The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-03-13
A LESSON IN Law.
with . Very Pointed and Important
Moral.


SEATTLE, wash, March II, 1890.
To TIE EDrroR: While the columns of .
newspaper are not the proper place for the dis
cussion OF legal proposition Is lawyers would
discuss 1t. by the citation of authorities and by
parity Of reason, yet such columns are Q proper
medium to convey information to the public Of
the accurate language and legal import of . con-
stitutional or statutory provision which affects
the public either % . whole or some integral
portion thereof. Such IL the following pro-
vision of the constitution Of our young state:
mo private property shall be taken or damaged
for public or private use without just compensa-
ton having first been made or paid
into court for the owner" etc. The public
use here spoken OF 10 that OF railroads,
our purpose. 1t viii be noticed that the term
damage" Ii here used in connection with the
term 'staken." This ID o recent change in con-
stitutional law important and radical Prior to
1872 the language of state constitutions was as
follows: "No private property shall be taken
for public use without just compensation having
been either rendered or paid" The scope and
meaning OF this word "taken," ~ used in the
old constitutions, has been settled BY the de-
cisons Of the highest judicial tribunals in every
state, g well 40 BY the decisions of the federal
courts. With the exception of Ohio and New
Hampshire the universal construction has been
that . "takinE," such as is meant In these con-
stitutional provisions. implied . change of title
or ownership, either absolute or conditional II
was conditional when the :operty. for instance,
was taken for . street, and was after
wards vacated. The public use having
ceased, the property reverted to the
AUDITING Of original owner. The courts of Ohio,
however, always held that this word 'staken"
ought 70 Be construed the same - though the
word damaged or injured" or DESTROYED
was used in connection with It The Ohio court
held consistently all along 70 this construction.
1t was acknowledged by the courts OF other
states that this Ohio doctrine rested on broader
equity and higher and puref sense Of justice
than the doctrine held by the other states In
ls72 the supreme court of New Hampshire
handed down decision on this subject remark
able for the cogency and soundness Of it, reason
ing and the clearness Of its statements So Der.
suasive was the equity and justice Of that de-
ctsion that IL has revolutionised constitutional
and statutory law on this subject Every con-
stitution adopted since that remarkable decision,
- well - every constitution which has been re-
vised since that time, has had incorporated In IL
the word damaged" In some states where the
constitutional language has not been changed.
legislative construction has been given to that
language by the use In connection with the
word "taken," of the word "damaged," ssin-
jured" or destroyed" Under the old doctrine
IL . man owned block on . ridge or elevation
and the streets were cut al around this block
property thereby was greatly damaged and
deprecated in value, and If the same should
fall or by the loss of its surface support slide
into the street. - the lawyers would say IL was
"damnum absque iniuria," that 10, that the law
gave him no right OF action for such damage or
injuries. but this 10 al changed now. The use
OF the word damaged" not only gives him the
right 70 sue for compensation. but he can stop
the cutting or grading BY injunction until he
shall have received just compensation for the
injury which be has sustained or will sustain
This was the principle upon which Judge
Lchtenberg acted when he stopped the alleged
proposed improvement on Mil street. Ii 10
true that the city can so on and dig through
ridges and hills - heretofore. but IL must pay
for the damage caused thereby to abutting
property owners. There has been . great deal
Of digging In this city, much Of which the writer
Of this communication believes 10 have been
wholly unnecessary. While il may be true that
the grade 81 business street ought to b Differ