42 Wash. 506 | Wash. | 1906
— This action was brought by petitioner, a street railway corporation, to have assessed the amount of damages sustained by appellants by reason of damage to' their property caused by improvements which respondent railway company intended to make. The contemplated improvements consisted of the erection of a high bridge upon Boone avenue, over the Spokane river, and the grading of Boone avenue toward the east from said river, in the city of Spokane. The property of appellants is situated on the south side of said avenue, abutting thereon, and close to the river. The following diagram will show the relative positions of the river, streets, lots and blocks, referred to herein.
The grade as constructed by respondent on Boone avenue, east of the river and in front of appellants’ property, varied in height from 13.5 feet to 5.4 feet, the highest point of the grade being near the bridge. Prior to the construction of the bridge and grade, appellants’ property was on a level with Boone avenue, and with Helena and Hogan and South Biverton streets.
The case was tried before the court, sitting without a jury, and findings of fact and conclusions of law were made and filed. A part of finding numbered 8 reads as follows:
“Block 5 was damaged by the change in the grade of Boone avenue and the construction of the bridge, over and above the benefits accruing to it from said improvement in the sum of*508 one dollar. Lot 1, in block 24, was damaged by tbe construction of the bridge and tbe grading of Boone avenue, over and above tbe benefits accruing to it from the improvement, in tbe sum of $90. Tbe fee simple interest in lot 2, in block 24, was damaged by tbe construction of tbe bridge and the grading of Boone avenue, over and above the benefits it received from said improvements in tbe sum of $52.50, while tbe leasehold interest in said lot 2 was damaged in the sum of one dollar.”
In a finding referring to tbe improvements upon block 5, and lot 1, of block 24, tbe court said:
“These improvements were not depreciated in value over and above tbe benefit accruing from tbe improvement in any sum whatsoever, and therefore I have made no' allowances for damages thereto' in fixing the amounts above specified.”
Tbe principal contention made by tbe appellants is that the lower court .permitted the benefits which accrued to appellants’ property by reason of tbe construction of tbe bridge across the river to be offset against tbe damages caused to their property by reason of tbe grading and filling of the street in front thereof, urging that said benefits were not special but general. It is shown that tbe construction of this bridge, and the grading and filling of the street in front of said premises, were parts of one and tbe same plan of the improvement in that vicinity. Tbe city bad granted tbe street railway company an ordinance which required them, upon tbe construction of their bridge across tbe river, to maintain the same as a thoroughfare for tbe use of tbe public, and required them also to lay their tracks upon Boone avenue, east of tbe river, so that said tracks would be flush with tbe grade established for said street. In order to comply with this last mentioned requirement, it was necessary for the railway company to fill in tbe street extending from tbe end of tbe bridge and past tbe property of tbe appellants, and further on to make a considerable cut in order to get a practicable grade from the end of said bridge to that portion of the street
Appellants claim that the building of this bridge and the opening and maintenance of the same for highway purposes was a benefit to their property of the same character enjoyed by property owners generally in all that portion of the city, and for this reason could not he deemed “special,” as that term is understood in connection with matters of this kind. We do mot think this contention can, be upheld./ The construction and maintenance of a bridge across the river, with one terminus almost immediately in front of appellants’ property, furnished an advantage of access to and from the business portions of the city that was of special value to said property. Doubtless many other pieces of property in that immediate vicinity were likewise specially benefited, but we think that the advantages and the increase of value which would of necessity come to this particular property by reason of the construction and maintenance of said bridge, as aforesaid, was such as to characterize these benefits as special, and such as should be offset against the damages. Hot only was the bridge itself a special benefit, but the improvement consisted in so grading the street as to make a thoroughfare past appellants’ property to and from the end of the- bridge and to that portion of the city lying to the eastward/ It is difficult to distinguish this from those cases occurring continually where property is being assessed for the improvement of streets in front of or adjacent thereto.
