35 Wash. 69 | Wash. | 1904
On February 26, 1904, Jacob Swope and wife filed a complaint in the superior court in and for King county, alleging in substance that they now are, and at all times therein mentioned, have been, the owners and in possession of lots 13 and 14, in block 20, in Brooklyn Addition to the city of Seattle, which said lots are situated at the northeast corner of Tenth avenue, FT. E., and Fortieth avenue, E., in said city of Seattle, King county, state of Washington; that the surface of said lots is practically level and at a suitable and proper grade with said streets as they have heretofore existed for the past five or six years, and as said streets have heretofore been graded and used, and as the said plat was accepted by the city of Seattle; that, on or about the year 1900, the plaintiffs constructed a dwelling house upon their said lots at great expense, which they have ever since occupied as their home; that said Tenth avenue, FT. E., has heretofore been graded and “sidewalked,” and said grade is a suitable one, and the grade of said streets at their said intersection is already about five feet below the surface of plaintiffs’ said premises, and said dwelling house was located and built on said premises with reference to the grade of said streets as they then existed; that there is no necessity, in order to improve said streets and make them suitable for public use, to make any cut or fill at their said intersection; that the city of Seattle, through its ■ board of public works, has let a contract to the defendant William Stanley for regrading said Tenth avenue, FT. E., in front of said premises, and for grading said Fortieth avenue, E., at the south side of said premises, in such a manner as to cut down said streets at their
In their complaint the plaintiffs prayed that a restraining order be issued, enjoining the defendants from further proceeding in the grading of said streets, and from removing any earth from plaintiffs’ said premises, until just compensation be made for taking and damaging said premises, and that a time be set by the court in said restraining order within which compensation shall be made, and that it be further ordered that, upon failure to make such compensation within the time limited by the court, the restraining order be made permanent, and the defendants, and each of them, and their agents and employees, be ordered and directed forthwith to cease
At the time of filing their complaint, the plaintiffs filed an affidavit of Jacob Swope, which is practically a repetition of the allegations of the complaint, and, upon the complaint and accompanying affidavit, they moved the court for a restraining order directing the defendants to refrain from doing any of the acts complained of in the complaint until the further order of the court, and to show cause why such temporary restraining order should not be made permanent. An order was thereupon issued directing the defendants, and each of them, to appear before Hon. W. K. Bell, one of the judges of said court, on the 4th day of March, 1904, at 9 :30 o’clock, A. M., of said day, or as soon thereafter as counsel could be heard, to show cause why such restraining order should not’ issue. An emergency order was also entered, restraining the defendants and their agents and servants from suffering or committing any of the acts complained of until the further order of the court. The amount of the bond to he given by plaintiffs was fixed at $100, and such bond was duly executed, approved, and filed according to law.
On March 3, 1904, the defendants William Stanley & Co. appeared in the action and moved the court to require the plaintiffs to make, execute, and file in the cause an additional bond, conditioned as required by law, in the penal sum of $5,000. This motion was based upon all the records and files in the cause, and upon the affidavit of Samuel Stanley, which was served and filed therewith. The affidavit of Samuel Stanley, in support of the motion for an additional or a larger bond, states that the defendant William Stanley is a member of the copartnership of William Stanley & Co., which company
Upon the showing thus made by the contractors, William Stanley & Co., it was ordered by the court, on March 4, 1904, that the plaintiffs execute and file a good and sufficient bond, conditioned as required by law, in the sum of $3,000, the same to be filed on or before March 7, 1904, and that, in the meantime, the temporary restraining order heretofore issued herein be suspended, and that on failure of plaintiffs to file said bond on the morning of said March 7, the temporary order heretofore issued be vacated and set aside. The plaintiffs having failed to comply with the order last above mentioned, within the time therein designated, the court, on the 7th day of March, 1904, “vacated, set aside, and annulled” the temporary restraining order issued on the 26th day of February,
In response to this writ the superior court certified and sent up to this court the records, files, and proceedings designated in said writ, and which we have hereinbefore set out. At the hearing the defendants appeared by counsel and produced affidavits going to show a defense to the action on the merits, but it seems plain to us that, in this proceeding, we are restricted to the consideration of
Our constitution, art. 1, § 16, provides that, “no private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner.” And the plaintiffs, claiming that their property was being taken and damaged for public use, filed their complaint for an injunction, setting out the acts of the defendants, which they deemed violative of their constitutional rights. Upon the showing made by the plaintiffs — and which was certainly sufficient — the judge to whom the application was made issued the temporary restraining order above mentioned, and fixed the bond to be given by plaintiffs at a sum deemed by him proper and reasonable under the circumstances.
