Law Land Lines: Property Law and the Transformation of Seattle’s Terrain – The American Surveyor

Scripture envisages a time when “Each valley shall be lifted up/ each mountain and hill made low / and the uneven floor shall turn into degree .…” (Isa. 40:4 (RSV).) Whereas the which means of this prophecy is sort of one other story, the imagery matches one surveyor’s mission to rework Seattle on the flip of the 20 th century.

Seattle was established on the hills and tidal mud flats alongside the japanese shore of Elliott Bay, a pure deep-water port in Puget Sound. Fed by a Mount Rainier glacier, the Duwamish River carried timber and coal to Elliott Bay for commerce. The area was blessed with pure sources, however common flooding on the low-lying wetland stymied building, and the steep rise landward was seen as a hindrance to a viable business heart.

Beacon Hill regrade overlooking Elliott Bay (Lantern Slide Assortment 2002.3.485). Museum of Historical past & Business (MOHAI)

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We’ll use the backdrop of Seattle’s twenty-year marketing campaign to chop down hills and fill tidelands for instance authorized ideas affecting actual property, amongst them constitutional takings, particular profit assessments, and the obligation to shore up your neighbor’s land generally known as lateral assist.

Map of Seattle, 1914, exhibiting sections, authorities tons and annexations. Blueline on linen. Court docket engineering data (Collection 2608-05). Seattle Municipal Archives

R. H. Thomson

The surveyor who introduced his dream to fruition was Reginald Heber Thomson (1856-1949), born to a religious, well-to-do household in Indiana. Perched above the Ohio River, their house’s commanding views of woodland and the riverfront metropolis of Madison might have knowledgeable Thomson’s perceptions of the interaction of nature and civilization, and, as he himself noticed, “the causes of metropolis progress.”

Commercial, 1911, in Polk’s metropolis listing. College of Washington Libraries, Particular Collections

Exerting a robust affect on Thomson was his father Samuel, a math professor on the Presbyterian Hanover Faculty and a preacher and biblical literalist. (He strove to reconcile the rising science of geology with Genesis holy writ in an 1857 lecture.)

Thomson was additionally formed by the Progressive Period and would turn into one in all its main apostles. Along with social and political change, this era is thought for the pursuit of science and engineering to beat hurdles, which the journal Science embraced in 1901 because the dream of “directing the nice sources of energy in Nature for the use and comfort of Man” (Croes, 14(342), 83).

Graph of relation between horsepower and grade, 1913. Seattle Engineering Dept. (Collection 2613-07). Seattle Municipal Archives

In 1884, Thomson grew to become Seattle’s metropolis surveyor and 7 years later King County surveyor. The subsequent yr, Seattle appointed him metropolis engineer. Along with eradicating hills, Thomson is essentially credited with different Herculean achievements for town, together with its water provide pipeline, sewer system, the straightening of the Duwamish River for industrial use (as we speak a Superfund web site), and the ship canal connecting Lake Washington with Puget Sound.

The Regrade Plan

Recounting his work with a railroad survey social gathering in Washington state, Thomson wrote of “the boldness this crew had in Seattle’s future” amongst their banter. Including his personal far-seeing two cents, Thomson recollected difficult them with: “How will individuals in a single finish of town be capable to do enterprise with these within the different finish, with such hills and deep valleys between them?”

Regrading on Third Avenue close to Spring Avenue, Seattle, 1906. Picture by Webster & Stevens. Within the distance is the grand Denny Resort, accomplished in 1903 and razed three years later when the hill was lowered about 100 ft. Museum of Historical past & Business (MOHAI)

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Within the days of horse-drawn transport, steep grades disrupted journey, bodily dividing town and making it pricey to pump water to houses. As metropolis engineer, Thomson was a tireless advocate to Seattle’s politicians and residents for regrading the hills. For every particular person mission, the method required a petition signed by a majority of affected property house owners and a metropolis council ordinance, just like the one “offering for the development of Jackson Avenue and different streets within the metropolis by grading and regrading the identical.” (Gerard, 73 Wash. 519 (1913).)

In accordance with Thomson’s plan, town excavated solely the grid of roads, whereas landowners bore the price of bringing down their very own intervening tons—ideally on the similar time and utilizing the identical contractor (Wilson, 2009). Harnessing the ability of the Cedar River, water cannons disintegrated the hills, and their constituent alluvium was channeled downhill to reclaim the tidelands, creating 27 new metropolis blocks.

Authority to Regrade

Though the regrades garnered widespread assist, some little doubt questioned the very energy asserted by town to decrease the streets and oblige the inhabitants to regulate correspondingly. (Reportedly “town used eminent area to bully recalcitrant residents” (Klingle, 2007).) However simply because the regulation sometimes allows native governments “to open [originally] and preserve in restore streets, lanes, alleys, and so forth.,” that very same municipal perform consists of “the ability to change the grade or change the extent of the land on which the streets … are laid out,” the U.S. Supreme Court docket beforehand held. (Smith v. Corp. of Washington, 61 U.S. 135 (1857).)

