The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1890-08-05


proposition. towft. s.chsn~e ~ sr.t,a,, ana aef
feet Of dedication y the CITY x,ites. FeIIews ~
New Haven. q ~. Rsnt,rt. "a. Hender.nn -.
Minneapolie. % MORT vestern a22: Tnrfe a n.
CHICAGO Railroad Ca a. Ncrrh ,veefern IN. city
Of Moufxomery " Towr .end "a Am RanorrS
liz: S G. q southern Renorrer 1sk
Ana the plaintiff ID opnosiffou cites. Lewis
on Eminent Domain. eecs 221 10 236: CTR Of
Pekfn N Rreaefon q III x-r. s,ssv e r1g;n =.
Eaton. 81 aer kas nig;,lv s chscsvo ~, III
*, n, Isl Iehirh yallev Coal CO - civ Of cnf-
caeo q FpoeraI Rem liz. cifv ~ chicepo "a
Taylor lbs q. q Y61. Boroush ~ Nev Hr1ehfou
va U. r Church. g6 pa 81 al aao sx0. Pusev
N City of Allechenv. o. pa e. 500 52s. Hlanch.
ard W. Yansss fitv ne Federsl Rem laa: Nc
Werth VI CITY Of eprfncaeld = No M ITO.
Householder vi Kansas Citv. "a No. zas. dsvnes
VS.. Thomas, Ind. So "a a.: Reardon -. CITY Of
San Francisco as cal. xq2 Hpl 502 Ns 5oa 5f6
OF the four suthor.fies relied unon nv the civ.
only one, Loire Va Railroad Co. decided bv
Judge Gresham. supports the proposition. with
the profountfest req ard IN, that eminent iuvfsra
ability, vet we must agree with plaiutiffs coun-
eel thai Judge Gresham simply ignores the
whole course OF decision under the new Illinois
constitution identical In lancusee IN fbis r.oiut
with our owul and that the decision looicallv
amounts to holding that the addition Of the
words 'or damaze' amouuts 70 nothing n all
LODGES q
lows Va New Haven. il based upon a ntakinr''
under constitutioc requiring cosnpensetfou
only in case of stakine" Of private property.
Henderson va Minneapolis II under ! constftu-
fion containing no provision a broad e onrs
The strongest case il the REMAINING one the
City of Montgomery ". Townsend. twice hefore
the supreme court supra and 1 Southern Re-
porter, $50 On the point TO which ii was cited.
namely '.effect of dedica,iou.p the sunreme
court OF Alabama In a late case. City of Mont
gomery vs. Msddocks Southern Reporter No
16, D. 4s3 TO 437 has modjfie il not oyerruled IL
Time does not hermit M to review or specisllv
refer TO each of the large array az authorifies
cited by plaintiff agsinsr the proposition Of
echange OF grad 81 and ssefFect Of dedication -
We simply select three. to-wit: Lewis on Fmin.
ent Domain: the Illinois case "a iii nois 53s.
and the California case. 6S Cslifarnia 400
"Snits for damaees arising from 4 chance Of
grade whether from the natural grade az estah
linhed grade have been uniformly upheld
fPenpsylvsnial and a liberal construet;on faer,
favored sThe purport Of the decision is that
any change OF grade Is within the provisions in
question Lewis on Eminent ,maIn. Section
224 On the uronosition of alfheral cousfruc.
tom there may be added 10 the AUTHORITIES
cited by Mr. Lewis the foilouing cases decided
since the issuance Of his WORK. Pennsvlvania
Railroad Company vs.. Marchont and Pennsyl-
yania Railroad Comnanv va Ijnnincott. sunra
While Mr. Lewis cites the CITY Of MONTGOMERY
case, supra, as takfnp a diff. rent view. ..effect
of dedication s.chsuee of eradeu and .liberai
construction still that court by its decision in
MAY. 1890. is now also in line with Mr.. Lewis and
within the spirit of the present. age The force
of the decision of these two states penusyl-
yania and Alabama. on these propositions viii
Re more readily appreci sted when we RENE mber
tina, their cons titutIons on ths question under
consideration "a more limited and restricted
than the constifntion az the cts to If Washing
ton. The supreme courts Of illinois and Cali
fornia in const, ueing their constitution under
provisions similar to ours-thaf il not limited or
restrjcsed ~ In Pennsvlvsnia and Alabama--
both hold that change OF grade from the natural
grade to that established by Law is within the
constitutional provision. This provision in our
constitution Is modeIlt after that of California
ICify OF Elgiu VS. Ealon: Reardon Va CITY of
San Francisco aupra.l
As briefly a. the Importance of the subject
permitted have Wa siyen our Y eys and author.
ities without citing or reviewing all csses ex.
amined. On some Of the vital propositions there
Il : ride fiif rance In the ahsence Of any rnIe
or decision Of the supreme co,,rt of this state "a
guide or aid m. we have endeavored 70 apply
the Law within its spirt and as applicable to the
condition of the people and to
the condition Of things in \ new
and prosperous though to degree
undeveloped country. Ii the conclusion we
have reached is incorrect then the logical result
will be that in everv city Of nnr state
VET In i'm infancy. the seeker for \
new home who purchases 4 lot bor-
derinQ ON an uuonened. though dedicas d
ssreet unust either Ait until the proner author
tiles establiah and grade the sreet which ssmay
be for years. IL may be forever" or IL era de e.
tablshed. but street not opened, psrtially grade
this in front of his house and as in the case at
bar. "die a pit', for his home. or suff.r injury
and damage without recompense This IL re-
puenant TO orr sense of Justice. or RIGHT ana
wrong. and orr conceution of the needs of orr
state.
with. then. ON the one hand the old law and
the m,schief: with an emin, Mt text writer and
euthoritiea boldinr to ancient IDEAS and doc
trines: on the other hand the remedy. with AN
eouallv eminent te It writer and authorities Zone
from the p;oueer state in the constitutions re-
form or remedy. and another from the STATE
which " as the .bf aeon LIGHT, NJ the trainers ~
our constitution holding to modern ideas and
do trines. we believe that the state of Washing.
ton, for the reason before given, viii place her
The defendant having admitted that 'ssuch
damages must be ascertained, just compensa-
ton be made or paid into court for the plaintiff
before the citv OF Seattle can proceed with the
grading OF il ferson street, and that an injunc-
ton would properly issue, relieves us from the
inquiry as to whether or not the injunction
snouiu Do maue perpetual.
we 40 not pass upon the quesuon oi the ssiio-
ity OF the couuciis acuon OF the course pursued
BY II In improving OF eraoine the street. as It
was agreed upon afsument .nat the main ana
important preposiuoh vas tne construction OF
the constitutions provision, ana tnat II de-
clueu ~ No. 49,. -, 'no s., p, VAC a'y =,
mon
We are aware that grave results may ensue
from the conc us;ons We have arrived at, be-