1. MUNICIPAL CORPORATIONS (§ 473*)-PUBLIC IMPROVEMENTS-ASSESSMENT OF BENEFITS. F. avenue, running east and west, and S. street, when extended, crossed at right angles. Block 3 was on the northeast corner of the intersection, block 10, the north and south halves of which were separately platted into lots, on the southeast corner, while block 15 was south of block 10 and separated therefrom by P. avenue. F. avenue, which was narrow, and the line of which was irregular in front of block 10, was widened by taking land from block 10, and S. street was extended from P. avenue to F. avenue. The six lots in the north half of block 10 were assessed for the improvement of F. avenue at $517.50 each, while the south half of the lots in block 3 were assessed ap proximately $73 each. The three west lots in each half of block 10 were assessed for the improvement of S. street $1,732.20, while the corresponding lots in block 3 were assessed $81.70, and those in block 15 $288.70. The owners of block 10 were awarded for property taken $4,649.70, and the total assessment against their property was $4,837.20. Held, that the assessment against block 10 was so disproportionate to the relative benefits, when the benefit to other property was taken into consideration, as to show that it was made arbitrarily, apparently with the purpose of compelling the owners of such block to practically donate their property for street purposes, and to justify the Supreme Court in setting aside a second assessment against such block, and ordering an arbitrary reduction of 40 per cent. in the amounts assessed. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 1121; Dec. Dig. § 473.*] 2. MUNICIPAL CORPORATIONS (§ 472*)-PUBLIC IMPROVEMENTS-ASSESSMENT OF BENEFITS. Assessments for public improvements must be distributed with substantial equality over all property of like kind and similarly situated with reference to the improvement, and a property owner may not be required to pay more than his relative share of the cost of the improvement. to the owner or into court, reimbursing itself for money so advanced from the special assessment, and that, if there be no funds available, the city may contract an indebtedness for the purpose of raising funds, where a city advanced the price of land taken for a street improvement from its general fund, and incurred no obligation on its own behalf or on behalf of the assessment district upon which interest had accrued or was running, it could not, in assessing benefits, charge the property owners with interest on the money so advanced. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1102-1104; Dec. Dig. § 460.*] 5. MUNICIPAL CORPORATIONS (8 460*)—PUB LIC IMPROVEMENTS-ASSESSMENT OF BENEFITS. Under Rem. & Bal. Code, § 7787, providing relative to assessments for public improvements, that the commissioners shall include in such assessments the compensation and damages all costs and expenses of the proceedings inawarded for property taken or damaged, with curred to the time of their appointment or of the reference of the proceeding to them, together with the probable further costs and expenses of the proceedings, including the est1mated cost of making and collecting such assessment, where an assessment was set aside by the Supreme Court, the costs and expenses of a reassessment were properly assessed against the property benefited. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 1102-1104; Dec. Dig. § 460.*] Department 1. Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge. Proceeding by the City of Spokane against A. A. Kraft and others. From a judgment modifying and confirming street improvement assessment rolls, defendants appeal. Assessment ordered reduced. Post, Avery & Higgins, of Spokane, for appellants. H. M. Stephens, Ernest E. Sargeant, and Dale D. Drain, all of Spokane, for respondent. CHADWICK, J. [1] This case has been before this court and was sent back for reassessment. Spokane v. Kraft, 67 Wash. 245, [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1120; Dec. Dig. 121 Pac. 830. We held that the assessment 472.*] 3. MUNICIPAL CORPORATIONS (8 465*)-PUB LIC IMPROVEMENTS-ASSESSMENT OF BENEFITS. In assessing the benefits arising from public improvements, the eminent domain commissioners should disregard entirely the source from which the property taken for the improvement comes, and treat one whose property has been taken in the same manner as one whose property has not been taken. district first defined did not include all of the benefited property, and the city was directed to extend its boundaries so that there might not be unreasonable discrimination in favor of or against any particular property The court also said or the owner thereof. in the former opinion that the remarks of the court, with reference to the arbitrary fixation of the boundaries of the assessment [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1108; Dec. Dig. district, applied to the unequal apportioning 465.