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(47 Wash. 11)

STATE ex rel. PAGETT et al. v. SUPERIOR COURT FOR PIERCE COUNTY et al. (Supreme Court of Washington. Aug. 5, 1907.) 1. HIGHWAYS-LAYING OUT — PROCEEDINGS—

COLLATERAL ATTACK.

Ballinger's Ann. Codes & St. § 3772, in relation to the establishment of county roads, provides that an application for the establishment of a road shall be by petition, signed by at least 10 householders of the county. Section 3775, Ballinger's Supp., provides that if the board of county commissioners shall be satisfied, among other things, that at least 10 of the petitioners are householders, viewers shall be appointed, etc. Held that, after the commissioners have passed favorably on the petition, their determination cannot be collaterally attacked on the ground that the petition was not signed by a sufficient number of householders.

[Ed. Note. For cases in point, see Cent. Dig. vol. 25, Highways, § 168.]

2. SAME-NOTICE TO PROPERTY OWNERS.

Ballinger's Ann. Codes & St. §§ 3774-3779, in relation to the laying out of county roads, were so amended by Sess. Laws 1901, c. 96, p. 200, as to provide that the county surveyor should perform all the duties previously requir ed of viewers; but the amendatory statute failed to amend sections 3871 and 3872, which provide for the giving of notice to landowners and proceedings by the county commissioners on the report of the viewers. Held, that a service of notice on property owners of a hearing on the petition and report of the surveyor is sufficient; such construction being necessary to preserve the effectiveness of the statute.

Certiorari to Superior Court, Pierce County. Proceedings by the state, on the relation of C. C. Pagett and others, for a writ of review to correct the judgment and order of the superior court for Pierce county in determining that certain property was subject to use for a county road. On final hearing, after certification of the record and proceedings pursuant to the writ. and stay of proceedings vacated.

See 89 Pac. 178.

Affirmed,

Titlow & Huffer, for relators. H. G. Rowland and F. Campbell, for respondents.

CROW, J. On March 31, 1905, a petition and bond were filed with the commissioners of Pierce county for laying out and establishing a county road, to be known as the "Julius Gulch Road." Such proceedings were had that Pierce county afterwards filed in the superior court a petition to condemn for said road certain land belonging to C. C. Pagett, Mabel Pagett, and Bridget Duffy, the relators herein; and the superior court, after taking evidence, adjudged that the purpose for which the land was sought to be condemned was a public use. Thereupon the relators applied to this court for a writ of review. Upon notice the county appeared interposed objections, and resisted the application, contending that the relators had an adequate remedy by appeal. In a written opinion (89 Pac. 179) we granted the writ, returnable May 1, 1907. A transcript of the record and proceedings having been fully 91 P.-16

certified to this court, the same is now before us on final hearing.

It appears that the original petition for the establishment of the road upon its face purported to be signed by 10 householders; that it complied in all respects with the requirements of section 3773, Ballinger's Ann. Codes & St. (section 7822, Pierce's Code); that it was accompanied by a bond executed in due and legal form; that it was referred to the county surveyor, who filed his report; that the relators failed to file any written waiver of damages or claim for damages; that personal service of notice of hearing was made on the relators; that the commissioners ordered the road to be established; that a tender of damages was made to each of the relators, which they failed to accept; and that condemnation proceedings were ordered. The relators, in their assignmer's of error, have directed our attention to certain alleged irregularities which they insist render all proceedings before the county commissioners null and void. Although these alleged irregularities are regarded by us as immaterial, some of them will be hereinafter discussed. The relators have, in fact, presented many assignments of error which it will be unnec essary for us to consider by reason of our views on the jurisdictional questions raised. The substance of their contention seems to be that in this action we are authorized to fully review all proceedings had before the county commissioners preliminary to their orders establishing the road and directing condemnation. The primary purpose of the writ issued herein is to enable us to review the order of the superior court adjudging that the purpose for which the relators' land is sought to be taken is a public use, and not to review the acts of the county commissioners. While it is true that statutes delegating the right of eminent domain are to be strictly construed as in derogation of private rights, we do not think that in a proceeding of this character, instituted for the sole purpose of reviewing an order adjudging a public use, we can be called upon to critically examine or review all the preliminary proceedings had before the board of county commissioners. The commissioners had, under the statute, jurisdiction of the subject-matter of establishing the road. As shown by the record, and by the filing of a proper petition and bond approved by them, and service of process thereon, they also acquired jurisdiction of the persons and property of the relators. As it further appears that damages have been tendered to the relators, which they have declined to accept, that the commissioners have established the road, and that they have directed condemnation, no further inquiry can be here made into the preliminary road proceedings. All these facts having been pleaded and shown, noth ing more can be required.

