Bowes v. City of Aberdeen

Citations

• 58 Wash. 535
• 109 P. 369
• 1910 Wash. LEXIS 967

Syllabus

<p>Eminent Domain—“Taking or Damaging” Property—Judicial Question. What is, or is not, a taking or damaging of private property is a judicial question, and the courts are not bound by a legislative declaration to the effect that the filling of low lands shall not be considered a taking or damaging within the constitutional meaning of those terms.</p> <p>Municipal Corporations—Improvements—Filling Low Lands— Police Power—Health. A city may, by virtue of the police power, in a proper case, and when necessary to the public welfare, irrespective of the right of eminent domain, fill in low lands that are unsanitary and a menace to health, without rendering compensation for damages claimed to private property filled in; and under Rem. & Bal. Code, § 7975, may assess the property to pay the cost of the work, providing the exercise of the power is not unjust or arbitrary.</p> <p>Same—Necessity fob Improvement—Evidence—Sufficiency. A necessity exists, authorizing the exercise of the police power by a city for the purpose of filling low lands, and the improvement is not disproportionate to the danger, where it appears that an area covering one thousand city lots, within or adjacent to the business portion of a city where permanent streets are necessary, are so low and covered with stagnant water as to be unsanitary and a serious menace to the health of the city, and that the danger can be removed by filling in the land, and by no other practical or economical method.</p> <p>Same—Determination—Judicial Question. Whether the facts warrant the exercise of the police power for the purpose of filling low lands in a city is a judicial question to be resolved by the courts.</p> <p>Same—Statutes—Title and Subject of Act. The title of the act of 1909, empowering cities “to fill low lands . . . and for that purpose to exercise the right of eminent domain for the taking or damaging of property” is sufficiently broad to authorize the filling of low land under the police power as a sanita