That injunction is a proper remedy in cases of this character has uniformly been held by this court. See, Brown v. Seattle, 5 Wash. 35, 31 Pac. 313, 32 Pac. 214, 18 L. R. A. 161; Olson v. Seattle, 30 Wash. 687, 71 Pac. 201, and cases cited. In Brown v. Seattle, supra, this court, after a careful consideration of the constitutional provision above quoted, and the decisions of other courts based upon similar provisions, announced the doctrine that damages are recoverable from a city, by the owner of land abutting upon a street, for any permanent injury inflicted upon such land by any material change of grade or obstruction to the abutter’s access to the street, when the damages thus inflicted exceed the benefits derived from the grading or other improvement; and that when the proposed grading of a street will seriously depreciate the value of abutting property, the grading may be enjoined until the damages be ascertained and
But, while it is clear that an owner of property abutting upon a street may, by injunction, prevent a municipality from damaging the same, without first making compensation therefor, by materially changing the grade of the street in front thereof, it is equally clear that one who invokes the remedy of injunction and asks for an injunction or restraining order, pendente lite, must comply with the statute requiring the execution of a bond to the adverse party. Bal. Code, § 5438. When a statute requires the giving of a bond as a condition precedent to the granting of an injunction or restraining order, the court has not the power to disregard such statute and dispense with the bond. 2 High, Injunctions (3d ed.), §1620; 1 Spelling, Injunctions (2d ed.), § 935. See, also, Keeler v. White, 10 Wash. 420, 38 Pac. 1134; Cherry v. Western Wash. etc. Co., 11 Wash. 586, 40 Pac. 136. But where the bond given for obtaining a preliminary injunction is shown to be insufficient, a new bond may be required in a proper case, as a condition precedent to continuing such injunction to trial. 2 High, Injunctions (3d ed.), §1626; 1 Spelling, Injunctions (2d ed.), §941. Ho new bond, however, should be ordered in such cases, unless good reason be shown why the bond already given is insufficient. In injunctions and restraining orders, the legislature has confided the duty of fixing the amount of the bond to the court or judge granting the order (Bal. Code, §5438), but this is a legal and not an arbitrary discretion, and, in the language of the supreme court of
The only question, therefore, for determination in the •case at bar, is whether the superior court, upon the showing made by the defendants Stanley & Co., was justified, in the exercise of the discretion vested in it by law, in ■ordering the plaintiffs to execute a new bond, and in annulling and setting aside the bond originally required by the court, and given by the plaintiffs. Assuming that the allegations of the complaint are true, it clearly appears that the city, by its agents and servants, was inflicting .great injury and damage upon the plaintiffs’ premises, in direct contravention of one of the plain and mandatory provisions of the constitution. And, it thus appearing that the plaintiffs’ rights were clear and that such rights were being illegally invaded by the defendants, the court, in the absence of a statute requiring the giving of a bond, would have been fully warranted in issuing the restraining ■order without any security whatever from the plaintiffs.
It must be borne in mind that neither the city nor its board of public works moved the court to require the plaintiffs to give additional security. That motion, as we have already said, was made by William Stanley & Co. alone, .and was based upon the records and files in the cause, and the affidavit of Samuel Stanley. And it will be observed that that affidavit controverted none of the facts stated in the verified complaint, or the additional affidavit of Jacob Swope, one of the plaintiffs. It did not show that the city, its officers and contractors, or either or any of them, were rightfully interfering with the property of the plaintiffs, or even that the defendants were doing the things complained of in the exercise of a power conferred upon them
The judgment is therefore reversed, and the cause remanded, with instructions to reinstate the bond given by plaintiffs on February 26, 1904.
Fullerton, C. J., and Hadley and Mount, JJ., concur.