The relators nevertheless contend that the

trial court erred in refusing them permission | 11 and 12 of the act of 1895, and such sec to show that some of the signers of the road petition were not householders, as required by section 3772, Ballinger's Ann. Codes & St. (section 7821, Pierce's Code), and insist that they were entitled to attack the sufficiency of the petition in that regard, and the jurisdiction of the county commissioners. In support of this position they cite Mulli. gan v. Smith, 59 Cal. 206, afterwards cited and followed in Zeigler v. Hopkins, 117 U. S. 683, 6 Sup. Ct. 919, 29 L. Ed. 1019. From the opinion in Mulligan v. Smith it affirmatively appears that the statute did not authorize the mayor to enter into any investigation of the frontage represented by the petition, or to adjudicate its sufficiency. Our statute (section 3775, Ballinger's Supp.; section 7824, Pierce's Code) confers upon boards. of county commissioners such judicial authority. They are authorized to consider and pass upon the sufficiency of the petition and bond. The records introduced in evidence show that the commissioners affirmatively determined and found that the petition was signed by at least 10 householders of the county residing in the vicinity of the road, and that it was accompanied by a bond approved by the board. Such finding cannot be attacked in this collateral proceeding. It shows jurisdiction in the commissioners. In re Grove Street, 61 Cal. 438; Humboldt County v. Dinsmore, 75 Cal. 604, 17 Pac. 710; Hill v. Board of Supervisors, 95 Cal. 239, 30 Pac. 385; People v. Reclamation District. 121 Cal. 522, 50 Pac. 1068, 53 Pac. 1085; Lingo v. Burford, 112 Mo. 149, 20 S. W. 459; Belk v. Hamilton, 130 Mo. 292, 32 S. W. 656; Scotten v. City of Detroit, 106 Mich. 564, 64 N. W. 579: Porter v. Stout, 73 Ind. 3; Ryder v. Horsting, 130 Ind. 104, 29 N. E. 567, 16 L. R. A. 186; C. & A. Ry. Co. v. Sutton. 130 Ind. 405, 30 N. E. 291; Longfellow v. Quimby, 29 Me. 196, 48 Am. Dec. 525; McClelland v. Miller, 28 Ohio St. 488. The above authorities also establish the doctrine that, when jurisdiction has once been acquir ed under a proper petition and notice, the subsequent proceedings, being presumed regular, cannot be collaterally attacked. The trial court committed no error in rejecting the evidence offered for the purpose of showing that the petitioners were not householders.

Sections 3774 to 3779, inclusive, Ballinger's Ann. Codes & St., being sections 4 to 9, inclusive, of chapter 50, pp. 83-85, Sess. Laws 1895, were amended by chapter 96, p. 200, Sess. Laws 1901. A comparison of the amended with the original sections will show that the principal change consisted in providing that the county surveyor should perform all the duties theretofore required of viewers. It is apparent from the amended act of 1901 that the Legislature intended to dispense with the appointment of viewers. It. however, failed to amend sections 3871 and 3872, Ballinger's Ann. Codes & St., being sections