Appellants urge that the court was in error in ptermitting the respondent company to- amend its petition by stinking out the words “irrespective of benefits.” Their contention appears to be that, as this work was being done, or to be done-, hv the railway company, it was not entitled to offset bener fits against damages. But the record shows that the work was done by the railway company under the direction, au
• Appellants take exception to the action of the court in overruling objections made to questions asked by respondent relative to the benefits and damages, claiming that said questions were such as to call from the witness an estimate of the entire benefits without reference to their being special or general. While the form of the questions may not have been the most accurate, yet we do not believe any prejudicial error was occasioned thereby. The case having been tried by the court without a jury, it may well be presumed that the court considered and weighed the evidence with reference to those benefits which, under the law, could be deemed special, and it is so reviewed here.
It is urged that the court was in error in not making an allowance for damages to the improvements upon the lots and blocks in question, and it is claimed that damages should have been allowed to the owner of the improvements in the same proportion as was allowed to the owners of the fee. We do not think the record shows any error in this particular. The trial court heard all the evidence and personally viewed the premises. It does not necessarily follow that the improvements would be damaged in the same proportion as the land itself. While the use of the improvements might depend much upon the condition and value of the land, yet as an item of personal property, they could hardly be said to be injured by what took place in the street in front of the real estate, except in an indirect manner. We are not disposed to change the findings of the trial court in this particular.
In support of our conclusion as to what constitutes special
Lewis v. Seattle, 5 Wash. 741, 32 Pac. 794, where this court, among other things, said:
“It is generally held that only such benefits as are special and peculiar to the particular property can be taken into consideration. But the laying out or widening of a street may be a special benefit to the property abutting thereon, and this benefit may be offset against the damages to the owner whose land is taken therefor, although parties upon the opposite side of the street are similarly benefited and are not charge* able therewith, for the reason that none of their lands were appropriated and no damages were claimed by them.”
Hilbourne v. Suffolk, 120 Mass. 393, 21 Am. Rep. 522, where it was said:
“The advantages that an abutter may receive from his location on a highway laid out, altered or widened, are none the less peculiar and special to him because other estates on the street receive special and peculiar benefits of a similar kind. Allen v. Charlestown, 109 Mass. 243. The ruling in that case, held to be bad, was that if all the estates abutting on the street are benefited in a similar manner, the amount of his benefits cannot be deducted from the damages of any abutter.”
Metropolitan etc. R. Co. v. Stickney, 150 Ill. 362, 37 N. E. 1098, 26 L. R. A. 773, where this language was employed:
“If a piece of property is enhanced in value, such enhancement — or, in other words, benefit to the property, cannot be said to be common to any other piece of property. Each piece of property specially enhanced in value is thus specially benefited within itself, and irrespective of the benefit that may be conferred by the improvement upon other properties. It follows, necessarily, that where the benefits are designated as ‘general benefits,’ ‘benefits common to other property,’ and the like expressions, to be found in decided cases, it is meant those general, intangible benefits which are supposed to flow to the general public from a public improvement. Thus, the paving of a street in a city may confer*512 special benefits upon properties near it by an increase in their value, and at the same time, by the convenience afforded the general public, confer a general benefit. So' a railroad built through a town' or through the country may he a general benefit, by affording additional facilities for travel and commerce, and thereby be a benefit to the community at large. But the effect of such general benefits upon any particular piece of property would be impossible of ascertainment, and speculative, and it has always been held that such benefits are not to be considered for that reason.”
Kirkendall v. Omaha, 39 Neb. 1, 57 N. W. 752, where the supreme court of Nebraska spoke as follows:
“The word 'common’ is ordinarily understood to apply to the general public, when not qualified by some word or phrase of limitation. The term 'general benefits,’ when unqualified, should probably be accepted in the same sense as the term 'common benefits’; that is to say, when there is no limitation expressed, it should be deemed applicable to the general public, rather than as embracing as general hut a limited part of the public. . . . The term 'special benefits’ implies benefits, such as are conferred specially upon private prop>erty by public improvement, as distinguished from such benefits as the general public is entitled to receive therefrom. . . . If the improvement should result in an increase in the value to adjacent property, which increase is enjoyed by other adjacent property owners as to the property of each exclusively, the benefit is special; and it is none the less so because several adjacent lot owners derive in like manner special benefits each to his own individual property.”
We think the findings of the trial court are sustained by the evidence, and that the conclusions based thereupon were correct.
No reversible error appearing in the record, the judgment of the superior court is affirmed.
Mount, O. J., Hadley, Fullerton, Dunbae, Cbow, and Rudkin, JJ., concur.