(dissenting)—The legislature of the state of Washington, at its 1909 session, passed an act relating to filling lands by cities of the second and third classes. Laws 1909, p. 569, ch. 147 (Rem. & Bal. Code, § 7971 et seq.). Section 1 of the act provides that whenever the city council of any such city shall deem it necessary or expedient on account of the public health, sanitation, the general welfare, or other cause, to fill or raise the grades or elevation of any marsh lands, swamp lands, tide lands, or lands commonly known as tide flats, or any other low lands situated within the limits of such city, and to clear and prepare said lands for such filling, such city council shall have power to do so, and to tax the cost thereof to the property benefited. Section 3 provides that, “The filling of unimproved and uncultivated low lands of the character mentioned in section 1 of this act, shall not be considered as damaging or taking of such lands.” Section 4 provides for preparing plans and specifications of the improvement and for an estimate of the cost and expense thereof, in which shall be included “the cost of supervision and engineering, abstracter’s fees, interest, and discounts and all other expenses incidental to said improvement.” Section 5 provides for the making of an assessment roll, • and further provides that the “entire amount of compensation . . . including all of the costs and expenses incidental to the condemnation proceedings, . . . with the entire cost and expense of making the im-' provement, may be assessed against the property within the district subject to assessment,” and that “the several parcels of land located within said improvement district to be assessed for such improvement shall be assessed according to, and in proportion to, surface area, one square foot of sur*551face to be the unit of assessment.” Further sections provide for condemning the improvements upon such property, and others relate to the procedure, the act containing elaborate provisions for carrying into effect the declared purposes.
Within the corporated limits of the city of Aberdeen and lying immediately west of its principal business section, is a large area of level land that was formerly marsh land, so situated that it is subject to the ebb and flow of the tide. In its natural state it was penetrated by sloughs, which admitted the tides and served as drains for seepage and surface waters. The surface of the land, while above the normal, was below the extreme tides, and would be covered entirely with water when these occurred. This caused no ill effects to the public health, however, as the drainage was complete and effectual. But with the advent of population came highways and railroads. These were constructed down the bank of the river across the mouths of the sloughs, partially damming them up, and while they have a tendency to cut off the inflow of the tides, they also cut off the outflow of the seepage and surface waters, thus causing the waters to accumulate in stagnant pools, menacing the health of the community. The tract in question is of considerable area, being triangular in shape, having a base of some 4,000 feet with an altitude of perhaps 3,200 feet. It was long since platted into lots, blocks, streets, and alleys as a part of the city of Aberdeen. The streets have been dedicated to public use, and the city early established grade lines over them. The lots number about one thousand, and are divided among a number of owners who hold in severalty; they range in value from $750 to $5,000, owing to location. A few business houses and a number of dwellings with their accompanying outhouses have been erected on lots within the district, but in the main they remain unimproved.
In the early summer of 1908, the city council conceived the idea of improving the above described district. To that end, on June 23, 1909, it passed an ordinance establishing *552new grades over the entire tract, making them higher than the earlier established grades. On September 15, 1909, it adopted a resolution declaring it to be the intention of the city council to “clear, grub and fill up to the established grade ... all of the lots, lands and parcels of lands, . . . and all of the streets, alleys and public places, on that portion of the townsite,” of the city of Aberdeen above described, reciting that it appeared to the city council that it was to the best interests of public health, sanitation and general welfare of the inhabitants of the city of Aberdeen so to do; reciting further than it was necessary to condemn certain private property in order to make the improvement, but that the cost thereof, including the costs of making the improvement with incidental costs, would not exceed $330,000. On November 17, 1909, the city council passed an ordinance directing the improvement to be made. In the ordinance it directed the city attorney to bring all necessary suits to ascertain the amount of damages to be awarded for property taken or damaged by reason of making the improvement; it directed that the total cost and expense of making the improvement, “including the cost of making compensation for property taken or damaged, and including the cost of supervision, engineering, abstract fees, interest and discounts, and all other expenses incidental thereto, not exceeding the estimated cost, three hundred and thirty thousand dollars ($330,000) ... be taxed and assessed against all of the lots, lands and parcels of land included in such tract, and that the several parcels of land . . . be assessed according to and in proportion to surface area, one square foot of surface to be the unit of assessment.” Immediate payment for the work is provided for by the issuance of bonds, which in turn will be taken up when the assessments are paid. After the passage of the ordinance, the city brought condemnation proceedings against certain property holders who had improvements on their lots which it was conceived would be damaged by the fill, but no pro*553ceedings were instituted against persons owning unimproved lots in the district. This action was thereupon begun by the appellant to enjoin the prosecution of the work. In his complaint he alleged that he was the owner of unimproved property in the district sought to be improved; that his property would be greatly and irreparably injured and damaged by the proposed fill, and that such damages had not been first ascertained and paid to him. He then alleged that the ordinance, and the laws under which-the ordinance was passed, were unconstitutional and void for various reasons, among which were that it sought to take his property without compensation and without due process of law.
