Robinson v. City of Seattle

Parker, J.

(concurring) — I reluctantly yield my assent to the views of the majority, to the effect that these five separate pieces of property, lying separated at such a distance from each other as they are, will, when acquired by the city, all become a part of a single homogeneous local improvement, such as the spirit of the law contemplates it shall bé, to support a local assessment. It clearly never was intended, and the authorities cited by the majority so indicate, that widely separated improvements could be united and called one improvement, for the purpose of local assessment, unless they clearly formed one improvement. Each part of a local improvement must have some relation to every other part, and the proximity of the parts is a very important matter to be considered in determining such relation. This does not necessarily mean that all parts shall be physically contiguous; but they must all clearly be a part of one scheme or plan, which when completed can be said to be a single improvement. I conceive the correct rule to be, that the improvement must be such that the benefits forming the basis for the assessment flow from the whole improvement, not merely from some part of it, to each of the properties sought to be charged with the expense of its creation, and when any substantial part of the improvement does not have this effect, the spirit of the law is violated. This is in harmony with New Whatcom v. Bellingham Bay Imp. Co., 9 Wash. 639, 38 Pac. 163, though the principle is not very elaborately discussed in that case. I think the city, in this case, has gone to the very limit permitted by law, in its uniting of such widely separated parts to constitute a local improvement. With these observations I yield concurrence with the majority upon this question.

I dissent from the view of the majority which seems to as? sume that appellants are precluded from raising the question above discussed, since they did not raise it upon the hearing of necessity in the condemnation proceeding. The question of assessment was in no way involved at that hearing. The principles I have discussed above would have no bearing upon the city’s right to condemn. If appellants were parties to that proceeding, it was not for the purpose of hearing any question touching the assessment of their property. Indeed, the statute expressly provides for the process and procedure by which jurisdiction over the property owner is to be acquired to adjudicate the assessment. While the two proceedings are under the one title, they are as separate and distinct as can be, so far as acquiring jurisdiction over the parties and hearing of the questions involved is concerned. One is a pure eminent domain proceeding, while the other is a local assessment proceeding, each based upon separate pleadings, and separate process.

I concur in the result.