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the center line of the blocks abutting on the street, provided that in any case the distance back shall be at least 90 feet, or in case of unplatted property the distance back shall be the same as that included in the assessment of platted lands immediately adjacent thereto, the word "block" means the square included by four streets as located by the system of streets prevailing generally in the plat in which an assessment district may be located, the words "platted property" mean land included by regularly placed intersecting streets, and the term "unplatted property" means lands not so included, and fractional blocks and produced by interference with the general street scheme must be treated as platted property, while land so situated as to be capable of subdivision into ordinary blocks and fractions by the extension through it of streets, so as to preserve the general street scheme, must, until subdivided, be regarded as unplatted land, and, where land is readily susceptible of subdivision into blocks of ordinary size by a mere extension of streets which have never been laid out, the land is unplatted, and the line of an assessment district must not extend back on it further than on the platted property adjacent thereto.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1073, 1074; Dec. Dig. § 450.*

For other definitions, see Words and Phrases, vol. 1, p. 809.]

Department 1. Appeal from Superior Court, Spokane County; E. H. Sullivan, Judge.

Proceeding by the City of Spokane for the confirmation of the assessment roll for the paving of a street, in which the Walter C. Sivyer & Sons Company appeared and objected. From so much of the order of confirmation as affected the property of the objector, the City appeals. Affirmed.

H. M. Stephens, Wm. E. Richardson, Ernest E. Sargeant, and Dale D. Drain, all of Spokane, for appellant. Hamblen & Gilbert, of Spokane, for respondent.

ELLIS, J. This action arose upon an appeal to the superior court from so much of an order of the city council of Spokane confirming an assessment roll for the paving of Seventh avenue from Howard street to Monroe street as affected the property of the objector, Walter C. Sivyer & Sons Company. We reproduce from appellant's brief a plat of the improvement district which, though not introduced in evidence, was, in argument, admitted to be correct.

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For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

from the south end of Wall street to the south end of Post street. Thence the district extends north along the west line of Post street to a point about halfway between Seventh avenue and Fifth avenue; thence east along what would be the north line of Sixth avenue, were it extended across objector's property to the east line of Lincoln street; thence south to a point opposite the east and west middle line of block 57, thus including in the district property of the objector lying between Post street and Lincoln street, not abutting upon, but more than half an ordinary city block distant from the improvement. None of the property between Lincoln street and Wall street north of Seventh avenue to Fifth avenue has ever been platted or subdivided into lots except by a plat prepared and long used in the county assessor's office for convenience in assessments for taxes. The trial court, on an inspection of the assessment roll, sustained the objections to the roll on the ground that the objector's property could not be included legally within the assessment district. The city appeals.

The sole question presented is: Can the respondent's property be legally included in the district, under the provisions of section 13 of the act of 1911 (Laws of 1911, p. 446), which, so far as here material, reads as follows: "Except in the cases herein other

The shaded portions represent the property included in the district. The objector's property is in that part of the district north of Seventh avenue, and comprises the two tracts numbered 12 and 13 in small figures. Seventh avenue runs east and west; Howard and Monroe streets north and south. Between these two streets, Seventh avenue is intersected only by Lincoln street, also running north and south, parallel with, and about 300 feet east of, Monroe street. About the width of an ordinary city block, or 300 feet to the east of, and parallel with, Lincoln street is a narrow street called Post street, which does not extend through to Seventh avenue, but terminates in a cul de sac about 150 feet north of Seventh avenue. About 300 feet east of Post street, and about 150 feet to the west of Howard street, is Wall street, also running north and south to within about 150 feet north of Seventh avenue, where, like Post street it terminates in a cul de sac. The first continuous east and west street north of Seventh avenue is Fifth avenue, and is over 600 feet, or a little more than two ordinary city blocks, distant from Seventh avenue. Sixth avenue, about 300 feet north of Seventh avenue, is not a continuous street. It runs from Howard street west to an intersection with Post street, where it terminates on the east side of the objector's property, and, beginning again on the west side of objector's prop-wise specifically provided for, and unless otherty, it runs from Lincoln street west to Monroe street. Sixth avenue has never been dedicated or opened as a public street across the objector's property between Post and Lincoln streets, a distance of about 300 feet. All of the territory included in the assessment district and the environing property was, in 1883, platted as Second addition to Railroad addition to Spokane Falls, now Spokane. The property lying north of Seventh avenue, and between Lincoln street on the west, Wall street and Wall street extended on the east, and Fifth avenue on the north was never divided into lots and blocks, save that the part included by a line drawn parallel to, and about 150 feet north of, Seventh avenue and by Wall street, Fifth avenue, and Lincoln street, was designated on the above-mentioned plat as block B. The strip, 150 feet wide, lying between this tract and Seventh avenue has never been platted into blocks and lots. Seventh avenue south of this tract has been platted as Hill Park. A half block at the easterly end of the as-able against the property specially benefited sessment district immediately north of Seventh avenue, between Howard street and Wall street, designated on the plat as block 95, and the whole block at the extreme west end of the district, between Monroe street and Lincoln street, designated as block 57, have been subdivided into lots. The assessment district to the north of Seventh avenue was made to include the south half of blocks 57 and 95, and a strip of about equal width

