
    [No. 7841.
    
      En Banc.
    
    October 5, 1909.]
    Thomas F. Brazell et al., Appellants, v. The City of Seattle et al., Respondents.
    
    Municipal Corporations —• Streets — Vacation — Hearing — Continuance. A city council Laving obtained jurisdiction, by petition and notice, to vacate a street, jurisdiction is not lost by postponing the hearing without entering a continuance to a day certain or giving notice of the time.
    Same — Power to Vacate — Procedure. City councils have no power to vacate streets except as delegated by the legislature, and the procedure therefor must be strictly followed.
    Same — Replats—Power to Modify — Statutes — Construction. Under Laws 1903, p. 139, authorizing street vacations and replats, upon the filing of a replat, “accompanied with a petition for the change desired” by three-fourths of the owners, which the council may approve or reject, and “assess damages or benefits, award the same and make such order in the premises as justice and the public welfare may require,” the council has no power to modify the proposed replat, hut must approve or reject it in its entirety, and an order approving part of the vacation petitioned for is void.
    Same — Repeats—Power to Modify — Statutes. Laws 1903, p. 139, requiring a proposed replat for street vacations to be filed showing the changes petitioned for by three-fourths of the owners, and giving the city council complete jurisdiction to inquire into and determine the merits, assess damages or benefits, award the same, and make orders required by justice and the public welfare, the city council can only approve or reject the petition in its entirety, and an order altering the proposed replat is void; the orders required by justice, etc., referring to the necessary assessments and awards, and not to modifications of the replat.
    Eminent Domain — Use of Streets — Right of Abutters — Compensation. An abutting owner cannot be deprived of his right to the use of the full width of the street without just compensation.
    Same — Rights of Abutters — Injunction—Special Injury. An abutting owner deprived of his right to the use of the full width of the street immediately in front of his lot, by a void order vacating a portion of the street, is specially injured and may maintain an action to enjoin the- proceeding, but only so far as it affects his property.
    Same — Improvements — Assessments — Remedy by Appeal — Injunction. Where a city council had jurisdiction to approve or reject a petition for a replat, and to assess damages or benefits, the remedy for illegal assessments upon a void order modifying the replat is by the appeal provided by the city charter, and not by injunction.
    Appeal from a judgment of the superior court for King county, Morris, J., entered December 23, 1908, upon sustaining a demurrer to the complaint, dismissing an action to enjoin the vacation and improvement of certain streets.
    Reversed.
    
      Wright & Kelleher and Wright & Kent, for appellants.
    
      Scott Calhoun, Howard A. Hanson, and Oliver C. McGilvra, for respondents.
    
      
      Reported in 104 Pac. 155.
    
   Crow, J.

This action was commenced by Thomas F. Brazell and Laura J. Brazell, his wife, against the city of Seattle, D. Lambert, and A. C. Goerig, to annul, declare invalid, and enjoin certain proceedings taken and threatened by the city for the vacation of certain streets, the platting of other streets in lieu thereof, and the grading and improving of streets shown by the replat. The defendants interposed general and special demurrers, which were sustained upon the sole ground that the amended complaint did not state a cause of action. The plaintiffs declined to plead further; whereupon the action was dismissed, and they have appealed.

The question presented by this appeal is the sufficiency of the amended complaint. Its allegations in substance are, that the appellants and the respondent Lambert are respectively owners of certain lots in the city of Seattle abutting upon opposite sides of East Aloha street, which runs east and west between Thirty-ninth avenue north and Fortieth avenue north, appellants being located on the north side of East Aloha street; that in August, 1903, the appellants, Lambert, and many others owning lots in the same locality, conceived a scheme for vacating numerous streets and alleys therein, and dedicating others in lieu thereof; that in furtherance thereof they prepared a proposed replat of the locality, including the portion of East Aloha street above mentioned, together with a petition to the city council in favor of the re-plat, which petition, at the instance of the respondent Lambert, and others associated with him, was signed by the appellants and by three-fourths in number and area of the owners of all the property lying within the district; that the petition was filed with the city, and notice given that the same would be heard on October 19, 1903; that the hearing was adjourned until November 30, 1903, on which latter date no adjournment was made; that on December 7, 1903, the council again considered the petition and made a further adjournment until February 14, 1901, on which latter date it, without notice, adopted the report of its street committee in favor of granting the prayer of the petition; that no further action was taken until May 14, 1906, when the city council, without further notice, passed Ordinance No. 13,773, which purported to carry out the terms of the petition and adopted the replat, subject to the change that instead of vacating all of East Aloha street between the property of the appellants and the respondent Lambert as prayed, it vacated the south half thereof which abutted upon the property of Lambert, thus leaving the street open upon appellants’ side, but closing it upon the opposite side; that the change was fraudulently procured by Lambert for the purpose of injuring appellants and benefiting himself, as he would thereby acquire title to the vacated portion of the street and still retain for his convenience an open street on the opposite side adjoining the appellants’ lots; that the respondent Lambert, claiming title to the vacated portion of East Aloha street, is about to take possession thereof to appellants’ special injury and damage; that appellants had no knowledge of the proposed passage of the ordinance adopting the replat, or the variance of its terms from the replat proposed by the petition, until November, 1906; that the ordinance, in addition to providing for the vacation of certain streets, also provided for the dedication of others in lieu thereof in the district and locality affected by the street vacations; that in June, 1908, the city council passed Ordinance No. 18,665, providing for the improvement of the replatted system of streets, and providing that the vacated portion of East Aloha street, adjacent to the premises of respondent Lambert, be not graded; that pursuant to such ordinance, the city and the respondent Goerig, as contractor, are about to regrade and improve the replatted streets, including the nonvacated portion of East Aloha street; that the city is about to assess the leal property in the district in question, including appellants’ property, to pay the expenses of such improvements; that the pretended Ordinance No. 13,773, and the contract of the city with Goerig, are each null and void; that the assessments will be null and void and a cloud upon appellants’ title; that by reason of such illegal vacation, replat, improvement, and threatened assessment the appellants will suffer irreparable damages, unless the same are enjoined; and that appellants’ injury will be special and peculiar to them. An injunction was demanded, permanently restraining the respondents from proceeding with the improvements under Ordinance 18,665, from levying any assessments therefor, from treating East Aloha street as vacated, and particularly restraining the respondent Lambert from taking possession of any portion of East Aloha street or claiming the same as his private property.