To the complaint the city answered, expressly admitting that the complainant’s property would be irreparably injured by the fill, but alleged that the tract sought to be filled was fast becoming unsanitary and a menace to the public health, and that the necessity for the work was imperative because of this fact; further answering, the defendants alleged that it is not the “intention of the city of Aberdeen to at any time condemn or appropriate the right to raise the said grade and fill the said streets and the said private property as aforesaid; that because of the matters and things hereinbefore set out the condition of the district is such that the city of Aberdeen has a lawful right to raise the said grade and fill said streets, alleys and private property without the payment at any time of any damage, . . . and that the city intends to and will make such fill in the manner set out herein, and in the complaint”; that is, at the cost of the private property-therein according to area, without reference to benefits or injuries, or any consideration of relative values.
On the issues made a trial was had in which evidence was introduced on the part of the city tending to show that the tract in question was unsanitary, and that it was necessary to make the fill proposed to render it healthful, and, indeed, it may be conceded that such was the distinct weight of the *554evidence. The trial judge concluded therefrom that the plaintiff was without cause of complaint, and entered a judgment dismissing his action with prejudice to his right to further litigate the questions involved. This is the judgment from which the present appeal is taken, and the judgment this court affirms in the foregoing opinion.
The judgment is affirmed on the ground, as I understand it, that the acts of the city, both committed and contemplated, are but a legitimate exercise of its police powers, and therefore invade no lawful right of the appellant. With this doctrine I am unable to agree. I have no doubt that when the owner of private real property suffers it to become a menace to the public health, either through the accumulation of stagnant water thereon or other causes, the municipality can, under its police powers, interfere and correct the evil even to the extent of destroying the property if the necessi-> ties of the case require it to go to that extent; and that it can, furthermore, if the nuisance is one created by the property owner, abate it at his expense. But this, as I understand the rule, is the beginning and the end of the police power over private property. The state cannot lawfully, under the guise of abating a nuisance, compel an owner to make his property conform to some previously conceived scheme of public improvement; it cannot compel him at his own expense, or at the expense of his property, to abate a nuisance on his own land created by another than himself; nor can it compel him to abate a nuisance in the public streets, or subject his property to the expense of abating it, beyond the benefit the removal of the nuisance confers upon it.
All these principles have been violated in the case before us. Nowhere is it pretended that it is necessary, for the purpose merely of abating the nuisance existing upon the appellant’s property, to raise it up to the grade the city has adopted as its scheme of street improvement. No doubt that it will conduce to the public welfare to grade the street *555to that extent, but it is clear that this goes far beyond the necessities of the case, if abatement of the nuisance is the ultimate purpose. Not only did the city raise the grades of the streets above those formerly existing, but the very resolution by which the proceedings were initiated calls it an “improvement,” and to carry out the work it is proposed to “clear and grub” the lots preparatory to filling them—a proceeding wholly unnecessary if the mere abatement of a nuisance is the purpose of the city. That the city in the abatement of a nuisance is limited in its procedure to the removal of the cause of the nuisance is maintained by all authority. In 29 Cyc. 1218, the rule is stated as follows:
“A public nuisance may be summarily . abated by the public authorities, but this power must be reasonably exercised, without doing unnecessary damage or injury to property, and is limited to a removal of that in which the nuisance consists.”
So in Eckhardt v. Buffalo, 19 App. Div. 1, 46 N. Y. Supp. 204, it was held that the officers of the municipality exceeded their authority and rendered themselves personally liable, where, under the guise of abating a nuisance, they caused a new structure to be erected at great expense to the owner when the result sought to be accomplished could have been obtained by repairing and cleansing the old structure at a very moderate cost. In the course of the opinion this language was used:
“In Matter of Jacobs (98 N. Y. 98) it was held that while the legislature may determine that laws are required to protect and secure the public health, comfort and safety, it may not, under the guise of police regulations, arbitrarily infringe upon personal or property rights; and its determination as to what is a proper exercise of the power is not final or conclusive, but is subject to the scrutiny of the courts. With more persuasive force it may be said that no sanitary board or officer can be permitted, under the guise of a power to abate nuisances detrimental to health, not only to remove or abate the nuisance in so far as the public health and welfare may be endangered by its existence, but *556also to proceed in a summary manner and cause new erections to be made and new appliances, contrivances and conveniences to be used and adopted, at a large expense to the owner, and far beyond what the exigencies of the particular case may require.”