erwise provided in the ordinance ordering such improvement, such district shall include all the property between the termini of said improvement abutting upon, adjacent, vicinal or proximate to the street, avenue, lane, alley, boulevard, park drive, parkway, public place or square proposed to be improved to a distance back from the marginal lines thereof to the center line of the blocks facing or abutting thereon: Provided, that in any case such distance back shall be at least ninety (90) feet: And provided further, that in case of unplatted property, the distance back shall be the same distance as that included in the assessment of the platted lands immediately adjacent thereto. All property included within said limits of such local improvement district shall be considered and held to be the property and to be all the property specially benefited by such local improvement, and shall be the property to be assessed to pay the cost and expense there of or such part thereof as may be charge

by such improvement, which cost and expense shall be assessed upon all of said property so benefited in accordance to the special benefits conferred on such property in proportion to area and distance back from the marginal line of the street, or other public way or area improved.".

It is clear that, in enacting this law, the Legislature had in mind two classes of property, namely, that platted into ordinary city

If the respondent's property were so situated by reason of the character of the ground or of other physical obstacles, or so improved as to raise a presumption that Sixth avenue would never be extended through it, the case would be different, since in such a case the respondent's property would forever escape assessment for the improvement of cross streets, unless the land so rendered incapable of subdivision were treated as a permanent, though irregular, block, and subjected to assessment as such to half its depth. The justness of this distinction is plain. Cooper v. Nevin, 90 Ky. 85, 13 S. W. 841; Specht v. Barber Asphalt Paving Co. (Ky.) 80 S. W. 1106. Here no such case is presented. On the contrary, it is not even suggested that there is anything to prevent the extension of Sixth avenue through the tract in question.

We do not hold that the mere fact that a

block is materially larger than other blocks is alone sufficient to withdraw the land therein from the operation of the statute as applied to platted lands; but we do hold that land readily susceptible of subdivision into blocks of ordinary size by a mere extension of abutting streets, which has never been so subdivided, is unplatted land.

