City of Seattle v. Gatton

136 P. 488, 76 Wash. 401, 1913 Wash. LEXIS 1829

• Court: Washington Supreme Court
• Decided: November 22, 1913
• Docket: No. 10972
• Status: Published

Opinions

Fullerton, J.

The city of Seattle by ordinance directed that Eighth avenue west and Ninth avenue west, with certain others of its streets, be widened, and condemnation proceedings were had to acquire the read property necessary to be taken for that purpose. The awards made by the jury for the property taken, added to the costs of the proceedings, aggregated $28,410.25. The appellants, Asa Gatton and Alice Gatton, his wife, owned a tract of land lying between Eighth avenue west and Ninth avenue west, having a frontage on each of these streets of 260 feet. In the widening of the streets, a strip of land approximately 30 feet in width was taken off each side of the tract, for which the jury awarded the appellants $4,209.50. The city had directed the improvement to be made at the expense of the property benefited, and the matter was referred to the eminent domain commission to make up an assessment roll. The commission returned a roll in which they assessed the appellants’ property remaining at $5,000.70. Exceptions were taken to the roll by the appellants, and a hearing was afterwards had thereon, in which the assessment was confirmed in so far as it affected the appellants’ property.

The assessment roll as returned into court showed that property directly across the street from the appellants’ property, of practically the same area and apparently affected in the same way by the widening of the street, was assessed in the aggregate at less than one-third the amount that was assessed against the appellants’ property. In explaining this difference, Commissioner Pardee is quoted as follows:

“Upon cross-examination Mr. Pardee testified that the eminent domain commission took into consideration the $4,209.50 awarded to Mr. Gatton for the portion of his land taken, in determining the amount that they assessed against the remainder of his property; and also took into consideration the fact that Mr. Gatton’s property had not given any part of the streets while the property opposite across 8th and 9th avenues west had already given thirty feet for street purposes.

“Witness Pardee stated that the eminent domain commission considered that a condemnation of this kind confers benefits upon the property in the same manner as the platting of property by the dedication of streets and that the improvement was a greater benefit to Mr. Gatton’s property than the property on the opposite sides of 8th or 9th avenues west for the reason that the property opposite Mr. Gatton’s property either on 8th avenue west or 9th avenue west faced upon a thirty foot street, the line of which conformed to the street lines to the south and that property could be considered as platted property with boundary line established. And the eminent domain commission did not consider this property benefited in the same amount as Mr. Gatton’s property for the further reason that property was established as lots with definite street line which gave it a value, in the opinion of the commission, equal to Mr. Gatton’s property remaining after the condemnation plus the value of the strip condemned, and as' the properties were of equal value after the condemnation a simple rule of arithmetic would not permit an equal assessment upon the opposite side of the street from Mr. Gatton’s property.

“And on further cross-examination the witness Pardee finally admitted that the eminent domain commission had charged back against the remainder of Gatton’s property the amount of the condemnation award made for the portion of the property taken, and had then assessed the remainder for the full benefits in addition.

“But the witness explained his answer by stating that the result of the reasonings by which the board of eminent domain commissioners levied this assessment on Mr. Gatton’s property, might, and in this case probably was somewhere near the same as though they had charged back to the property the amount of the condemnation award but that the commission did not reach its conclusion by doing so but by reason solely from the benefits which the commission believed accrued to the property remaining by reason of the improvement.”

It is the contention of the appellants that the commission proceeded upon a fundamentally wrong basis in making the assessment upon their property, with the result that they have been asked to pay an undue proportion of the cost of the improvement, and a greater sum than their property -was benefited thereby. We think the evidence quoted justifies this conclusion. It is evident that the opinion of the members of the eminent domain commission differed from that of the jury as to the amount of damages the appellants suffered because of the property taken for the street, and that they sought to correct the jury’s mistake in the assessment roll by levying an undue proportion of the assessment upon their property. But the appellants had the right to have the value of their land taken assessed by a jury; and the jury’s verdict, under such circumstances, after it has been confirmed by the judgment of the court, must be given full faith and credit.

It has been declared by us to be the policy of the courts not to disturb the findings of the commission unless it has acted arbitrarily, or fraudulently, or has proceeded in making the assessment upon a fundamentally wrong basis; Spokane v. Miles, 72 Wash. 571, 131 Pac. 206, and to this rule we adhere. But we think it was proceeding upon a fundamentally wrong basis when the commission “charged back against the remainder of Gatton’s property the amount of the condemnation award made for the portion of the property taken, and then assessed the remainder for the full benefits in addition.”

The evidence in the record is not sufficiently full to enable us to determine what would be a proper assessment, and we have no alternative other than to send the cause back for further proceedings. The order will be, therefore, that the judgment confirming the assessment roll, in so far as it affects the appellants’ property, be reversed, and the cause remanded with instructions to again refer the matter of the assessment to the eminent domain commission with instructions to recast the assessment on the appellants’ property so that the amount assessed against the same shall not exceed the benefits conferred and the due proportion the property should bear when compared with the assessments upon other property in the assessment district.

Crow, C. J., Parker, and Chadwick, JJ., concur.