*] of the assessment by reason of the excessive 4. MUNICIPAL CORPORATIONS (§ 460*)-PUB-charge against block 10, as compared with LIC IMPROVEMENTS-ASSESSMENT OF BENE- other blocks. FITS. Under Rem. & Bal. Code, § 7817, providing that if any city shall desire to take possession of property or proceed with any improvement, the compensation for which is to be paid in whole or in part by the proceeds of a special assessment, it may advance from its general funds, or any moneys available for the purpose, the amount of the assessment and pay it The case comes to us upon two assessments, one known as the First avenue assessment district, and the other the Sheridan street assessment district. To illustrate our argument, we have prepared plats showing appellants' property and its relation to other property similarly affected. The heavy lines Referring first to the First avenue assessment, the property affected is the north half of block 10, and was assessed in the amounts shown on the plat. For instance, lots 7, 8, and 9, in block 10, are assessed for $517.15 each, while corresponding lots immediately across the street are assessed for approximately $73 each. It is true that the lots in block 3 extend through to Sprague avenue, an improved street, and that they are less in area than the lots in block 10, but the assessment laid by the board upon the lots in block 10 seem entirely disproportionate to the relative benefits. It cannot be said that First avenue was open to the owners of the lots in block 3, and not open to the appellants, for, although the line of the appellants' property on First avenue was irregular, they nevertheless had the same access to that part of First avenue which was open, as did the owners of the property in lot 3. The legal effect of the proceedings was to widen First avenue, and it seems to have been the purpose of the commissioners to put the cost of widening this avenue upon the appellants to the very last cent that in their judgment the law would allow. Referring now to the Sheridan street assessment, we find the property, the west half of block 10, assessed for $1,732.20, the lots in block 3 assessed for $81.70, and those in block 15 for $288.70, while a comparison of the levy upon lots 1, 2, and 3 in block 10 with lots 4, 5, and 6 in block 15. each having the same frontage on Pacific avenue, shows a discrimination even more marked. It seems to us that, after a display of these figures, an argument is not necessary to show that the assessment was arbitrary and disproportionate to benefits realized by the owners of the property taken for street purposes. The amount awarded in the condemnation proceedings to the appellants for the property taken was $4,649.70; the assessment for benefits is $4,837.20. It may be that the city has complied with the letter of our former opinion, but it does seem that it has violated its spirit and has overlooked the force of that part of the opinion which refers to the inequality of the assessment. The figures indicate a purpose to maintain the intent of the former assessment to make the property owner bear an award in condemnation proceedings by charg ing it back in the way of an assessment for benefits, an intent which in all of these proceedings has been but ill concealed. [2] In some of our cases where there was no question of relative benefit, the court has said that a property owner could not complain of the amount of the assessment, provided it did not exceed the benefits. In those cases the questions of relative value seems not to have been raised. It has never been our purpose to hold, for it is not the law, that a property owner can be compelled to give his property for a public use without compensation, or, in meeting a burden com Interest mon to the public, pay more than his rela- Without reviewing the testimony of the witnesses who testified as to the unfairness of the assessment, we are of opinion that the assessments laid upon the property of appellants are disproportionate when the benefit to other property within the district is taken into consideration. Seattle v. Gatton, 76 Wash. 401, 136 Pac. 488. But it is insisted that we have held, without qualification and steadfastly, that this court will not disturb an assessment, unless it appears that it was made in fraud of the right of a property owner, or that it was arbitrary, or captious, or that the assessment was made upon a fundamentally wrong basis, and that there is no evidence in this case that this was so. It occurs to us that the record