property, and that not so platted. We find it | the appellant, would inevitably lead to the unnecessary to enter into the extended dis- inequitable results above pointed out. cussion of decisions from other jurisdictions invited by the briefs as to the abstract definition of the word "block," since the act itself, by an unmistakable inference, leaves that question to be solved by a reference to the particular plat in which the assessment district is located. This is made clear by the proviso as to the inclusion in the district of unplatted property, "that the distance back shall be the same as that included in the assessment of platted lands immediately adjacent thereto." Obviously, the Legislature never intended to use the word "block" in the broad sense of a square included by four streets, how far soever apart and how large soever the resulting square, but did intend the square included by four streets as located by the system or scheme of streets prevailing generally in the environing city plat in which the given assessment district may be located. By "platted property" is evidently intended lands so included by the regularly placed intersecting streets, and by "unplatted property" is intended lands not so included. Fractional blocks and irregular blocks produced by interference with the general street scheme, by the topography of the ground, by joining up with other additions, or by diagonal streets, would, of course, be treated as platted property. Felt v. Ballard, 38 Wash. 300, 80 Pac. 532. But land so situated and of such topography as to be capable of subdivision into ordinary blocks and fractions of blocks by the extension through it of the abutting streets, so as to preserve the general vicinal street scheme, and make the land when so platted fairly conform to the surrounding regularly platted lands, must, until subdivided, be regarded as unplatted land, within the meaning of the act. Any other construction would leave the assessing officers without any guiding rule for even approximate uniformity, and would, in most instances, subject the owner of such property to an assessment on his property lying at a greater distance from the proposed improvement than that of other owners of adjacent platted lands in the same district, and would, in many cases, subject the owner to an assessment on property not abutting on nor any part of it within a distance from the improvement equal to onehalf the width of an ordinary city block. It would also subject such property, in most instances, to a double assessment, one for the improvement in the given district, the other for the improvement of the parallel street when extended through the property. To hold that the Legislature, by the use of the word "block" and its reference to unplatted property, intended no other distinction than that between a tract of land, however large, surrounded by streets, and land ordinarily known as acreage, as contended by

We are of the opinion that the tract extending from Seventh avenue to Fifth avenue, and between Lincoln street and Post street extended, is unplatted land within the meaning of the statute, and that the line of the assessment district should have been extended back upon it no further than upon the platted property on the one side and on the unplatted property on the other. This, as we understand the record, would exclude the respondent's property.

We find no error in the court's decision.
It is affirmed.

CROW, C. J., and GOSE, CHADWICK, and MAIN, JJ., concur.

(77 Wash. 182)

NEWELL et al. v. LOEB et al. (Supreme Court of Washington. Dec. 31, 1913.)

1. EMINENT DOMAIN (§ 216*)-PROCEEDINGS -PEREMPTORY CHALLENGES.

Even if the general statute relating to perceeding under Laws 1911, c. 11, for improving emptory challenges of jurors applies to a proa river channel, all of the defendants must join in the challenge, since the statute contemplates tions involved, and does not itself provide for but one jury trial to determine all the quesperemptory challenges.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 554; Dec. Dig. § 216.*] 2. NAVIGABLE WATERS (§ 36*)-OWNERSHIP OF BED.

Under Const. art. 17, § 1, declaring the ownership to the beds and shores of navigable waters to be in the state up to the high water

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

line, riparian owners on a navigable river have no rights in the bed of the stream or its waters as against the state.

[Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. 88 180-200; Dec. Dig. 8 36.*]

3. EMINENT DOMAIN (§ 219*)-ASSESSMENT OF COMPENSATION-DETERMINATION OF BENE

FITS.

In view of the whole act, the provision of Laws 1911, c. 11, § 14, requiring the jury to find the maximum amount of benefits in proceedings for improving a waterway merely contemplates that the maximum amount fixed shall be the basis upon which the assessments shall be made, and limits its extent.

[Ed. Note. For other cases, see Eminent Doin, Cent. Dig. §§ 556, 557; Dec. Dig. § 219.*]

4. EVIDENCE (8 474*)-OPINION EVIDENCELAND VALUES- QUALIFICATION OF WIT

NESSES.

Witnesses who testified on direct examination that they were acquainted with lands claimed to be damaged by the improvement of a river, and with their value, and with the benefits accruing by reason of the improvement, were qualified to testify as to such value; any lack of such knowledge by them, shown on cross-examination, going only to the weight of their evidence.

tended only to the bank of the river, whether the meanders were in the bed or upon the bank.

[Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 201-226, 285; Dec. Dig. § 37.*]

9. NAVIGABLE WATERS (§ 36*)-RIGHTS OF RIPARIAN OWNERS.

Riparian owners have no rights in meanders in the bed of a navigable river which they can enforce as against the state or its agency, a waterway improvement district.

Waters, Cent. Dig. §§ 180-200; Dec. Dig. [Ed. Note.-For other cases, see Navigable 36.*]

10. EMINENT DOMAIN (§ 222*)—PROCEEDINGS -CONDUCT OF JURY.

In proceedings to condemn some 10,000 ments, there was no prejudicial error in perdifferent tracts of land for waterway improvemitting the jury to take with them to the jury room the estimates of the witnesses as to the benefits to the various tracts.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 562-567; Dec. Dig. i 222.*] 11. EMINENT DOMAIN (§ 219*)-PROCEEDINGS ASSESSMENT OF BENEFITS-SEPARATE HEARING.

