The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1892-10-18
STREET GRADE LAW.
The Corporation Counsel on a
Supreme Court Decision.
GRADING MUST BE ON CONTOUR
No Street Improvement Can be Under
taken Unless Auditing Owners
Waive Claim for Damages.

The most important matter before the
board of public works yesterday was
communication from Corporation Counsel
Donworth. calling attention to recent de-
cision of the supreme court which seri-
ously affects the future grading of streets.
The effect of it is that all streets must
hereafter be graded according to the con-
tour OF the land, and it will not be safe TO
undertake any improvement requiring
either cut or fill until the abut,ing prop
erty owners have formally waived all
claims for damages. The document, which
is of great public interest. is as follows:
The recent decision OF the supreme court OF
the state in the case OF jeanne MeHugh Brown
VS.. the city OF Seattle, decided October II, ls9-
has such an important and far-reaehing enees
in rel alton to tie grading OF streets by the city
that feel It my duty TO call your attention 10
the principles of law announced by the court
The question involved in that was tho
right OF the city to grade street in the ordinary
manner that streets have been graded IN sealtie
from time immemorial, viz: by establishing
the grade elevations at various cross streets anu
by graduating the street favel to straight lines
extending from one cross street to another.
This the supreme court has decided the city mas
no right to do, if such q grade leaves aoutsing
property above or below the street level 10 sucn
an extent that there is a probability that such
property will be reduced in value by the making
OF the grade.
Regarding the rights conferred upon the city
by dedication of a street by the land owner, the
court says:
"a dedication should always be taken as
consent that the natural surface OF the street at
its center line might be the grade 10 Wnlcn the
roadway should be lereled from either sue.
since reasonable roadway could not be maos
r. fn.Nv Il
course the street ought 10 follow tne general
contour Of the laud, without sayish 40 hcrence
TO every inequality the disregard OF which can
injure no one or make property less vaiuaois.
II no street practicable fox the public use cat
be made without making cuts or ILLS which Will
damage abutting land SO as to reduce its value
below that " hich IL possessed before the street
was begun, none should be undertaken at all
unless abutting owners waive damages. or until
public necessity shall justify the paying the
cost of lower or higher grade
The an nouncement that the law ia Is stated
III the foregoing quotation, together win the
further announcement that an abuttinS owner
who can establish BY witnesses probability
that the proposed grade will injure his prop
| erty can stop proceedings by injunction. has
opened to the city Pandora's box of dithcul-
| ties which we must face at this time 1t Is, OF
course, we'll known TO you that by grading IN
| the ordinary way property Is usually lett above
| some cases the difference in height amounts to
| some fifteen or moro feet. 1t is no doubt fire.
| Quently the case that the abutting property Is
| benefited by the improvement. even though 1t
| be left either above or below the grade and to
| the extent stated, yet property owners VINO nave
| in the past in large numbers refused 10 pay Ie-
climate graie taxes will undoubtedly, IN some
cases. take advantage of this decision to prevent
| street grading, and will allege that their prop
| ery is damaged Tor the purpose OF obtaining an
! Injunction. Such claims will undoubtedly be
/ made without any foundation In other cases
| parties will imagine in good faith that they are
| being injured when III fact they are being ben
| Gifted.
| In view of these considerations it Is necessary
| to make provision to avoid trouble hereafter.
The responsibility Tor the past - not on u.s. Out
/ we must in future pay due regard TO the law IS
| announced by the supreme court, however I'M
| practicable, unjust or unreasonable 1t lIay De
| in our private Judgment ! understand Enas
| you are about TO let three contracts for street.
| improvements today. In these matters would
advise that you consult the city engineer, anu
| see ii any OF the proposed grades will depart to
| any considerable extent from the contour at the
center of the street The supreme court allows
! Us 10 make slight departures "without slavish
| adherence to every inequality, bat this per-
| mission is Quaifed by the further rule that the
| inequality which can be disregarded must be
| one 1.-THE disregard OF which can injure no one
| or make property less valuable" II 1t Is found
that any OF These proposed grades contrsvenss
| the rule OF law laid down by the supreme
court, it will be your duty TO proceed no further
| until release of damages has been obtained
| from every owner of property abutting on the
| street who can by any possibility have any
claim for damages under the ruling OF the
! court | understand from the city engineer
| that some of the streets now To be let involve
| cuts ard fills, Others do not Those that mike
,H.sa, Al ana ~, hA al a ION cav. ha
| proceeded ". th without trouble. shall call
| the attention OF the city council to the state of
| the law, in order that petitions now pending
/ may lie disposed OF in accordance with these
| suggestions.
/ As you will observe from what has been before
! stated. this decision oompeis us TO revolutionize
! the methods of street grading in Seattle Grades
! are no longer TO be In straigh. lines from one
cross street TO another, except in those rare
eases where nature has SO fashioned the earth
| In oil other cases the street will follow the in
! clinations of the ground throughout, the greater
the hollow rise the greater being the necessity
for a6hering TO it have given copy of the
opinion of the court 10 the city engineer for his
| consideration. ] shall prepare forms for release
| Of damages. which can b. used 10 procure the
| assent OF property owners TO such gra;es as are
! proposed, and atvse that IN al eases where
! suca rsleases arc not signed by property owners
/ who can claim TO be il iuriously affected under
! the decision Of the supreme court the city do
| not proceed with the grade. since IL is not law
! ful so t. do.
| The court suggest thatin cases where cuts and
| fills are necessary the public pay the dam
ages. bu. II is further said that these damages
must be ascertaiued and paid II advance. The
court has in another case decided that cities OF
/ the first class have no power 10 condemn land
! ar 70 damage It without the consent OF the
owner. under the present state OF the law. by
any proceeding whatever.
There j., therefore, no method by which the
| pubic can ascertain and pay damages for cuts
hnt ellis uatIl the Legislature shall confer il hv
/ further action. The most that the legislature
can 30 under tie decision OF tie court Is 20 give
the city sho ght to have the damages caused
ty cuts and Ais 70 lee 81 ceE,ajnei by a fury and
paid IN advance OF the work. Even the leg s.
lature cannot do away with the right OF the
abuttiug owner 70 maintain an injunction
urtu rs has been paid for his alleged damages.
The bids were then opened for the grad
| ing OF Bush street. The city engineer was
asked If the grade TO be established on
| Bush street conformed 10 the requirement.
OF the late decision. and be replied that it
! did The following bids were submitted
! Robert Myers $473 so; NJ. H. McMullen,
sioS.,1; I. A. Bailey. s3Js 10; J. ". Fits
So. -; l. y. Rardin. 1856. 81, and FL Nc
Mullen. s35i4o. The latter having offered
the lowest b.d w2s awarded the contract