The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1893-02-20
OFFSET TO DAMAGES.
Benefits May Be Considered in
Assessing Property.
DECISION IN THE LEWIS CASE.
The Supreme Court Lays Down the Law
- TO ApprOpriating Land for
Public improvements.


The supreme court on Saturday handed
down its decision in a case which will be
a. far-reaching as the Doran decision.
Bessie }. Lewis sued the city Of Seattle for
damages caused by the city taking a mar
row strip Of land from her property on
Weller street so as to make the street uni
form In width. Corporation Counsel Dom
worth, on behalf Of the city, took the
ground that when determining the
amount OF damage to piece of property
caused by general improvement. the ben
ehts derived by that property should be
made an Offset. The case was argued last
November. and the court renders . de-
cision which is so lengthy that it would
occupy four entire columns of the Posi-
iNrELLIGENcER There are many points in
1t which will be of special interest to law
yers. but the public at large is concerned
in some of the conclusions arrived at,
which are:
In considering the right to offset benefits in
VOWED In the second defense. it is necessary to
construe the constitutional provision relating
thereto. II the clause irrespective of any benef
from any improvement proposed by such cor
poration applies to municipal corporations, it
must be given effect in this instance the c0nsti-
tuition being then in force.
The constitutions of . number Of the states
contain substantially the first clause in ours,
that mo private property shall be taken or
damaged for public or private use without just
compensation having been first made or paid
into court for the owner" but in mona OF them
where this clause has received q judicial inter-
probation does the constitution contain tho
following clause found In ours. viz:
And ~;vhH ~ ~ haA
to the use of any corporation other
than municipal until full compensa-
ton therefor be first made in money or ascer-
tanned and paid into court for tho owner, ire
spective of any benefit from any improvement
proposed by such corporation" with the excep-
ton OF the constitution of the state OF Califor-
mia. and here the language II identical with our
own.
In Pacific Coast Railway VI. Porter, "A CAL,
26l, the provisions relating to compensation ir-
respective of benefits was recognized as not
applying to municipal corporations. 1t is urged
by respondent that this case should not be re-
garded ~ authority in this particular. because
the point was not involved therein. However
this may be, it was sustained by the cases there
cited.
1t is a rule that where law 10 taken from an
other state, which has there received a judicial
Interpretation. such Interpretation should be of
force and recognized In the state adopting the
law. While 1t may he that this rule has not
been observed as much in later years - it was
formerly. most likely owing 70 the fact that laws
existing In various states OF substantially the
same character have received conflicting con-
structfOns, and for that reason IL could not be
said which one the state adopting the law in
tended to recognize. yet here ID . strong case for
the application of the rule, and furnishes All in
stance where, If ever, II should be observed, for
there was no other similar provision At the time
iV, thA Att p,f~ Wnft toto
Ing that of California
1t Is apparent that the exception relating to
municipal corporations contained in the second
clause must either apply to the rule Of damages,
or II must have the effect of exempting such
corporations from paying in advance Appel
liant contends that it should apply to the rule
relating to the ascertainment of damages, aud
argues that the decision rendered in Brown W.
Seattle In effect decides that the city may de-
duct benefits and that it should b permitted to
do 80 under the weight of the authorities, there
being no legislation ON the subject. In that
case the court held that damages which would
result to sljoning property by the grading OF
street must be paid for in advance. There was
no attempt to discriminate between the appro-
pration of . right-of-way or = taking or damag-
Ing for any other municipal purpose in relation
to the right of prepayment. nor eau one be
drawn from the authorities, for the appropria-
ton OF q right-of-way for . street has uniformly
been recognized as a taking, by the courts of
the country. regardless of where the fee re-
NAMED.
The RESPONDENT insists with much force that
this exception should not be applied to the rule
OF damages, but should be interpreted Is relev-
ing municipal corporations from paying at or
before the time OF tha appropriation. a. such .
corporation, In exercising the right of eminent
domain. stands in the place Of the state itself.
We know of no case holding that an appropri-
at. lonA il nj OK th,v~
the meaning of such provision, and. If we were
to undertake to make such a distinction here,
further difficulties would present themselves in
constituting these two clauses. The word 'dam-
agci." contained in the first clause, must b.
held to apply to the second clause also, or the
result would be that where a portion of the
owners land is taken for a right-of-way only
the value of the part taken can be recovered,
and there can be no recovery for any damages to
the remainder. while in mono OF the land is
taken, but it Is damaged, such damages could
be recovered under the first clause.
BY constituting this constitutional provision 40
requiring payment to be first made in all cases,
and giving the second clause the effect OF laying
down q rule OF damages rs to the appropriation
OF a right-of-way by corporations other than
municipal, all conf CT between the two clauses
is avoided. and fun force is given to each and
every part Such is the best sustained con-
struction 10 can receive
The policy OF laying down a rule with respect
to benefits. which at least permits discrimna-
ton to be made in favor of munich pal as against
other corporations, was addressed 10 the people
and they saw fit TO embody 1t in the constitu-
ton which they framed aud adopted They
laid down a special rule with regard TO the pay-
ment OF damages irrespective of benefits as to
cor porations other than municipal. in appro-
Or atng property for "A rght-of-way, and left
room for the legislature TO prescribe the rule of
damages which should be observed with regard
to municipal corporations. In the great ma
iori.y of cases the appropriation OF lands by MT
uicipal corporations is for highway street pur-
poses aud there may be good reason for not
having down any absolute rule with regard 10
benefits by the constitution in such cases. and
for leaving room for the legislature to establish
the same Until the legislature establishes a
r,,,e il Will he left for the courts to determine
what Il shall be.
The effect of the city charter in providing for
assessments for benefits was to allow benefits 20
be deducted from damages and the value of the
land appropriated. the constitutional provision
not applying 1t very doubtful whether there
ia any we'll founded reason for discri in n alton
between the val ne OF the land taken aud the
damages to the remainder in the allowance of
beuenra TIE exercise of the power OF eminent
domain in the very great majority OF cases 10
for the purpose of obtaining rights-of way ard
often the damage to the remsinder OF the ,rac,
10 OF much moro consequences than the