-

Since the Waterways Statute (Laws 1911, [Ed. Note. For other cases, see Evidence, c. 11) in effect requires that the benefits from Cent. Dig. §§ 2196-2219; Dec. Dig. § 474.*] an improvement shall be determined by the jury 5. EMINENT DOMAIN (§ 222*)-PROCEEDINGS-in one proceeding, there should not be separate INSTRUCTIONS-EFFECT OF VIEW.

The court instructed, in a proceeding to condemn land for river improvements, that one of the objects of the view had by the jury of the premises was that they might acquire such information as to the physical conditions and characteristics as would come to one through the sense of seeing, since "what the jury sees they know," and further instructed that if, in their judgment, the evidence was conflicting as to the benefits, they should resort to the knowledge gained by their view as bearing upon the weight given the conflicting estimates. Held, that the instruction was not erroneous.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 562-567; Dec. Dig. § 222.*] 6. EMINENT DOMAIN (§ 47*)-PROPERTY CONDEMNED PROPERTY ALREADY TAKEN.

Laws 1911, c. 11, § 7, subd. "a," gives waterway districts the right of eminent domain, with power to condemn private property, including that of private corporations, for the use of the organization. Subdivision "d" empowers the commissioners to acquire by purchase or condemnation "all necessary" rights of way in the improving of waterways. Held, that the commission has implied power to condemn property already devoted to a public use, if necessary, in improving a river.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 107-120; Dec. Dig. § 47.*] 7. EMINENT Domain (§ 47*)—PROPERTY TAK

EN-PROPERTY DEVOTED TO PUBLIC USE.

Property devoted to a public use cannot be condemned for another public use without express or implied legislative grant.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 107-120; Dec. Dig. § 47.*] 8. NAVIGABLE WATERS (§ 37*)—LANDS UNDER WATER-PLATS-CONVEYANCES.

hearings upon the assessment of maximum benefits resulting to each tract.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 556, 557; Dec. Dig. ! 219.*]

12. NAVIGABLE WATERS ( 82, New, vol. 13 Key-No. Series)-ASSESSMENT FOF BENEFITS. The fact that a railroad right of way, assessed for benefits from river improvements, is used for railway purposes will not prevent its assessment for benefits from the waterway improvements.

13. EMINENT DOMAIN (§ 145*)-COMPENSATION-ASSESSMENT FOR BENEFITS.

Since, under the Waterways Statute (Laws maximum amount of benefits per acre or per lot 1911, c. 11, § 14), requiring the jury to find a or tract to be derived by each owner, the jury should determine the maximum benefits accruing to the property as it was at the time, whether it might be platted in the future or not, an objection that the assessments upon unplatted property were greater than upon platted property because no deductions were made for streets was untenable.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 378-389; Dec. Dig. § 145.*] 14. APPEAL AND ERROR (§ 1004*)—FINDINGS -CONCLUSIVENESS.

The Supreme Court cannot disturb jury findings on conflicting evidence as to the amount of damages in proceedings to improve a waterway.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3944-3947; Dec. Dig. 1004.*]

Department 2. Appeal from Superior Court, King County; Kenneth MacIntosh, Judge.

Under plats describing certain additions as running "to the right bank of the Duwamish river," a navigable river, "thence up stream with the meanders of said right bank," and also describing the boundaries as extending "to the meanders of Duwamish river," the title of purchasers of land according to the plats ex- fendants appeal.

Condemnation proceedings by Fred W. Newell and others against Samuel S. Loeb and others. From judgments of condemnation and assessing damages, some of the deAffirmed.

