Chelan Elec. Co. v. Perry

• Decision Date: 09 July 1928
• Docket Number: 21102.
• Citation: 268 P. 1040,148 Wash. 353
• Parties: CHELAN ELECTRIC CO. v. PERRY et al.
• Court: Washington Supreme Court

268 P. 1040

148 Wash. 353

CHELAN ELECTRIC CO. v. PERRY et al.

No. 21102.

Supreme Court of Washington

July 9, 1928

Department 2.

Appeal from Superior Court, Chelan County; W. O. Parr, Judge.

Petition by the Chelan Electric Company to condemn a private commercial dock, opposed by Crooker Perry and others. From a judgment for damages, they appeal. Affirmed.

O. P Barrows and John W. Hanna, both of Wenatchee, for appellants.

Post &amp Russell, of Spokane, and Charles S. Albert, Edwin C Matthias, and A. J. Clynch, all of Seattle, for respondent.

ASKREN J.

Respondent Chelan Electric Company, is a corporation engaged in converting water power into electric energy for public use. State ex rel. Chelan Electric Co. v. Superior Court, Chelan County, 142 Wash. 270, 253 P. 115. State ex rel. Perry v. Superior Court,

145 Wash. 178, 259 P. 382. Respondent, in conformity therewith, proceeded to condemn appellant's property, and the jury upon the trial returned a verdict for appellants in the sum of $950, and judgment was entered for that amount. This appeal followed.

While the notice of appeal apparently is drawn in such a way as to include within its scope all proceedings in connection with the exercise of the power of eminent domain which has resulted in the present judgment, and argument is made in the briefs on many matters involved herein, our decisions make it plain that, under the controlling statute, Rem. Comp. Stats. § 931, the only question open for consideration here at this time is 'the propriety and justness of the amount of damages' contained in the judgment, and that the word 'propriety' does not have reference to the right of appropriation, but refers to the amount of damages. State ex rel. Grays Harbor Logging Co. v. Superior Court, 100 Wash. 485, 171 P. 238.

The question of the right of respondent to appropriate the property, the public use, and necessity has been set at rest by our former decision. State ex rel. Perry v. Superior Court, supra. The final decree of appropriation cannot be questioned by appeal, but must be raised by certiorari. C. M. & P. S. R. Co. v. Slosser, 82 Wash. 467, 144 P. 706.

Error is urged by appellant in permitting evidence with reference to the exact nature of their rights in the property in question. The respondent had acquired, at the hearing of public use and necessity, the right to condemn appellants' property, which, after describing the buildings, included a provision for 'a way of ingress and egress therefrom.' Upon the trial of this action, wherein the amount of damages was to be computed, it appeared that part of the dock in question was upon shore lands, and the balance of it rested upon lands below the low-water mark, or on land belonging to the state government. When the lake is raised to its intended level, the waters will spread until there will be a distance of 375 feet from its then shore line to the present shore entrance to the dock. The lands covered by this 375 feet of water were acquired by the respondent prior to the trial.

Appellants contend that the order of necessity established their particular rights, and that respondent could not in this case show just what they were. But we think appellants misconstrue the nature of the public use and necessity proceeding. That proceeding is not instituted to determine the nature of the rights of those whose property is to be appropriated, but to establish whether the appropriator seeks to take for a public use, and there is a necessity for the taking of the property of others, no matter what the nature of those rights may be. We decided this point in Walla Walla v. Dement Bros. Co., 67 Wash. 186, 121 P. 63, saying:

'A party seeking to condemn property, as against a defendant, is not bound to admit the nature or extent of the title of the defendant in such property; but may at the trial prove the nature and extent of such title or interest.'

The record in this case discloses that appellant owned no title in any real property, and that such ingress and egress as they had was from the street in front of the dock and across the dock itself, as one end of the dock abutted on the street and the other on government land. Appellants' ownership rested on the use of the buildings in question and the following writing:

'This will certify that any and all rights that the Lake Chelan Transportation Company or E. E. Shotwell have to the dock and warehouse which they have been in possession of and have been using for transportation purposes and for all uses appertaining to the business of transportation and dockage of their boats and vessels for a number of years past are hereby transferred to Mr. Crooker Perry of Lakeside, Wash.'

There was no error, therefore, in permitting respondent to show that it had acquired the right from the state and the Federal government to overflow the lands in question, to raise the level of the lake, and the ownership of the land upon which that...