The appellant contends (1) that the city council, after a petition for vacation is fifed, cannot act upon the same without notice and independently of the date fixed for the hearing; (2) that it cannot vacate streets otherwise than in accordance with the terms of the petition; and (3) that in any event its action can be enjoined as fraudulent. The respondents contend that three questions are involved in this appeal, as follows: (1) Have appellants such an interest in the re-plat proceedings that they can in a collateral attack secure the annulment of the entire proceedings except as to the portion of East Aloha street abutting upon their property? (2) can appellants in this proceeding annul the vacation of any portion of East Aloha street vacated under Ordinance 13,773? and (3) will an injunction lie to restrain the city from improving the public portion of East Aloha street and assessing the cost of such improvement against private property specially benefited thereby.

The amended complaint affirmatively shows that proper notice fixing a time for the hearing of the petition was given; that several continuances were entered, but that on one occasion no continuance was entered although the council considered the petition at its next meeting without further service. The council obtained jurisdiction of the petition by virtue of the original notice, but the appellants now contend that, hav- ■ ing once failed to order any continuance, it lost jurisdiction so completely as to render its subsequent orders void. This contention cannot be sustained. Mr. Elliott, in § 293 of the second edition of his work on Roads and Streets, discussing this question, says:

“The sound doctrine upon this subject, as it seems to us, is this: If the parties are once properly in court then the failure to take action at the proper time will not oust the jurisdiction, although it may constitute error reviewable by certiorari or on appeal. This is in harmony with the general principle that where jurisdiction has once attached it is not lost by an error committed in the course of the proceedings. The general rule unquestionably is that when jurisdiction is acquired, the order or judgment is not void, although it may be erroneous.”

Power to vacate streets and highways is vested in the legislature, and may be delegated by it to municipalities, which has been done in this state. There is in a city council no inherent power to vacate streets, and when such power has been delegated to it by the legislature the procedure therefor which the statute provides must be strictly followed. The procedure here adopted was that prescribed by chapter 92, Laws 1903, page .139, the first section of which provides for the preparation of the proposed replat, together with a specified petition for its adoption by the city council. Sections 2 and 3 provide for notice or process and its service. Section 4 reads as follows:

“That thereafter such board of county commissioners, or •city council shall have full and complete jurisdiction to inquire into and determine the merits of the changes or relief prayed for, assess damages or benefits, award the same and make such order in the premises as justice and the public welfare may require.”

From a careful consideration of this statute, we conclude that the petition and notice only conferred upon city councils authority to approve and adopt or disapprove and reject the identical plat presented. By §1 it is required that the proposed replat be drafted upon a copy of the existing plat, which must be “accompanied with a petition for the change-desired that is, for the change indicated on the replat and desired by the petitioners ; not for some other changes which the council may desire. If the proposed plat and petition-do not meet the approval of the city council, they are at liberty to reject them entirely, in which event the original plat will continue without modification.

In State, Condict. v. Ramsey, 65 N. J. L. 503, 47 Atl. 423, the supreme court of New Jersey said:

“It is objected that it was not lawful for the surveyors to return, or for the freeholders to confirm, a vacation less extensive than that applied for. This objection must prevail. Vacation rests on the same power and procedure as the laying-out of roads, and it has been often adjudged by this court that the application is controlling in this regard. A material variance from the application will vitiate the return. State v. French, 24 N. J. Law 736; Powell v. Hitchner, 32 N. J. Law 211; Freeman v. Price, 63 N. J. Law 151, 43 Atl. 432. The surveyors can no more vacate part of the road of which, complete vacation is sought than they can lay out a road differing materially from the application upon which they act. The application to vacate may be limited to a part of' a road (State v. Bassett, 33 N. J. Law 26), but the vacation cannot lawfully be less extensive than the application.”

