dissent. I think all the material questions raised in this case were decided in favor of the respondents’ contention in the case of Hatch v. Tacoma, Olympia, etc., R. R. Co., 6 Wash. 1.
Gordon, J., having been of counsel, did not sit.
