
    [No. 10668.
    Department Two.
    February 28, 1913.]
    Charles Johnson, Appellant, v. The City of Spokane, Respondent.
      
    
    Judgment — Res Judicata — Matters Concluded. A judgment in condemnation proceedings for the purpose of ascertaining the amount of damages to abutting property by reason of a change of street grade is res judicata and a bar to a subsequent suit by a party thereto to recover damages therefor.
    Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered June 27, 1912, upon granting a nonsuit, dismissing an action for damages to property.
    Affirmed.
    
      Morrill, Chester & Skuse, for appellant.
    
      H. M. Stephens and Bruce Blake, for respondent.
    
      
       Reported in 130 Pac. 341.
    
   Main, J.

This is an action for damages to abutting property by reason of changing the grade and the regrading of a street. The plaintiff is the owner of lot 19, in block 5, in First addition to the West Riverside addition to the city of Spokane, which lot fronts on Clark avenue, one of the public streets of the city. On June 12, 1900, the city council passed an ordinance which established the grade of Clark avenue, but the street was never improved under this ordinance by bringing the surface of the street to the grade line thus established. On January 14, 1910, an ordinance was passed by which the grade of Clark avenue was changed and re-established. This ordinance provided for the improvement of the street by grading, sidewalking, etc. The contract for this work was entered into on February 18, 1910, and thereafter the work was prosecuted. On July 28, 1911, while the work of regrading and sidewalking was in progress, the plaintiff in this action filed a verified claim with the city, demanding damages on account of the lowering of the surface of the street in front of his property to the grade line established by the ordinance of January 14, 1910.

On October 26, 1911, the city council passed an ordinance providing for the institution of a condemnation proceeding for the purpose of ascertaining the amount of damages to abutting property by reason of the changing and reestablishing of the grade of Clark avenue. Pursuant to this ordinance, condemnation proceedings were begun, a trial had, and judgment was entered therein on December 27, 1911. The plaintiff here was a party to that action and appeared therein by counsel. The judgment in the condemnation suit has never been vacated or set aside. During the month of January, 1912, the present action was begun on the claim that had been filed July 28, 1911. In due time the cause came on for trial. At the conclusion of the plaintiff’s evidence, a motion for nonsuit was interposed by the defendant. The motion was granted, and dismissal of the action followed. The plaintiff has appealed.

The sole question presented is whether the judgment in the condemnation suit is res judicata as against appellant’s right to prosecute the present action. To ascertain the amount of the damage which appellant’s property would suffer by reason of the change of grade of Clark avenue was one of the purposes for which the condemnation action was brought. The appellant appeared therein. It was his right and his duty to litigate in that action the very question which he is seeking to have determined in the present action. In Compton v. Seattle, 38 Wash. 514, 80 Pac. 757, a similar question was presented to this court, and the decision in that case is conclusive as against the appellant’s right to maintain the present action.

The judgment will therefore be affirmed.

Morris, Ellis, Fullerton, and Mount, JJ., concur.  