We think this the correct rule to be applied to the instant case. If the council when acting upon the petition could, upon their own initiative, change the vacation of one street on-the proposed replat, there would be no limitation upon their power to change many others, which might result in the preparation and adoption of a replat other than the one petitioned for. While we will not inquire into the motives which actuated the appellants when they signed the petition, it may well be imagined that they might have been willing to endure-the inconvenience of submitting to the entire vacation of' East Aloha street, opposite their lots, in exchange for the benefit to be derived by them from the title which they would, acquire to the north half of the portion of the street so vacated, and which they might have regarded as ample compensation for their damages sustained. They have recovered no compensation for any damages they have sustained by the vacation of the south half, and the narrowing of the street immediately in front of their lots.

Respondents, citing §4 of the statute, contend that the petition and the notice conferred complete jurisdiction upon the council to make such order in the premises as justice and the public welfare may require, and that they were authorized, in pursuance of such authority, to vacate a less portion of the street than the petition requested. To confer jurisdiction upon the council, the petition of three-fourths in number and area of the owners was required. The proposed replat may take or damage property not only of the petitioners, but also of others in the district who have not petitioned, and their property could not be so taken or damaged without compensation. Const, art. 1, § 16. The legislature to meet this condition, by §4 authorized the assessment of damages and benefits, and the words “make such order in the premises as justice and the public welfare may require,” used in §4, undoubtedly refer to such necessary assessment of damages and benefits, and were not intended to confer authority upon the city council to first modify the proposed replat and then adopt it as modified. Our conclusion therefore is that the city council had no jurisdiction to make an order vacating a portion only of East Aloha street, where its entire vacation was petitioned, and that its order making such partial vacation is void.

The appellants, as the owners of lots abutting on the portion of East Aloha street partially vacated and narrowed, suffered special injury and damages, different in land and not simply in degree, from that suffered by the public in general, and are entitled to maintain this action to enjoin such vacation. The right of the owner of a city lot to use the adjoining street to its full width is well established, unquestioned, and one of which he cannot be deprived without just compensation. It is as much a property right as the lot itself. In Dantzer v. Indianapolis Union R. Co., 141 Ind. 604, 39 N. E. 223, 50 Am. St. 343, 34 L. R. A. 769, the supreme court of Indiana, quoting from its previous decisions and commenting thereon, says:

“At least two cases in this state have defined the extent of that appendant property right of access. In Haynes v. Thomas, 7 Ind. 38, it is said: ‘These decisions establish the principle that besides the right of way which the public has of passage over a street in a town or city, there is a private right which passes to the' purchaser of a lot upon the street, and as appurtenant to it, which he holds by implied covenant that the street in front of his lot shall forever be kept open to its full width.’ In the case of Tate v. Ohio & R. R. Co., 7 Ind. 479, the court quotes the above passage from the case of Haynes v. Thomas supra, and says, in application of the principle to the facts of the case, that ‘the person, whether natural or artificial, causing the obstruction, is liable to the owners of the adjoining lots for the injury. It is thus carefully limited to those owning lots fronting on the street at the point of obstruction. That is the case made in the record. Such owners only seem to sustain special injury.’ These cases, and probably others in this state, hold that this property right cannot be taken or obstructed, even with legislative sanction.”

Abutting owners who are deprived of the right to enjoy the street to its full width immediately in front of their property, being specially injured, are entitled to equitable relief by injunction. The ordinary and well-established rule that owners who are only remotely affected or who sustain no special injury different from that sustained by others in the vicinity, are not entitled to equitable relief, does not apply to them, nor does it deprive them of their right to seek protection in their individual capacity.

There are no allegations in the amended complaint sufficient to show that as to any other streets vacated or changed by the replat, the appellants are injured in any manner other than as the public in general may be injured. This being true, they are in no position to enjoin such vacation in this action. Ponischil v. Hoquiam Sash & Door Co., 41 Wash. 303, 83 Pac. 316; Symons v. San Francisco, 115 Cal. 555, 42 Pac. 913, 47 Pac. 453.

As to the threatened assessments, the appellants should seek their remedy by the usual course of appeal provided by the city charter and the statutes of the state. The amended complaint states a cause of action sufficient to entitle the appellants to an order of injunction restraining the partial vacation and narrowing of East Aloha street in front of their property.

The judgment is reversed, and the cause remanded with instructions to overrule the demurrer.

Rudkin, C. J., Dunbar, Mount, and Gose, JJ., concur.  