tions still provide for the giving of notice and for further proceedings by the county commissioners, on the report of the viewers. But the previous section (Ballinger's Ann. Codes & St. § 3775), providing for the appointment of viewers, having been repealed, no such appointment is now authorized. The county surveyor discharged all duties formerly required of the viewers, and made his report in due and legal form. As the relators had not waived damages, the commissioners caused notice to be personally served upon them that at a time stated the board would take up for hearing the surveyor's report on the petition, together with the petition. As section 3781 requires such notice to be given upon the report of the viewers, the relators contend the notice given was insufficient and conferred no jurisdiction over them or their property. In their brief they insist that it is impossible for the county under the present statutes to condemn any right of way for a county road, that the exact procedure provided by the statutes must be followed, and that no valid notice of hearing on the petition and the surveyor's report can now be given to owners who have not waived damages. We understand this to be the vital point upon which the relators rely for a reversal herein. In substance they contend (1) that no viewers are authorized; (2) that notice must only be given on the report of viewers; (3) that, there being no such report for want of viewers, therefore (4) no valid notice conferring jurisdiction can be served. The amendments of 1901 indicate a legislative intent that the county surveyor shall perform all duties formerly delegated to viewers. The mere oversight or inadvertence of the Legislature in failing to amend seetions 3781 and 3782 did not result in a complete annihilation of the road law, so that no condemnation could be had of lands belonging to owners who refused to waive damages. It was not the intention of the Legislature by the act of 1901 to place it within the power of owners to prevent the establishment of a road by their mere refusal to waive damages. It is our duty to so construe the amended law as to preserve it and carry out the legislative intent. We therefore hold that the county commissioners acted with lawful authority when they served notices upon the relators of a hearing upon the petition and the report of the surveyor. As the law now stands, the word "viewers." wherever it occurs, either in the statute or the road proceedings, must be interpreted as referring to the county surveyor. Such a construction is necessary to preserve the vitality and effectiveness of the entire statute and carry out the legislative intent. We hold the notice and its service on the relators to have been valid, to have conferred jurisdiction, and to have been properly ad mitted in evidence.

This holding effectually disposes of all

OF PURCHASER.

TITLE

other assignments of error presented by the | 4. EXECUTION - SALE ON EXECUTION
relators. We will, however, allude to their
contention that the preliminary proceedings
of the commissioners are void, for the reason
that it does not affirmatively appear that
they by order declared the amount of dam-
ages awarded to relators, or that they order-
ed the amount of such damages to be set
apart in the treasury out of the proper fund
to be paid to the relators, or that they deter-
mined the amount of damages which in their
judgment should be tendered to the relators.
Damages were actually tendered by the com-
missioners, and were refused by the relators.
This being true, we cannot in this collateral
proceeding review the action of the county
commissioners in the matter of awarding or
ascertaining damages. Such review, if had
at all, must be obtained by some direct pro-
cedure. All jurisdictional matters were plead
ed and shown in the superior court. The on-
ly question it was called upon to decide was
whether the proposed use of the relators'
land was public. As it appears that the land
is to be appropriated for a county road, it
necessarily follows that the only judgment
which the superior court could have rendered
was the one entered. The appropriation of
private property for a highway is necessarily
for a public use. State ex rel. Schroeder V.
Superior Court. 29 Wash. 1, 69 Pac. 366;
State ex rel. Thomas v. Superior Court, 85
Pac. 256, 42 Wash. 521.

A creditor, acquiring title to his debtor's real property by attachment and sale on execution, acquires no greater interest therein than that of his debtor.

[Ed. Note. For cases in point, see Cent. Dig. vol. 21, Execution, § 747.]

Appeal from Superior Court, King County; Geo. E. Morris, Judge.

Action by Martin White against Hugh McSorley and wife. From a judgment for plaintiff, defendants appeal. Affirmed.

Willett & Willett, for appellants. Aust & Terhune, for respondent.

