[No. 9166.

Department One.

December 29, 1910.]

#### The City of Spokane, *Appellant,*v. L. F. Gilbert *et al., Respondents.**1*

Municipal Corporations —Improvements —Assessments— Benefits to Public- — Review by Courts — Power—Hearing. Under Rem. & Bal. Code, § 7790, eminent domain commissioners, upon assessing property benefited by a municipal improvement, must determine what proportion, if any, of the total cost will be of benefit to the public, and assess such amount to the city, and the balance to the property; and under Id., §§ 7795, 7796, upon appeal, the superior court may modify the assessment and adjust the assessments between the city and the property owners, and hear evidence thereon.

Appeal from an order of the superior court for Spokane county, Huneke, J., entered April 11, 1910, upon findings in favor of the defendants, modifying an assessment roll made by commissioners upon property benefited by a public improvement, after a hearing before the court.

Affirmed.

*Fred B. Morrill*and *Bruce Blake,*for appellant.

*Cullen Dudley*and *Joseph Rosslow,*for respondents.

1

Reported in 112 Pac. 380.

Mount, J.

In this case the city of Spokane, in the year 1906, instituted condemnation proceedings for a strip of land for a street, the purpose being to make Division street a continuous street between certain points. Theretofore, for a distance of two blocks, this street had not been dedicated, so that the street consisted of two parts disconnected by land which was owned by private parties. The city desired to lay three large water mains along this street, and it there*362fore became necessary to condemn the land for use as a street. The land was adjudged necessary as a public use, and damages for the taking were found in the sum of $8,075, in favor of the owners of the land. This amount was paid by the city, and a judgment of appropriation entered, to the effect that the city have and hold the land taken “for use as a public street of the said city”. Subsequently a petition was filed, and an order made thereon appointing commissioners to make an assessment upon property specially benefited by the improvement, to - pay the costs thereof. These commissioners, known as the board of eminent domain commissioners, made an assessment upon the property benefited, and returned the assessment roll to the court. No benefit was assessed to the city, but the whole cost was assessed against property in the vicinity of the improvement. Thereafter obj ections to the roll were filed by a large number of property owners whose land had been assessed. These objections came on to be heard, and the court found that the public was benefited to the extent of $3,000, which should be paid by the city, and that the balance should be paid by the property assessed by the eminent domain commission, and an order was made modifying the assessment roll accordingly.

The city appeals from that order, and makes two contentions as follows: “(1) That at the hearing upon the confirmation of the assessment roll, the court is bound by the judgment of necessity (and the ordinance upon which the action is based) in the original cause, as to the question of necessity and public use; (2) that the court is limited in its inquiry to the provisions of the statute relating to the manner in which such hearings shall be conducted.” Respondent concedes the first position, which does not affect the result because there was no attempt to dispute the adjudication of public use or necessity for the street. Appellant’s position upon the- second contention is that, “if the property of the objectors was assessed proportionately In accordance to benefits from the improvement, and was not assessed more *363than it was benefited thereby, then the assessment must stand as returned by the commissioners,” and that the court is without jurisdiction to modify the assessment. The statute seems clear upon this question. It provides, at § 7790, Rem. & Bal. Code, as follows:

> “It shall be the duty of such commissioners to examine the locality where the improvement is proposed to be made and the property which will be especially benefited thereby, and to estimate what proportion, if any, of the total cost of such improvement will be of benefit to the public, and what proportion thereof will be a benefit to the property to be benefited, and apportion the same between the city and such property, so that each shall bear its relative equitable proportion, and having found said amounts, to apportion and assess the amount so found to be a benefit to the property upon the several lots, blocks, tracts and parcels of land, or other property in the proportion in which they will be severally benefited by such improvement.”

This section makes it the duty of the board of eminent domain commissioners to estimate what proportion of the cost of the improvement will be of benefit to the public and what proportion thereof will be of benefit to the property, and apportion the cost between the city and such property. Section 7795, same volume, provides:

> “The hearing shall be conducted as in other cases at law, tried by the court without a jury, and if it shall appear that the property of the objector is assessed more or less than it will be benefited, or more or less than its proportionate share of the costs of the improvement, the court shall so find, and also find the amount in which said property ought to be assessed, and the judgment shall be entered accordingly.”

Section 7796 provides:

> “The court before which any such proceedings may be pending shall have authority at any time before final judgment to modify, alter, change, annul or confirm any assessment returned as aforesaid, or cause any such assessment to be recast by the same commissioners, whenever it shall be necessary for the obtainment of justice, or may appoint other commissioners in the place of all or any of the commissioners first *364appointed for the purpose of making such assessment or modifying, altering, changing or recasting the same, and may take all such proceedings and make all such orders as may be necessary to make a true and just assessment of the cost of such improvement according to the principles of this act, and may from time to time, as may be necessary, continue the1 application for that purpose as to the whole or any part of the premises.”

These statutes clearly give the court power to adjust the assessment between the city and the property owner, so that each one may pay the proportionate share of the cost of the improvement. The court is not bound by the assessment made by the commissioners. In *In re Pike Street,*42 Wash. 551, 85 Pac. 45, we said:

> “The statute gives the court power to modify, change, alter or annul the assessment, and we think it may lawfully find that an improvement is of sufficient general benefit to make an appropriation of the cost a general charge against the municipality.”

In order to do this, the court must necessarily hear and consider evidence bearing upon such question.

We find no error in the record, and the judgment is therefore affirmed.

Rudkin, C. J., Parker, Gose, and Pullerton, JJ., concur.