Fletcher v. City of Seattle

Dunbar, J. Without making a specific statement of this case, the contention of the appellant is that a city is not-liable for damages for the original grading of a street, where such grade is a reasonable one and the work is properly done. The court below, in an action for damages, under such a state of facts-, decided that the- city was liable, judgment was entered for the claimants, and. this appeal is taken from such judgment. This question has never been squarely presented to this court, although the appellant relies somewhat on the case of Brown v. Seattle, 5 Wash. 35, 31 Pac. 313, 32 Pac. 214, 18 L. R. A. 161; but while several questions were rather liberally discussed in the opinion rendered in'that case, the question before the court was whether, under the constitutional provision, art. 1. § 16, that no- property should be taken or damaged for public or private use without just compensation having been first made, damages were recoverable by the owner of land abutting upon a street for any permanent injury inflicted upon such abutting land by any material change of grade', or obstruction to the abutter, where the dam [629] ages thus inflicted exceeded the benefits derived from the grading or other improvement. A distinction has been made by the authorities between an action for damages for the original establishment of a grade and an action for damages for a change of grade. But whether or not this distinction is a sound one, we think it may be, especially where a grade has been finally established and improvements have been made with reference to such establishment. We do not care to extend the doctrine announced by the Brown v. Seattle case, nor apply it to a ease of original establishment of a grade, for it seems to us the right to grade the streets must necessarily be implied in the dedication, or the dedication is practically meaningless. The streets are dedicated for the purpose of giving access to the adjoining lots, or of making such lots available for residence or business purposes, and the value of the lots necessarily depends upon the maintenance ■of streets upon which they abut. This element of value must have been taken into consideration by the dedicator, and he ought not to be heard to demand damages for the establishment of a reasonable grade, or the maintenance of a reasonable road which must be established or maintained to make his property available as town or city property, the character which he sought to impress upon it when he filed his plat and dedicated the streets. The power to grade and improve streets and to make them convenient for public use is conferred upon municipalities'. It is conferred for a piurposei, and it is the duty of the municipality to exercise it in a reasonable way, and if it were not exercised the municipality obviously could not exist, thereby preventing the very object of the dedication. Every consideration of public policy as well as of private morals ought to compel the dedicator or his grantee to accept, without reward, the natural and necessary results of his own act. This view of the law is so tersely and so well expressed by Mr. Dillon, in his work on Municipal Corporations, Vol. 2 [630] (4th ed.), § 995., that we cannot do better than, to reproduce it here and indorse it. “When, under snch legislation, an owner dedicates without restriction land for a public street, he must, he taken to consent, for the reasons stated in a previous section, that the public authorities may determine grades, and possibly what future changes in grades may he necessary or desirable for the publici convenience. He must contemplate that hills within the limits of the street will he reduced from the natural surface, making a cut; that ravines and low places therein will he filled up to the ordained grade or level, leaving an embankment in front of the abutting property. The right to make such improvement of the street for street purposes would seem to he embraced lu his grant or dedication to the public. If lands for a street are unconditionally acquired by eminent domain, the right thus to graduate and improve the street for street uses proper is included in the compensation awarded. In view of these considerations, it seems to ns clear that for the original establishment of a grade line and the reduction of the natural surface of the street for street purposes to such line, there is no legal right or even natural equity in the dedicator or his assignee to compensation. . . . For the reasons above suggested, it seems to us that, on principle, the mere provision of the constitution imposing a liability for property damaged for public use does not create a liability on tbe part of tbe municipality for reducing tbe natural surface of tbe street, in tbe course of its normal and ordinary improvement for street purposes proper, to a grade line for the first time established. If there -are case’s to the contrary we doubt whether they were well considered and think that they are not well decided.” The conclusion which we have arrived at on this question renders it unnecessary to- determine the other questions discussed in the briefs. The judgment will he .reversed, and the case remanded, with instructions to' dismiss the action. Mount, O. J., Root, Crow, Rudkin, Fullerton, and Hadley, JJ., concur.