We fail to find that the honorable trial judge has committed any prejudicial error. The judgment is affirmed, and the stay of proceedings heretofore granted by this court will be vacated upon the filing of this opinion.

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MOUNT, J. This action was brought by the respondent to quiet title to lots 15 and 17 of block 72, Gilman Park addition to Seattle, now Ballard. The answer of McSorley and wife alleged title in themselves. At the trial of the case the court found that the title was in the plaintiff, and made findings to that effect, and entered a decree quieting title in the plaintiff. The defendants have appealed.

The undisputed facts show that on May 31, 1901, the title to lot 15 was in S. D. Crockett and wife. On that day Crockett and wife executed a deed of the lot to Maggie Donald. This deed was placed in escrow, to be delivered upon the payment of $300 in monthly payments. Mrs. Donald made one or two payments, and then arranged with one Jacob Reichold to complete the payments for her. This was done, and after Mr. Reichold had made the payments the escrow deed was delivered to him. After the payments were all made there was due Mr. Reichold from Maggie Donald the sum of $300, which she was unable to pay. She and her husband thereupon, on July 8, 1902, deeded the lot to Mr. Reichold, with the verbal understanding that, if the amount due him was not paid within one year, he was to sell the lot and, after deducting the amount due him, with interest, he was to deliver the balance, if any, to Mrs. Donald. Nothing thereafter was paid to Reichold, and on August 7, 1903, Reichold sold and conveyed the lot by warranty deed to respondent for the sum of $358. In the meantime, on March 27, 1903, the appellants began an action against Thomas Donald and wife, and attached the lot, which was afterwards sold on execution and bid in by the appellants. As to lot 17, the facts are that prior to July 21, 1902, the title stood in the heirs and devisees of Albert Nelson, deceased. On that day those heirs and devisees

[Ed. Note.--For cases in point, see Cent. Dig. conveyed the lot to M. A. Emery, who on the vol. 41, Quieting Title, § 91.]

3. VENDOR AND PURCHASER-RIGHTS of PurCHASER AS TO THIRD PERSONS.

One who purchases a lot for value without notice of an agreement between his vendor and another, whereby the lot was only conveyed to his vendor to secure payment of a debt, acquires absolute title in fee.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, §§ 583, 584, 591.]

same day agreed to sell the lot to Maggie Donald, and some money was paid on the sale; but the money was within a short time afterwards returned, and the sale was not completed. Thereafter, in March, 1905, M. A. Emery and her husband sold and conveyed the lot to the respondent. In the meantime, on March 27, 1903, this lot was attached and sold in the same action and manner

as lot 15, as stated above. There are other facts in the case, but they tend only to show that the Donalds had parted with all claim to the lots prior to the levy of the attachment named. With the view we have taken of the case, such facts need not be stated, as they tend only to confuse the principal issue. The appellants claim through the attachment and execution sale above stated.

It will be readily seen that the Donalds had no record title to the lots at the time of the attachments. It is argued by appellants, as against the judgment to quiet title in the respondent, that the deed of lot 15 from the Donalds to Reichold and the deed of lot 17 to M. A. Emery were security for debts and therefore mortgages, and that in this state a mortgage is a mere lien and does not pass title. It is no doubt true that a mortgage in form is a mere lien in this state and does not pass title. But the statute provides, at section 5500, Ballinger's Ann. Codes & St., that any person having a valid subsisting interest in real property and a right to the possession thereof may recover the same by action and may have judgment in such action quieting plaintiff's title. Under this section a person holding the legal title to the real estate, with the right of possession, may maintain an action to quiet his title. In this case there is no dispute that the legal record title is in the plaintiff, and there is apparently no dispute that plaintiff is entitled to possession, the lots being vacant, provided his record title is valid. The appellants claimed in the answer that the title was conveyed to the respondent without consideration and in fraud of the appellants. There was no evidence to support the allegations of fraud. Appellants now claim under the evidence that the deed of lot 15 from the Donalds to Reichold and the deed to Emery were mere mortgages to secure a debt. In either case, where it appears or was admitted that the plaintiff was the holder of the record legal title and entitled to the possession, it then devolved upon the defendants to avoid that title in some way, and plaintiff was entitled to a judgment quieting his title, unless the defendants overcome that title by showing the same was fraudulent or in some other way avoiding it. The evidence undoubtedly shows that as to lot 15 the conveyance from the Donalds to Reichold, while absolute in form, was as to those two parties a mortgage with the power of sale in the grantee. The plaintiff purchased for value and in good faith, without notice of the agreement existing between the Donalds and Reichold. He therefore took an absolute title in fee. He knew of the attachment and sale thereon, and that the appellants were claiming some interest in the lots; but that interest was the interest of the Donalds alone, which interest, after sale by Reichold, was a mere right to whatever difference there was between the amount of the debt and the selling price. The evidence shows that the respondent was not actually