Richard Saxe Jones, of Seattle, for appellants Loeb and another. James B. Howe and Hugh A. Tait, both of Seattle, for appellants Puget Sound Traction, Light & Power Co. and others. Hughes, McMicken, Dovell & Ramsey, of Seattle, for appellant Puget Mill Co. Ira Bronson, of Seattle, for appellants Macaulay's Estate and others. Farrell, Kane & Stratton, of Seattle, for appellant Columbia & P. S. R. Co. Turner & Hartge, Carkeek, McDonald & Kapp, Preston & Thorgrimson, and Jay C. Allen, all of Seattle, for appellants Riner and others. Shorett, McLaren & Shorett, of Seattle, for respondents.

river. The river flows in a northwesterly direction. It is proposed to put a dam across the natural channel at its southerly end near the artificial channel, and thus prevent fresh water from flowing down the natural channel by the property of Loeb and Moyses. The same is also true of other bends. The object of the action is to determine, first, the damages or compensation for the property taken, together with the estimated cost of the whole improvement, and second, to determine the maximum amount of benefits which will be derived from the improvement and which will inure to the property within the district.

The act upon which the proceeding is prosecuted provides at section 26 that "in case the damages or amount of compensation for such property, together with the estimated costs of the improvement, amount to more than the maximum amount of benefits which will be derived from said improvement, or, if said improvement is not practicable, or will not be conducive to the public health, sanitation, welfare and convenience, or will not increase the public revenue, the court shall dismiss such proceedings." The act also provides at section 14 that if the court shall be satisfied by competent proof that the improvement is practicable and conducive to the public health, etc., and that the contemplated use is really a public use, and that the lands sought to be appropriated are necessary for the establishment of the improvement, the court shall call a jury of 12 persons to be impaneled to fix the compensation and to assess the damages and benefits; that the jurors at such trial shall make in each case a separate assessment of the damages which shall result to any person, corporation, or company, or to the state, by reason of the appropriation and use of the lands for said improvement, and shall ascertain the amount of damages to be paid to said owners respectively; and that the jury shall further find the maximum amount of benefits per acre or per lot or tract to be derived by each land owner.

MOUNT, J. This is an eminent domain and special assessment proceeding prosecuted by the commissioners of waterway district No. 1 of King county, Wash., under the provisions of chapter 11, Laws of 1911, p. 11, for the purpose of acquiring the right of way for the straightening and deepening of the channel of the Duwamish river, in King county. Thirteen thousand parties are named as defendants. Against some of these defendants it is sought to take certain of their property for the right of way. Against others it is sought to determine the maximum special benefits to the property within the district. The action was tried to a jury selected under the provisions of the act above referred to. Verdicts were returned in favor of the defendants whose property was taken and damaged. A verdict was also returned finding the maximum benefits to all other property within the district. Certain of these defendants have appealed from portions of the judgment affecting them. There are a number of appellants, presenting six different appeals, all presenting certain questions in common, and some presenting questions applicable only to themselves. We shall notice the errors assigned in their order. The facts upon which assignments of error are based will be hereafter stated sufficiently to raise the questions presented. The object of the improvement sought to be made by the commissioners is to straighten the channel of the Duwamish river between the termini of the district. The Duwamish river as it runs through this district makes certain bends. The length of the river between the termini of the district in its natural condi-al objections were therein raised. See State tion is nearly ten miles. Nearly half of this distance is obviated by the proposed improvement. In straightening the river it is the purpose of the commissioners to obviate the bends in the natural channel by cutting a new channel from one bend in the river to the next nearest bend. One of these bends, known as the "Ox Bow Bend," is in the shape of a letter U. The appellants Loeb and Moyses own property upon the shore of the river as it flows in its natural state, which will be left by the improvement one-time. half mile away from the new channel of the This case is like the case of Commissioners'

After an adjudication by the court to the effect that the improvement was practicable, etc., and that the contemplated use for which the property sought to be taken was really a public use, a writ of certiorari was prosecuted to this court, and certain constitution

ex rel. Puget Mill Co. v. Superior Court, 68 Wash. 425, 123 Pac. 791.

Prior to that time a writ was prosecuted to this court from the order of the county commissioners authorizing the organization or the district. See State ex rel. Bussell v. Abraham, 64 Wash. 621, 117 Pac. 501. In these cases we reviewed most of the constitutional questions which are now sought to be relitigated upon this appeal. We shall therefore not notice those questions at this

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