Mottman v. City of Olympia ( 1907 )

Per Curiam.

The complaint shows, that the appellants are the owners of the south half of lots 7 and 8, in block 25, of the city of Olympia, Washington; that the said real property was and is improved by a two-story brick building thereon, of the value of about $15,000, which has for several years been used for a retail store, and is now being used for a postoffice, telephone office, and for business of various kinds; that the same is now rented and is producing a monthly income of $175, and is situated near the main retail business district of the city and derives a large element of its value from its status as business property and from its favorable location; that the property abuts on Washington street, being situated on the easterly side of said street; that it likewise abuts on Sixth street, being on the northerly side of Sixth street, both of said streets being regularly dedicated public streets, having been opened, graded, and improved with sidewalks on either side thereof, for many years; that one block south of Sixth street and running parallel therewith, is Seventh street, also open and traveled and improved for many years; that between Sixth and Seventh streets and abutting on the easterly line of Washington street are the premises occupied by the capitol building of the state of Washington; that on or about the 17th day of September, 1906, the mayor and city council of the city of Olympia passed an ordinance assuming to vacate all that portion of Washington street lying between Sixth and Seventh streets in said city of Olympia; that the mayor and city council of the city of Olympia in vacating said portion of said street were not actuated or influenced in so doing by the belief that said portion of said street was no longer necessary and convenient for public use, but that the same was so vacated in order to vest title to that portion of said street in the state of Washington, the state being the owner of the property on both sides of the portion of said street sought to be vacated. The appellants, prior to the taking effect of said ordinance of vacation, commenced their action seeking to restrain the city of Olympia from putting the same into effect, and the state of Washington from taking benefits thereunder, until such time as the damage caused to appellants’ said property had been ascertained and paid to them. Upon the commencement of said action, the court issued its temporary restraining order, but upon appearance of defendants and filing of the demurrer to the complaint, the court sustained the demurrer, and upon the refusal of the appellants to further plead, entered judgment dismissing the action. From such judgment this appeal is taken.

The assignment of error is the action of the court in sustaining the demurrer and dismissing appellants’ action. It is not contended by the appellants that under no circumstances can the city vacate its public streets; it is admitted that they can do so when the general public interest requires it, and upon payment for the injury caused to private property thereby. But it is insisted that in this case special damages, distinct from general damages suffered by the general community, are shown by the complaint, and that in such case the street can only be vacated by paying such special damages as can be shown to exist, and that the appellants’ lands being occupied by a business house, they are specially damaged by reason of the fact that customers cannot reach the premises through the medium of Washington street.

It is argued by counsel for the appellants that, if the authorities have a right to close Washington street between Sixth and Seventh streets, they would have the same right to close Washington street north of appellants’ lands, and to close any ether street upon which the appellants’ property did not directly abut, thereby practically destroying the value of appellants’ premises as a place of business. This it seems to us does not necessarily follow, but if the city has a right to vacate a street, the line must be drawn somewhere; and if appellants’ contention is true, it logically follows that the city would have no right to vacate Washington street between Seventh and Eighth streets, or between Eighth and Ninth streets, or to vacate it at all, no matter how far it extended south of appellants’ premises; for the only practical effect that it has on appellants’ egress and ingress is the deflection one block either east or west of the travel coming from.the residence portion between Washington street and Franklin street, the next street east and parallel with Washington street, and that is too slight a consideration, we think, to be controlling in a case of this kind. It will be remembered that the appellants’ property does not abut on the street vacated.

In any event, this question, it seems to us, has been squarely decided bv this court in the late case of Ponischil v. Hoquiam Sash & Door Co., 41 Wash. 303, 83 Pac. 316, where it was held that the vacation of streets was a legislative function which could be delegated by the legislature to municipal corporations, and that such legislative function had been delegated by chapter 84 of the Laws of 1901, p. 175; and it was further held that the vacation of streets wTas an exercise of the legislative or political function that could he reviewed by the courts for collusion or fraud only. There is no collusion or fraud charged in this complaint. The statement that the obj ect of the vacation was to give title to the state which owned the land on either side of the street is not an allegation of collusion or fraud. Such a statement only raises the question of public policy.

The demurrer to the complaint we think was properly sustained, and the judgment is affirmed.