informed of that interest, but was informed that the claim of the appellants amounted to nothing. At any rate, the appellants, when they sold the interest of the Donalds at execution sale and became the purchasers, acquired no greater interest in the lots than the Donalds had at that time (Lee v. Wrixon, 37 Wash. 47, 79 Pac. 489, and authorities there cited), which was merely the right to redeem, or, in case of sale by Reichold, the right to an accounting for the balance due after the debt was paid. The appellants could, therefore, no more maintain an action to quiet title in themselves than the Donalds could have done, had the attachment and execution sale not taken place. It is not and cannot reasonably be claimed that the Donalds could maintain such an action against the respondent. As to lot 17 it does not appear that the Donalds had any claim whatever to that lot at the time of the attachment sale, and therefore appellants acquired no interest therein.

Appellants claim, further, that they have paid some taxes and street assessments against the property, and that they should be reimbursed therefor. They made no claim for such items in their answer, and no issue was made thereon at the trial. There is some rather indefinite evidence to the effect that appellants paid certain amounts for street assessments. There is not enough evidence of such facts, however, to warrant a reversal of the case on that account. No doubt the respondent should reimburse the appellants for assessments paid; but, inasmuch as that issue was not raised by the pleadings or at the trial, and as the same may still be enforced as a lien against the lots, we shall make no order thereon.

The judgment appealed from is therefore affirmed.

HADLEY, C. J., and FULLERTON, CROW, and ROOT, JJ., concur.

(46 Wash. 674)

NORTHERN PAC. RY. CO. v. CITY OF

SEATTLE.

(Supreme Court of Washington. Aug. 1, 1907.) MUNICIPAL CORPORATIONS-STREET IMPROVEMENTS-ASSESSMENTS-RAILROAD RIGHT OF

WAY.

Under Ballinger's Ann. Codes & St. § 739, subds. 10, 13, and the charter of the city of Seattle, giving the city council power to determine what property will be benefited by a street improvement, and to assess it therefor, its determination by assessment of a railroad right of way abutting on the street is conclusive that it is benefited.

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Objections by the Northern Pacific Railway Company to an assessment of its property for street improvements by the city of Seattle were overruled by the city council and on appeal by the superior court, and from

the order of the court affirming the assessment the company appeals. Affirmed.

Carroll B. Graves, for appellant. Scott Calhoun and O. B. Thorgrimson, for respondent.

CROW, J. The city of Seattle, by Ordinance 12,185, created local district 1,059 for the improvement of Wallingford avenue and other streets, by constructing sidewalks, and directed that a special assessment be levied against the property therein to pay the cost thereof. The district consisted of all real estate to the depth of 120 feet abutting on each side of the streets improved. An assessment roll was prepared, filed, and notice given, in due form. Written objections made by the Northern Pacific Railway Company were overruled by the city council, and upon appeal were again overruled by the superior court of King county. From the order of the superior court confirming the assessment, the Northern Pacific Railway Company has appealed.