Water cannons regrading Denny Hill, ca. 1906. Picture by Webster & Stevens (1983.10.8164). Museum of Historical past & Business (MOHAI)

The query results in property regulation’s abiding discourse: the stress between particular person rights and the larger good. In Smith, the Court docket denied a declare stemming from the regrade of Ok Avenue in Washington, D.C. There the Court docket dominated that the “plaintiff might have suffered inconvenience and been put to expense in consequence of such motion; but … personal pursuits should yield to public lodging.”

Whereas authorized challenges didn’t put a cease to Seattle’s regrading, the regulation did entitle landowners to compensation for sure losses, equivalent to buildings impaired or destroyed in the middle of the work. As a result of every property was distinctive, the extent of restitution relied on the feasibility of whether or not “buildings could be lowered [in situ,] or moved off the premises and moved again after the tons have been lower all the way down to the regrade, [or] whether or not they have been a complete loss.” (In re Jackson Avenue, 47 Wash. 243 (1907).)

What saved such compensatory damages to a minimal (and have become a factual situation for the courts) was the inevitability {that a} new business district would improve land values. The regulation permitted town to offset the financial damages by the demon­strable advantages of leveling the grade, “for if the market worth of the property … will likely be enhanced by the development, there would, manifestly, be no pecuniary loss, and subsequently no authorized harm.” (Metropolis of Seattle v. Bd. of House Missions of Methodist Protestant Church, 138 F. 307 (ninth Cir. 1905).)

A Seek for Goal

Thomson’s path to the Pacific Northwest was not a straight line. After finishing his research at Hanover, together with “particular programs in surveying, chemistry, and geology,” Thomson moved to California the place his father had accepted a place as headmaster of a Christian faculty in Sonoma County. Throughout his 4 years in California, he taught at his father’s college and labored as a surveyor together with his brother, together with mapping a subdivision of the Rancho Tzabaco (Wilson).

Element from Anderson’s New Map of King County, Washington Territory, 1888, revealed by Anderson, Bertrand & Co. Library of Congress

Biographer William Wilson reckons that Thomson’s upbringing instilled in him a sure advantage tinged with church doctrine. In a simile Thomson wrote in his autobiography, biblical resurrection offers rise to self-improvement: “[I]t is critical for us to be crushed for service in order that we might rise once more into a brand new life and to a brand new magnificence, because it was for the rock to be crushed that it’d show itself within the flower.” Whereas the tenor is private, the motion evokes a panorama remodeled. In Seattle, Thomson discovered a metropolis not but totally shaped; a land the place he would possibly present his promise.

Particular Profit

The concept of rising property values did greater than cut back town’s legal responsibility for damages. It justified requiring landowners to contribute to the price of regrading with a “particular evaluation” levied towards the affected parcels. A particular evaluation is a technique of financing public enhancements that differs from a normal tax in that it applies solely to particular land. Examples of its software embrace streets and sewers and different

native enhancements which can be appurtenant to particular land and convey a profit considerably extra intense than is yielded to the remainder of the municipality.… A legitimate particular evaluation … is merely compensation paid by the property proprietor for the improved worth of his land.

(Heavens v. King County Rural Library Dist., 66 Wash.2nd 558 (1965).) The existence of a profit is evidenced by “the distinction between the honest market worth of the property [before and] after the particular advantages have connected.” (Id.) Whereas the quantity to be levied is every property’s “proportionate share of the price of the development.” (In re Metropolis of Seattle, 66 Wash. 327 (1911).) A metropolis might not levy an evaluation larger than the particular profit accruing to that property.

Within the case of the Seattle regrades, a panel of eminent area commissioners heard knowledgeable testimony and established the parcel assessments, which have been then confirmed or modified by town council. The assessments have been topic to judicial evaluate. (Id.)

Difficult Assessments

Along with divining greenback value, the bewildering difficulties concerned mapping the exact “zone of profit”: why one lot must be assessed and the subsequent one not; and distinguishing between what to think about a particular profit, versus what facet of the regrade benefited the general public typically and therefore ought to pretty be borne by normal fund income. (Id.; see In re Taylor Ave., 149 Wash. 214 (1928) (the courtroom held sure assessments for the regrade of Seattle’s Denny Hill had been “mounted on a essentially improper foundation [because any] advantages as do accrue are clearly normal advantages and the property is just not chargeable therefor”).)

These judgment calls and valuations have been inexact, to say the least. “No questions come to this or some other courtroom,” stated the state Supreme Court docket, “that contain such entanglements and issues as do these evaluation circumstances. They can’t be resolved by reference to equation or theorem.” (66 Wash. 327.)

The courtroom quoted one of many evaluation commissioners who admitted, “The damages or advantages can’t be found out.” And this from the trial choose: “Justice in its summary sense is unimaginable.” Strikingly resigned, the excessive courtroom stated, “All we are able to hope for, then, is that no larger injustice is completed to at least one than to a different.”

