City of Vancouver v. Corporation of the Catholic Bishop

Morris, C. J. This is one of those cases, oft before the courts, wherein the property owner is seeking relief from an assessment made by a board of eminent domain commissioners in local improvement districts, upon the contention that such assessment is in excess of benefits, arbitrary and inequitable. The appeal is taken from the order confirming the assessment roll. As is usual in these cases, there is a difference of opinion as to the amount of benefit conferred by the local improvement, but courts will not concern themselves with differences of opinion as to the actual benefit. The final decision of such questions must rest somewhere, and it is the settled policy of the courts to rest it with that body upon which the law has conferred the determination, save in those cases where the record discloses that such body has acted arbitrarily or upon a fundamentally wrong basis. Viegle v. Spokane, 78 Wash. 359, 139 Pac. 33; In re Boyer Avenue, 79 Wash. 664, 141 Pac. 58. Appellant’s property, of an approximate area of two city blocks, was used for church purposes, and the improvement consisted of extending a street north and south through its center. The assessment was levied upon the appellant’s property and upon the blocks to the north and south. An illustration from the record will indicate the basis upon which appellant supports its contention that the assessment upon its property was arbitrary and fundamentally wrong. One of appellant’s lots cornering on the extended street was assessed at $312.50, while the lot opposite appellant’s lot and somewhat larger was assessed at only $103. Looking at the plat, a reason suggests itself for this difference which may or may not have been the one moving the commissioners to fix the assessment at these sums. The lot opposite, on the northeast corner of Columbia and Thirteenth streets, [321] was benefited only to the extent of extending Columbia street south through appellant’s property; it already was a corner lot having north, east and west approaches. Its frontage was in no manner changed or interfered with. It was given only an additional approach from the south, while appellant’s lot, prior to the improvement, had a street frontage of sixty-six feet on Thirteenth street, and was located in the center of the block facing Columbia street to the north. By extending Columbia street to the south, it was made a corner lot, its north frontage being reduced to thirty-three feet, and it was given an added west frontage of one hundred feet. We assume it has received full compensation for the thirty-three feet taken, and the only question before the commissioners was the benefit to the remainder. This change from a lot in the center of a two-block area to a corner lot with a frontage of one hundred feet on the street extension was a factor to take into consideration in determining the benefit. Had the entire assessment been levied upon appellant’s property, then the case would be similar to In re Eighth Avenue Northwest, 77 Wash. 570, 138 Pac. 10, but such is not the fact. Neither does it appear that the commissioners charged back against the remainder of appellant’s property the amount of the condemnation award made for the property taken and then assessed the remainder for the full benefits in addition, as was done in In re Ninth Avenue West, 76 Wash. 401, 136 Pac. 488. The assessment was distributed over appellant’s property and upon the blocks to the north and south, and we can gather from the record nothing, save that there was a sharp difference of opinion as to the extent of the benefit. It must be borne in mind that it is not the amount of the assessment that should influence either the lower court or this court in disturbing it. The test is the benefit conferred. In determining the extent of the benefit to a given property by a municipal im [322] provement, it is not unusual to find wide difference of opinion; but mere difference of opinion between witnesses as to the amount of benefits conferred does not of itself establish such a case as calls for the interference of the court. It must, in addition, be shown that the rule by which the benefits were measured was fundamentally wrong and so arbitrary and unjust, as affecting the property owner, as to evidence “fraud, mistake (of fact or law, but not matters of opinion), or arbitrary action amounting to a manifest abuse of discretion.” In re Westlake Avenue, 40 Wash. 144, 82 Pac. 279; In re Fifth Avenue etc., 66 Wash. 327, 119 Pac. 852. The main objection here seems to be that the property of appellant is used for church purposes, and that the improvement is not beneficial for such purposes to the extent of the assessment. The use to which the property is put cannot of itself determine the question of benefits, but the usual test is the increase of value for any use to which the land might be adapted. Northern Pac. R. Co. v. Seattle, 46 Wash. 674, 91 Pac. 244, 123 Am. St. 955, 12 L. R. A. (N. S.) 121; Newell v. Loeb, 77 Wash. 182, 137 Pac. 811. In the first of these cases, it was said: “The particular use of the land cannot affect its liability to assessment; abutting property cannot be relieved from the burden of a street assessment simply because its owner has seen fit to devote it to a use which may not be specially benefited by the local improvement. The benefit is presumed to inure, not to such present use, but to the property itself, affecting its value.” The record in this case does not show any fact which should lead us to disturb the judgment, and it is affirmed. Mount, Main, Parker, and Ellis, JJ., concur.