is pregnant with the indicia of an arbitrary purpose to lay a heavy hand upon appellants and to compel them, by a process of litigation and bookkeeping, to practically donate the property taken from them for street purposes. [3] No better evidence could be offered than the fact that the eminent domain commissioners disregarded the relative situation Total ..... Upon the hearing below the court denied the item "Supreme Court costs," and taxed all of the other items against the appellants. The money to pay the condemnation judgment was taken out of the general fund, under the statute which permits this to be done. Section 7817, Rem. & Bal. Code. When paid, it was the property of the claimants in the condemnation suit. They had a right to receive their award, and it then became the duty of the city to assess this amount against the benefited property. If it has not done so because of its own neglect to observe a proper procedure, it would seem that it would be manifestly unfair to charge the property owner with interest. It would be in effect treating the condemnation award as a loan, with interest, until the city could levy an assessment which would take back or effect a compulsory payment of its involuntary loan. It is true that we have said that interest accrued and costs incurred may be included upon a reassessment. Vander Creek V. Spokane, 78 Wash. 94, 138 Pac. 560. Such holding would be proper in all cases where it is made to appear that the award had not been paid or bonds or warrants had been issued in payment for the work done, and interest was running against the city. A condemnation proceeding and an assessment for benefits accruing from the opening of a street are distinct, and will ordinarily be treated as having no relation to each other. In re Third, Fourth, and Fifth Avenues, 49 Wash. 109, 94 Pac. 1075, 95 Pac. S62. We have not here a situation where the city had incurred an obligation, either on its own behalf or on behalf of an assessment district, upon which interest had accrued or was running, and for that reason the cases and benefit to other property. While it may [4] In making up the new assessment roll, [5] In Re South Shilshole Place, 61 Wash. 246, 112 Pac. 228, the court construed the statute (section 7787, Rem. & Bal. Code), saying the use of the words "all costs and expenses of the proceedings' clearly indicate an intention to make the property benefited carry the entire burden of the improvement." The same holding was made in Re Westlake Avenue, 40 Wash. 144, 82 Pac. 279, and in Re Jackson St., 62 Wash. 432, 113 Pac. 1112. This reasoning, carried to its logical sequence, compels the holding that the costs of a reassessment are "costs and expenses of the proceedings." If it were not for our statute, this holding would probably be compelled by the necessity of cases of this kind and the construction put upon the statute by this court when providing for the costs and expenses of the original condemnation proceeding. It must be borne in mind that the statute provides for reassessments, and, when all of its various sections are considered, we cannot escape the conclusion that the costs of a reassessment must be laid against the property benefited. Taking the case by its four corners, and having considered the evidence of the witnesses, we have come to the conclusion that there is enough in this record, the case having been here twice, to warrant us in ordering an arbitrary reduction in the amounts assessed against appellants' property, and we have decided to direct that, after deducting interest and Supreme Court costs, there be deducted from the amount assessed a sum equal to 40 per cent. of the remainder, and that the roll be then confirmed. It is so ordered. CROW, C. J., and GOSE, J., concur. (82 Wash. 368) GERMAN-AMERICAN BANK OF SEATTLE v. NORMILE. (No. 11750.) (Supreme Court of Washington. Nov. 27, 1914.) Bailment (§ 9*)-CARE AND USE OF PROPER TY-EXPENSES OF ORDINARY AND EXTRAORDINARY REPAIRS. The owner of a grading outfit leased it to defendant by a contract silent as to which party should pay the cost of putting the outfit in good condition, the ordinary repairs incident to its use, or the extraordinary repairs inuring to the benefit of the bailor. Held, that at common law the bailor was liable for extraordinary repairs inuring to his benefit and not caused by any fault of the bailee, that the bailee should bear the ordinary expenses incidental to its use, that whether the bailor or bailee was liable for the ordinary expenses incident to keeping it in repair depended on the compensation, the character of the property and custom, and that, where it was customary for the bailor to put the outfit in good condition at the time of the bailment, he was liable for such expense. [Ed. Note. For other cases, see Bailment, Dec. Dig. § 9.