Taking or Tort

The regulation attracts distinctions when figuring out the authorized rights at stake, and the outcomes may be consequential. We depend on courts to “decide into which class a given case might fall.” (Wong Kee Jun v. Metropolis of Seattle, 143 Wash. 479 (1927).)

Then: Stereopticon picture by Carleton Watkins, view from Beacon Hill. Caption in Thomas Prosch picture album reads: “Seattle in 1882 from Dearborn Avenue and Twelfth Avenue South trying NW.” Museum of Historical past & Business (MOHAI)

Wong Kee concerned harm to property from town’s regrading. The lawsuit alleged that chopping into the hill, with out offering adequate slope or shoring, precipitated plaintiff’s neighboring land and enhancements to slip into the void. The shoddy excavation violated the rule “that the proprietor of land has the best to the lateral assist from the adjoining soil.” Thus, if one “removes the soil from his personal land as to deprive the adjoining proprietor of [that land’s] pure assist,” he’s chargeable for the ensuing harm. (Id.) A jury returned a verdict in favor of the plaintiff, and town appealed.

The query for the state’s excessive courtroom was whether or not this hurt was an unconstitutional “taking” of plaintiff’s property or ought to extra appropriately be thought-about a tort: a wrongful act on the a part of town, on this case performing the work negligently or carelessly. The plaintiff argued it was a taking. Property harm from public works, even unintentional, can definitely be dominated a taking, as when flooding from a storm sewer offers rise to a declare that the federal government has in impact used personal property for a public objective (i.e., a retention pond) with out compensation. (See Bunch v. Coachella Valley Water Dist., 15 Cal.4th 432 (1997).)

For causes that can turn into obvious, town argued the declare was a tort. Torts are primarily creatures of state regulation, which suggests legislatures can procedurally restrict their availability. One frequent method lawmakers do that is with claim-filing necessities, which have a tendency to scale back the tort danger publicity for native governments.

Earlier than suing a metropolis, these legal guidelines mandate {that a} potential plaintiff first try an administrative declare for damages, often inside a comparatively brief time after the hurt happens (30 days in Wong Kee). If not rejected, the declare offers town an opportunity to proper the improper or make a calculated payout, if solely to keep away from litigation. A failure to well timed file a declare will stop courts from reaching the deserves of the lawsuit, and, within the case of Wong Kee, would have barred reduction. However this procedural hoop might not intrude with the best earthly rule in American regulation, which requires compensation for property taken.

A Simply Outcome

The courtroom’s process in Wong Kee was to use takings or negligence regulation. Specializing in carelessness as the reason for the slide favored the negligence conclusion: “[W]hen town blindly and willfully proceeds by cause of such inadequacy of plan to wreck personal property, it’s performing tortiously.”

Now: Seattle as we speak. In foreground is Pioneer Sq., a nationwide historic district. Courtesy Shedbuilt.com

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However in “look[ing] additional for the dividing line,” the courtroom was reluctant to permit town its self-serving desire: “[T]o accomplish that could be to benefit from its personal improper, which is abhorrent to well-established authorized ideas.” This value-laden language is an instance of ethical reasoning, a judicial strategy to decision-making that locations on the fore the Structure’s core convictions, equivalent to the best to property. In Wong Kee, the courtroom clearly sought to guard the person and guarantee a simply final result. The courtroom stated town “can not plead a willful improper [a tort] to defeat a simply declare [a taking].” Accordingly, the courtroom affirmed the award of compensation beneath the Structure. (U.S. Const. amend. V.)

Gridlocked

It’s evident from his lengthy profession as a public servant that Thomson valued using engineering know-how to enhance his metropolis and the lives of its individuals. Over the previous century, our society has turn into much less single-minded relating to altering the atmosphere. However even when the regrading of Seattle’s hills was underway, an editorial posed a honest imaginative and prescient: that town, with its “magnificent pure web site, [was missing] an ideal alternative to put out its streets to evolve with the pure options” (Klingle).

The author was plainly referring to decisions in street alignments. Seattle’s roads unremarkably adopted a strict grid sample, unwaveringly reflecting the platted sectionalized land with out heed to the severity of the grade. Whereas roads attentive to contours could be longer, they’re designed for mild incline and might encourage a way of concord with nature. It’s onerous to think about the havoc to non-public property being any worse had town elected to revamp its streets moderately than get rid of its hills.

As our respect for the pure atmosphere and consciousness of our place inside it evolve, the story of Seattle’s regrades offers cause for pause earlier than pushing on to remake the world in our picture (alluding to Gen. 1:26).

Bibliography

Matthew Klingle, Emerald Metropolis: An Environmental Historical past of Seattle (Yale Univ. Press, 2007).

R.H. Thomson, That Man Thomson (Univ. of Washington Press, 1950).

William H. Wilson, Shaper of Seattle: Reginald Heber Thomson’s Pacific Northwest (Washington State Univ. Press, 2009).