That an owner of land cannot be compelled to abate, at his own expense, a nuisance thereon caused by the municipality itself, or by some third person without the owner’s connivance or consent, is also in accord with the great weight of authority. In the case of Hannibal v. Richards, 82 Mo. 330, the city constructed an embankment in the street in front of defendant’s lots, which occasioned the water' to accumulate on them and injuriously affect the health of the city. The defendant having refused to comply with an ordinance requiring him to fill the lots, the work was done by the city, and it brought an action to recover the cost and expense thereof. The court say:
“Now, we are asked to hold, also, that the city may create a nuisance upon the lot of an individual and then have it abated at his expense, if he refuse to do it when ordered. As well at once declare that no one can acquire any rights to town or city lots which the municipal corporation is bound to respect. The city cannot create a nuisance upon the property of a citizen and compel him to abate it. Weeks v. City of Milwaukee, 10 Wis. 269. The cost of filling the lots was the extent of defendant’s liability, if any existed, and we see no reason why defendant should not have been permitted to show that it was less than plaintiff claimed. There is no law declaring municipal corporations infallible or that their demands are incontestable. The charter authorizing the city to fill a lot, on default made by the owner, gives her a demand against him for the cost of filling it, if done by the city, and the averment of the amount and cost of the work is one upon which an issue may be made. At a trifling expense at the time plaintiff passed the ordinance requiring these lots to be filled the pond could have been drained and but for the neglect of the plaintiff to make such drain the nuisance complained of would never have existed.”
In Weeks v. Milwaukee, 10 Wis.* 242, 269, the defendant *557city graded an alley adj oining, and made a fill in the street in front of plaintiff’s lots, causing the water to flow and remain stagnant thereon, and a special tax of $498.75 was levied upon the lots by the city, $111.25 of which was to pay for the grading, and $387.50 for abating the nuisance created by the city as aforesaid. Plaintiff instituted an action to restrain the collection of the special assessment, and the trial court held the nuisance tax illegal. This view was sustained by the supreme court on a review of the case, Paine, J., delivering the opinion of the court, saying:
“I am also of the opinion that the tax assessed against the plaintiff’s lots to abate a nuisance, which, it appears, was created entirely by the act of the city, in so constructing a street , as to cause the water to flow and remain upon the lots, which it would not otherwise have done, is illegal. I cannot recognize the right of a corporation to create a nuisance on the lot of an individual. But to create the nuisance, and then tax him to abate it, is a double wrong. I shall not attempt any examination of the question upon authority, but I am satisfied such a right cannot be sustained. I think this conclusion results from the reasoning of Mr. Justice Smith in Goodall v. Milwaukee, 5 Wis. 32, which I fully approve. And until I am prepared to say that private rights must yield, even to the extent of total destruction, rather than place any impediment in the way of whatever proceedings corporations may see fit to take, I cannot say that a city may create a nuisance on the lot of a citizen without making him any compensation for the damage, and then tax him to abate it.”
In Lasbury v. McCague, 56 Neb. 220, 76 Pac. 862, it appeared that the city of Omaha in grading a street dammed the outlet of a stream, preventing the water from escaping, and causing it to back up on land owned by one Baer, where it stagnated and became a nuisance. The city passed an ordinance directing the lot to. be filled with earth, and levied the cost thereof on the lot. In a suit to declare invalid the assessment the court said:
“It requires no argument to show that whatever nuisance existed on the lot in dispute by the reason of the accumula*558tion of stagnant water was directly chargeable to the city of Omaha. The foregoing quotation from the written stipulation of facts makes it perfectly plain that the nuisance abated by the city was created by its agents. This being so, to permit the city to assess the costs 'and expenses of abating the nuisance it created against plaintiff’s lot would, indeed, be a reproach upon the law. If this special tax can be upheld in an equitable proceeding, then, by a parity of reasoning, one who creates a nuisance upon the land of his neighbor may have it abated at the expense of the latter and a court of equity could not afford relief. The mere statement of the proposition shows its absurdity.”
That the nuisance sought to be abated in the present case was not caused by the appellant cannot be gainsaid. As long as the tides of the sea were permitted to ebb and flow over it, as they were wont to do in a state of nature, the land was wholesome. It became to the contrary only when the embankments by the railroads and by the public for highways were constructed which cut off this flow. These were not of the appellant’s construction, and to charge him with the abatement of a nuisance caused thereby violates every principle of justice.