The assessment was made upon all abutting property according to frontage. The trial court found that the appellant has an abutting right of way, varying from 60 to 100 feet in width, which has been assessed; that it was acquired as a right of way, and is not used for any other purpose; that, with the exception of a single track located thereon, it is vacant and unimproved; that the assessment levied is in proportion to the assessments on other lands in the district; that the appellant's land is within the limits of the city of Seattle, close to the north shore of Lake Union, in a vicinity now being used for the operation of mills and manufacturing plants; that said land is suitable for the purpose of building side tracks and spurs to reach the different mills and manufacturing plants which are now, or may hereafter be, built in such locality; that only a small portion of such right of way is used and occupied by the railroad track; and that the land will be benefited and its market value increased by the improvement. These findings are sustained by the record. The ordinance creating the district, and directing an assessment upon all abutting property ac cording to frontage, was a legislative determination by the city council that all abutting property within such district will be bene

With perhaps occasional exceptions involving fraudulent or arbitrary action, such legislative determination does not become the subject of review by the courts, but is final. Smith v. Mayor, etc., of Worcester, 182 Mass. 232, 65 N. E. 40, 59 L. Ed. 728; Duncan v. Ramish, 142 Cal. 686, 76 Pac. 661; Chicago, etc., R. R. Co. v. City of Joliet, 153 Ill. 649, 39 N. E. 1077; C. & N. W. Ry. Co. v. Elmhurst, 165 Ill. 148, 46 N. E. 437; People ex rel. Scott v. Pitt, 169 N. Y. 521, 62 N. E. 662, 58 L. R. A. 372; I. C. R. R. Co. v. People, 170 III. 224, 48 N. E. 215.

In Prior v. Construction Company, 170 Mo.

439, 451, 71 S. W. 205, 208, the court said: The question of whether the plaintiff's lots would or would not be benefited by the construction of this sewer is a legislative, and not a judicial, question, and the municipal Legislature adjudged that they would be benefited and fixed the ratio of such benefit, when it established the joint sewer district, and as there is no question of fraud or oppression of the municipal assembly in so passing such ordinance (even if such allegation would convert the question into a judicial one, as to which it is not necessary now to decide), such judgment of the assembly is conclusive." In Lightner v. City of Peoria, 150 Ill. 81, 87, 37 N. E. 69, 71, it is said: "As already seen, the imposition of the tax is, of itself, a determination by the legislative authority of the city that the benefits to the contiguous property will be as great as the burden imposed. There is necessarily vested in the city council a large discretion in determining the extent of the improvement, what shall be included within it, and the nature and character of it. By the statute they are expressly authorized to determine that the improvement shall be made and paid for by special taxation of contiguous property, and, unless there has been a clear abuse of the power and discretion conferred upon the city council, courts are powerless to interfere." Judge Cooley, in his work on Taxation (3d Ed.) vol. 2, at page 1208, says: "It has been repeatedly decided that the legislative act of assigning districts for special taxation on the basis of benefits cannot be attacked on the ground of error in judgment regarding the special benefits, and defeated by satisfying a court that no special and peculiar benefits are received. If the Legislature has fixed the district, and laid the tax for the reason that, in the opinion of the legislative body, such district is peculiarly benefited, its action must in general be deemed conclusive." In his work on Constitutional Limitations, at page 729 et seq., Judge Cooley says: "On the other hand, and on the like reasoning, it has been held equally competent to make the street a taxing district, and assess the expense of the improvement upon the lots in proportion to the frontage. Here also is apportionment by a rule which approximates to what is just, but which, like any other rule that can be applied, is only an approximation to absolute equality. But if, in the opinion of the Legislature, it is the proper rule to apply to any particular case, the courts must enforce it."

The appellant contends that the land held and used by it as a right of way cannot be assessed for local street improvements; that a special assessment can only be levied when a special benefit produced by the improvement inures to the property assessed; that, unless it can be affirmatively shown that some special benefit does result, no assess

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