63 Wash. 245 | Wash. | 1911
This is a companion case to Michaelson v. Seattle, ante p. 230, 115 Pac. 167, and involves a controversy
In this case counsel not only offered to show that there was no existing stipulation at. the time of the trial consenting to the provision in the condemnation judgment adjudicating" that the remaining portion of the land should be assessable, but went further and offered to prove that the verdict was in fact rendered in pursuance of a stipulation entered into at the time of the trial, whereby it was agreed between the parties that the remaining property should not be assessed, and that the jury should find the'damages to such remaining property in a nominal sum, for the express purpose of rendering such remaining property nonassessable. This proof seems to have been offered for the purpose of showing that whatever consent had been given by the school district that its property should be assessable for this improvement, in the original petition therefor addressed to the city council, was abrogated by common consent by this stipulation entered into at the time of the trial. So that the offered proof of this stipulation was, after all, only an offer to prove that there was, at the time of the condemnation trial and judgment, no existing stipulation between the parties, either sub
Counsel for the city introduced in evidence in this case the original property owners’ petition addressed to the city council asking for the institution of the condemnation proceedings and the making of the improvement. We do not find this petition in the statement of facts as an exhibit, but assume that the purported copy thereof set out in the city’s answer is a true copy. Counsel for both the city and the school district proceed upon the theory in their argument that this petition was signed by the proper officers of the school district, with other property owners, though we are not able to otherwise determine such fact from this record. Tt, ap
“And your petitioners do hereby severally agree, and do hereby bind themselves to pay their just and proportionate part of the cost of improving each sub-district as herein-above provided for, irrespective of any award of damages that may be made in favor of any individual property owner in the condemnation proceeding herein petitioned for.”
Counsel for the school district objected to the introduction of this petition, and argues that the signing of such petition by the officers of the school district, in so far as the above quoted provision therein waiving the right to object to the assessment is concerned, is ultra vires and not binding upon the district. We are not cited to any authority in support of this contention, and are unable to see why such an act is not within the power of the proper officers of the district. School property is not exempt from the power of eminent domain here involved (Laws of 1905, p. 84) ; our attention has not been called to any statute exempting school property from special assessment for the improvement of streets adjacent thereto; and it would seem that the proper officers of the school district could make contracts and concessions looking to the improvement of such streets and the assessing of the school property therefor. We think the petition was not erroneously admitted in evidence, so far as the power of the officers of the school district is. concerned. We also think it is clear that the language of the petition above quoted amounts to a waiver on the part of the school district to object to the assessment of its property to pay a proper proportion of the cost of the improvement, irrespective of any award of damages that might be made in its favor in the condemnation proceedings, and if it was in no manner abrogated by some subsequent agreement between the school district and the city, it would be sufficient to warrant the levy of an assessment, regardless of the finding of damages, and regardless of whether or not the court had juris
The city is apparently relying upon two grounds of estoppel against the school district to support the assessment: (1) The adjudication in the condemnation judgment; and (2) the waiver in the original petition asking for the improvement, independent of such adjudication. As the record in this case now stands, the city made a prima facie case upon both grounds. The adjudication, we have seen, carries with it the presumption of jurisdiction, and hence its validity; while the agreement to an assessment in the original petition not being shown to have been in any manner abrogated, was of itself sufficient prima facie to support the assessment. The error of the learned trial court in this case consisted of the exclusion of the offered evidence of the school district to overcome the city’s prima facie case made upon both grounds.
' All other questions involved on this appeal we think are disposed of by what has been said in the Michaelson case. The decree of the learned trial court, except in so far as it corrects the description of the land appropriated, which is a question not here involved, is set aside, with direction to permit respondents to introduce their proof as offered, and for further proceedings not inconsistent with this opinion.
For the reasons stated in the Michaelson case, the respondents will recover their costs from the city upon this appeal.
Gose, Fullerton, and Mount, JJ., concur.