I have found no adjudicated case where a municipality has attempted, under its police powers, to abate a nuisance in the public streets at the expense of the abutting and adjoining property, where the owners of the property were not the creators of the nuisance. Heretofore it has been supposed that this required the exercise of the powers of eminent domain, proceedings in which the property holder had a right to be heard on the question of the cost of the proceeding and the amount it was proposed to tax against his property. In this proceeding the appellant has been denied this right. He at no time had, or has had, an opportunity to question either the necessity of the work, the amount it is proposed to pay for it, or the proportionate share thereof it is proposed to assess upon his property. This is taking his property for a public use without compensation and without due process of law. But this particular case has peculiar hardships. It *559will be remembered that the appellant alleged in his complaint that his property would be irreparably damaged by the fill the city proposed to make, and that this allegation was expressly admitted in the answer of the city; not by mere silence or failure to deny the allegation, but in express words. It will be remembered also that certain lots in the district have buildings upon them recognized as improvements and which the city has condemned and paid for; that the lots sought to be filled are unequal in value, and unequal in respect that some of them require more material to fill them than will be required to fill the appellant’s lot, and also that some of the lots will be materially benefited by the fill, yet it is proposed to pay the cost of the work by an assessment upon the lots within the district according to area. In other words, the appellant’s lot, which is irreparably damaged by the fill, is taxed to pay not only for the fill itself, but to pay damages assessed to other lots which may be materially benefited by the fill. Aside from the fact that this seems directly contrary to the first section of the act under winch the city is proceeding, I can find no authority that justifies it, even where the principle is seemingly favored by the legislature.
The drainage cases are cited by the majority as maintaining this doctrine, but I cannot think them in point. None of them lay down the rule that property in the district proposed to be drained can be taxed indiscriminately to pay the cost of the work regardless of the question of the originator of the nuisance, or whether thé property proposed to be assessed is benefited or damaged by the work. On the contrary, the assessment is sustained on one or both of two theories, either that the owner of the land was responsible for the nuisance and under obligations to remove it, or its removal distinctly benefited his property. I have referred to some of the cases where the first question was involved, examples of the second can be found in the main opinion. Take for instance the case of Hagar v. Reclamation District, *560111 U. S. 701. There the tax was upheld on the express ground that it was levied on property benefited, as witness the following extract from the opinion of the court:
“In some states the reclamation is made by building levees on the banks of streams which are subject to overflow; in other states by ditches to carry off the surplus water. Levees or embankments are necessary to protect lands on the lower Mississippi against annual inundations. The expense of such works may be charged against parties specially benefited, and.be made a lien upon their property. All that is required in such cases is that the charges shall be apportioned in some just and reasonable mode, according to the benefit received.”
To the same effect is Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112. And so Cooley in his work on taxation, at the place cited by the majority, says that the “special benefits from the enhancement of values must accrue mainly to the owners of the lands drained, who ought therefore to bear the expense,” clearly indicating that the basis of the right to assess in such cases was the fact that the work conferred a benefit. But it is needless to pursue the inquiry. As I say, I can find no case where private property damaged by a fill is taxed not only to make the fill causing the damage, but to fill other property both public and private, some of which is actually benefited by the fill.
I regret also that the majority have seen fit to declare that a front foot or area assessment, whether in proportion to or in excess of benefits conferred on the property by the improvement, violates no constitutional inhibition. In Austin v. Seattle, 2 Wash. 667, 27 Pac. 557, it was held, it is true, that such an assessment did not violate the provisions of the constitution relating to equality and uniformity in taxation, but the principle of that case, as I understand it, has been repudiated by a long line of cases decided by us since that time. In McNamee v. Tacoma, 24 Wash. 591, 64 Pac. 791, an assessment for a street improvement was attacked on the ground that it was made on a front foot *561basis and not in accordance with benefits. In its opinion the court conceded that the true rule was that an “assessment must be tested by benefits, and that the exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use without compensation” ; holding, however, that the statute under which the assessment was made did require an assessment according to benefits, and not a front foot assessment. To the same effect are the following cases: Annie Wright Seminary v. Tacoma, 23 Wash. 109, 62 Pac. 444; Alexander v. Tacoma, 35 Wash. 366, 77 Pac. 686; New Whatcom v. Bellingham Bay Imp. Co., 16 Wash. 131, 47 Pac. 236.
This, to my mind, is the only rule that can logically stand the constitutional test; for any rule that taxes property in excess of benefits that is not applied to all property alike takes such property for public use without compensation.
It is finally suggested in the opinion that the relator may find relief in a hearing upon the assessment roll. But in the face of the statute declaring that his property, being unimproved, shall not be considered damaged by the fill, the positive declaration of the city in its answer to his complaint that it “has a lawful right to ... fill private property without the payment of damage,” and intends to exercise that right, and the announcement earlier in the opinion of the majority that the city will not exceed its powers in so doing, I am afraid the appellant’s chances of remuneration from this final test are not of the best. But the argument is not sound for another reason, it overlooks the constitutional requirement that damages to property taken for a public use must be ascertained and paid into court for the owner before his property is taken.
The judgment appealed from should be reversed.