Boyer v. State, 28994.
| Decision Date | 07 October 1943 |
| Docket Number | 28994. |
| Citation | 19 Wn.2d 134,142 P.2d 250 |
| Parties | BOYER et ux. v. STATE et al. |
| Court | Washington Supreme Court |
Action by John E. Boyer and Louise M. Boyer, husband and wife against the State of Washington and others, to recover value of improvements made by plaintiffs on parcels of tidelands leased to plaintiffs by State and for other relief. From a judgment dismissing the action, plaintiffs appeal.
Reversed and remanded with directions.
Appeal from Superior Court, Thurston County; John M. Wilson, judge.
Evert Arnold, Roy D. Robinson, and W. S. Greathouse, all of Seattle, for appellants.
Smith Troy and George Downer, both of Olympia, for respondents.
Plaintiffs brought suit against the state of Washington to recover the value of certain improvements made by them on parcels of tidelands leased to them by the state and, in addition, to recover the amount of annual rentals and taxes paid by them during the term of their lease. The cause was tried to the court without a jury. In a memorandum opinion, rendered after the trial, the court concluded that the plaintiffs had mistaken their remedy, and for that reason alone the court directed that the action be dismissed. Plaintiffs' motion for new trial was later denied, and thereafter findings of fact, conclusions of law, and judgment dismissing the action were entered. Plaintiffs appealed.
The facts are undisputed. On October 4, 1902, the state of Washington, through its land commissioner at that time, executed to one F. D. Black a series of leases covering certain tide lands fronting the city of Ballard, now a part of Seattle, for a term of thirty years. The total annual rental, payable in advance, was fixed at two hundred fifty-two dollars. The leases each contained, among other provisions, the following:
At the time that these leases were given, there had been no development of tide lands in that vicinity. The lands were far removed from any populous center and had no direct connection with any business district. In fact, there was no highway adjoining them until sometime in 1936 or 1937, which was after the controversy herein arose.
On August 31, 1912, appellant John E. Boyer, who will hereinafter be referred to as though he were the sole appellant, purchased Black's leasehold interests for the sum of $12,000 and, with the written approval of the land commissioner, took assignments of Black's several leases.
In 1925, appellant, by contract had with Puget Sound Bridge & Dredging Company, constructed a bulkhead and made a fill of sand and gravel upon these tide lands to the extent of 198,000 cubic yards. The reasonable price of this improvement work was, according to the evidence, approximately twenty-five or thirty cents a cubic yard.
On April 1, 1927, the land commissioner filed a replat of 'Ballard Tide Lands,' including therein the lands involved in this action, and established in the replat certain waterways adjacent to appellant's lands. Thereafter, on April 4, 1927, the land commissioner issued to appellant a lease in lieu of the former leases referred to above. The lieu lease was for a term of thirty years beginning, retroactively, October 4, 1902, and its provisions were in all respects the same as those contained in the original series of leases, except that some additional land was included in the lieu lease and the annual rental was increased to $320.75.
At its 1929 session, the legislature passed an act, chapter 177, Laws of 1929, p. 439, which concededly has given rise to the difficulties culminating in this lawsuit. Section 1 of that act authorized the land commissioner to vacate certain waterways in the replat of Ballard tide lands, and directed him to certify to the governor, for deed to the city of Seattle, a designated list of tide lands, including all of those involved in this action, together with the vacated waterways, excepting from such directed certification, however, any lands that were then under lease, until the expiration of such lease. Section 2 of the act authorized and directed the governor and secretary of state, respectively, to execute and attest a deed conveying all such tide lands to the city of Seattle. Section 3 of the act provided: 'All of the tide lands described in section 1 of this act are hereby granted to said city of Seattle to be used for public park, boulevard, ferry landings and temporary waiting basin for shipping entering the government canal, and for no other purposes; * * *.'
Immediately after the effective date of that act, the land commissioner vacated the waterways, and a deed as directed was subsequently executed conveying to the city of Seattle all the lands specified in the legislative act, except those lands which had been leased to the appellant. No deed covering the excepted portion has ever been delivered, executed, or prepared. Apparently the legislative mandate has not been fulfilled in the latter respect because of appellant's existing leasehold and the subsequent claim made by him as hereinafter related.