*] Department 1. Appeal from Superior Court, King County; John E. Humphries, Judge. Action by the German-American Bank of Seattle against S. Normile, with counterclaim by defendant. Judgment for defendant on the counterclaim, and plaintiff appeals. Re versed and remanded. Edwin H. Flick, C. E. Hughes, and D. R. Hoppe, all of Seattle, for appellant. Gill, Hoyt & Frye, of Seattle, for respondent. MAIN, J. The purpose of this action was to recover upon a contract of bailment for hire. In the case here presented there are but two parties, the German-American Bank, a corporation, the plaintiff and appellant, and S. Normile, defendant and respondent. Originally there were other parties defendant, but, as these are not before the court, no reference will be made to them. The The By the complaint a balance was claimed to be due upon the bailment contract. defendant interposed a counterclaim. cause was tried to the court without a jury. Judgment was rendered upon the counterclaim in favor of the defendant in the sum of $117.32. The plaintiff appeals. The facts are substantially as follows: On July 27, 1912, one J. B. Keating, being then the owner of a certain grading outfit consisting of a steam shovel and a number of dump cars, a quantity of railroad trackage in place, and two engines, leased the same to S. Normile. The contract of leasing or bailment was oral, and provided that the bailee should pay as compensation therefor the sum of $50 per day. The value of the outfit was approximately $16,000. There was no mention in this contract as to which party (a) should pay the cost of putting the outfit in good condition, (b) should be responsible for the ordinary repairs incident to the use to which the outfit was to be put, or (c) should be chargeable with the extraordinary repairs which went to increase the value of the subject-matter of the bailment and inured to the benefit of the bailor. The outfit was used by the bailee for a period of 121 days. Payments for the use of the outfit were made from time to time. The a balance plaintiff claims that there was due in the sum of $1,851.71. The defendant claims that upon his counterclaim he is entitled to a credit of this sum on account of moneys expended for repairs, and in addition to this the sum of $117.32 as an overpayment. The rights of Keating under the contract had been assigned to the appellant. The trial court found that the grading outfit was not in good condition at the time the contract absence of an express term in the contract, was made. The plaintiff claims that, in the by custom the bailee is chargeable with all of the repairs. The defendant claims that by custom the bailor must meet the expenditures for repairs. The question in this case is whether the bailor or the bailee, in the absence of an express contract, must meet the expenses incident to putting the subject-matter of the bailment in good repair, and keeping up the repairs incidental to its use. This general question may be divided into three subordinate questions, as follows: First, upon which party should fall the duty of meeting the cost of putting the thing bailed in a reasonably good condition; second, should the bailor or the bailee be chargeable with the ordinary expenses incident to the use; and, third, which party should be liable for extraordinary repairs which are caused without For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 144 P.-19 the neglect or fault of the bailee and which support of the rule that at common law, in inure to the benefit of the bailor? the absence of an express contract, the bailUpon the general or subordinate questions or is responsible for extraordinary repairs there are few, if any, adjudicated cases which inure to his benefit and which were which are directly in point. A number of not caused through the neglect or fault of text-writers, however, have stated a rule. the bailee; and that the bailee should bear The writers of texts usually preface their the expenses ordinary and incidental to the statement as to the rule with the declaration | use of the thing bailed. This rule seems that the "common law upon this point is still unsettled," or make use of language of like import. In Edwards on Bailments, § 385, the author states the rule thus: to be founded in sense and reason. In the absence of an express term in the contract covering the question, whether the bailor or the bailee is bound to pay the ordinary expenses incident to keeping the article hired in a state of repair depends to a considerable extent upon the rate and nature of the recompense, custom, usage, and the character of the article. Cyc. vol. 5, p. 176; Schouler on Bailments & Carriers (3d Ed.) § 152. "The time for which chattels are hired, and the use to which they are to be applied, will generally indicate the understanding of the parties in respect to expenses and ordinary repairs. On this point the provisions of the Civil Code are quite specific and minute, while under the common law the liabilities of a bailee in this particular do not appear to be very accurately defined. When horses or other domestic animals are hired, for a journey, or for a length of time, the natural inference is that the hirer assumes the ordinary expenses of feeding and keeping them in good condition. A like inference can hardly be made under a hiring of inanimate chattels, so as to charge the hirer with the expenses of keeping them in repair. And it is quite well settled that the hirer of horses, cattle, or carriages is not liable for unusual and extraordinary expenses, that become necessary for the use or the preservation of the property; The trial court made no finding, as alas where a horse falls lame or sick on a jour-ready indicated, upon the subject of custom. ney, or where a carriage is broken down, or where a barge is sunken or crushed by the ice, without any fault on the part of the hirer." In 3 Am. & Eng. Encl. Law, p. 761, it is said: "For what expenses incurred by a bailee, about the thing bailed, the bailor is bound to reimburse him, depends upon the character of the bailment and the nature of the expense. * * A bailee for hire, where the use of the thing bailed is the essence of the contract, impliedly undertakes to keep the thing in repair, and must bear such expenses as are incident thereto, unless the necessity for them arises from some defect in the thing against which the bailor has expressly or impliedly warranted it. Extraordinary expenses are charges upon the bailor, and the bailee, it seems, may compel reimbursement for them." In the present case the trial court found that the grading outfit was not in good repair at the time of the leasing. It is contended that this finding is without substantial support in the evidence. Without discussing the evidence in detail, after reading the record, we are of the opinion that the trial court's finding upon this question should not be disturbed. The evidence sustains the contention of the respondent that it was customary for the bailor to put the grading outfit in good condition at the time of the leasing. This the appellant does not dispute. From this custom, in the absence of an express contract, it follows that the bailor was chargeable with that portion of the expense which was necessary to put the outfit in good condition. The plaintiff claims that it has proved that by custom the bailee is chargeable with the repairs. It is true that there is evidence in the record to the effect that the bailee must meet the expenses for repairs. Much of this evidence is general "that the lessee keeps up the repairs." There is some In Hale on Bailments & Carriers, p. 200, evidence that the bailee must pay only for the rule is stated thus: "The common-law doctrine upon this point is still unsettled. The express or presumed intention must govern; and, as bearing upon this point, the bailment purpose, and the rate and nature of the recompense, must be considered. It would seem a fair presumption that the parties intended the bailor to bear any unforeseen and extraordinary expense, which permanently enhances the value of the property, or wholly preserves it from loss, provided the expense was not necessitated by the bailee's fault. It seems equally reasonable that the bailee should bear the ordinary and incidental expenses of caring for the property. To substantially the same effect are also 7 Am. & Eng. Encl. Law (2d Ed.) p. 307; Central Trust Co. v. Wabash, etc., Ry. Co. (C. C.) 50 Fed. 857; Leach v. French, 69 Me. 389, 31 Am. Rep. 296; Sims & Smith v. Chance, 7 Tex. 561; 3 R. C. L. § 60, p. 137. The authorities, so far as they speak upon the ordinary repairs. We think this evidence not sufficient to impose upon the bailee liability for extraordinary repairs which are occasioned without his fault or neglect, and which inure to the benefit of the bailor and make the thing bailed more valuable to him when it is returned. The rate of the recompense provided by the contract, when taken into consideration with the subjectmatter of the bailment, is not sufficient to show an implied intention of the parties that the bailor should bear the expense incident to the use of the thing bailed. Under the rule stated, the bailee is chargeable with the expense for ordinary repairs. From the evidence in the record we are unable to determine what portion of the $1,851.71 claimed to be paid for repairs was expended, (a) in putting the outfit in good con |