Appellant's lease expired on October 4, 1932, three years after the passage of the 1929 act. Throughout the terms of both the original leases and the lieu lease, appellant and his predecessor Black meticulously performed all obligations imposed upon them, including payment to the state of Washington of annual rentals totalling $7,918.13 and payment of taxes amounting to $2,935.86. Due to the fact that the lands have never been commercially developed, appellant has never received any income therefrom.
At the expiration of his lease in 1932, appellant, having the preference right to re-lease these tide lands, made application to the land commissioner for such re-lease. The commissioner declined, however, to act upon the application, giving as his reason that 'their hands were tied by this act of the legislature.' Failing in his repeated attempts to secure a re-lease of the tide lands, appellant made claim to the commissioner for compensation for the improvements which he had brought to the lands by way of bulkheading and filling them.
During the interim between October, 1932, and some time in 1935, appellant and the land commissioner had many conferences and negotiations looking to a possible settlement of the controversy, but these produced no immediate solution. Finally, a proposal was made, at whose instance the record does not clearly disclose, that an appraisal of the value of the improvements be obtained and if the report of the appraiser should be satisfactory to all concerned, a recommendation for settlement would be submitted to the legislature at its next regular session. The land commissioner suggested the name of a suitable appraiser, and his services were immediately procured by the appellant himself.
In this connection, we may say that we accept the trial court's finding that this appraisement was not conducted under the auspices of the land commissioner, as is contemplated in the ordinary case of appraisement required by the statute in matters affecting public lands.
Nevertheless, an appraisal was made, which showed a proportionate value of $10,800 for the actual improvement to the lands resulting from the fill constructed by the appellant. This appraisement did not take into consideration, however, certain other elements which it was thought had a beneficial effect upon the lands, but as to those elements there was some legal question which the appraiser did not consider himself qualified to determine.
Upon receipt of the appraiser's report, further conferences were held between appellant and the land commissioner, in consequence of which a bill was introduced at the 1935 session of the legislature seeking an appropriation of $25,000 for the relief of appellant, as compensation for the improvements made by him. As stated in the bill, no provision for such compensation had been set up in chapter 177, Laws of 1929, which directed conveyance of the lands to the city of Seattle. The bill was introduced in the House of Representatives on March 4, 1935, but had not been acted upon at the time of the legislative adjournment on March 13th.
Appellant, thereafter, again took up the matter with the land commissioner, endeavoring to procure a settlement. The commissioner, however, stood upon his then recently declared position that appellant had nothing coming to him from the state, and that if appellant had been damaged at all he should seek recovery from the city of Seattle, which was the named beneficiary under the 1929 act mentioned above. Being unable to secure any further consideration of his claim, appellant instituted this action.
Respondents do not now contend that appellant is not entitled to any compensation at all for the value of the...
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§17.6 - Repairs and Improvements
...tidelands (and arguably other state lands) may recover the value of its improvements at the end of the term. See Boyer v. State, 19 Wn.2d 134, 142 P.2d 250 (1943). Of course, a landlord may agree to pay for improvements. See McFerran v. Heroux, 44 Wn.2d 631, 269 P.2d 815 (1954) (option). If......
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Table of Cases
...Wash. 540, 195 P. 1011 (1921): 17.11(1)(b), 17.12(2) Boyer v. Paine, 60 Wash. 56, 110 P. 682 (1910): 20.4(6)(b), 20.5(2) Boyer v. State, 19 Wn.2d 134, 142 P.2d 250 (1943): 17.7(4)(a) Brace & Hergert Mill Co. v. State, 49 Wash. 326, 95 P. 278 (1908): 13.6(4) Brady v. Ford, 184 Wash. 467, 52 ......
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§ 12.2 - Lands Managed by the Department of Natural Resources
...property, which DNR then may lease to another for additional revenue. RCW 79.125.300(3). This provision is discussed in Boyer v. State, 19 Wn.2d 134, 142 P.2d 250 (1943), and Pier 67, Inc. v. King County, 71 Wn.2d 92, 426 P.2d 610 (1967). There is no right of compensation for improvements i......
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Table of Cases
...19.4(1) Bowing v. Bd. of Trustees of Green River Cmty. Coll. Dist. No. X, 85 Wn.2d 300, 534 P.2d 1365 (1975): 16.3(12) Boyer v. State, 19 Wn.2d 134, 142 P .2d 250 (1943): 12.2(5)(d)(vii) Brace & Hergert Mill Co. v. State, 49 Wash. 326, 95 P. 278 (1908): 12.2(5)(c)(i), 12.2(5)(c)(i) Bradley ......