City of Tacoma v. Welcker
| Decision Date | 18 February 1965 |
| Docket Number | No. 37149,37149 |
| Citation | 65 Wn.2d 677,399 P.2d 330 |
| Court | Washington Supreme Court |
| Parties | The CITY OF TACOMA, a municipal corporation, Petitioner, v. George WELCKER et al., Respondents. |
Marshall McCormick, City Atty., Paul J. Nolan, Irving J. Kelsey, Argal D. Oberquell, Tacoma, for petitioner.
Bell, Ingram & Smith, Lewis A. Bell, Everett, Commings & Harris, Theodore Cummings, Charles O. Carroll, Pros. Atty., William L. Paul, Jr., Seattle, for respondents.
The city of Tacoma, a municipality of the first class, situate in Pierce County, initiated this action in eminent domain seeking to acquire fee simple title to some 1,450 acres of land contiguous to the Green River in King County. The asserted purpose of the proposed acquisition is to protect the municipality's domestic and industrial water supply from pollution. The trial court refused to enter an order of public use and necessity and dismissed the city's petition with prejudice. The city was granted a writ of certiorari to review the trial court's action.
Since 1913, when the city of Tacoma acquired the right to divert water from the Green River, the Green River watershed has become the city's principal source of domestic water. Through the years the city has invested approximately $15,000.000 in developing the facilities by which water is divreted from the river and transported, by means of a gravity pipe line, into a storage reservoir and thence into the distribution lines serving consumers residing in the city and portions of southern King County. The capacity of the present facilities is some 73,000.000 gallons of water per day, and, at the time of the hearing before the trial court, the system was serving approximately 250,000 domestic and industrial users.
The Green River watershed comprises a remote and practically uninhabited area in the Cascade Range of approximately 148,000 acres, all of which is situated in King County. Except for some logging operations, the construction and maintenance of the Howard Hanson Dam, the erection of electrical transmission lines, the traversion of a railroad, and the existence of the railroad community of Lester, there has been and is very little human activity carried on within the watershed area. In fact, the permanent population of the area has steadily declined from some 650 people in 1930, [399 P.2d 333] to 197 in 1960. Estimates of a future increase in permanent population are pessimistic. At the time of the trial, the watershed area was zoned as 'residential-agricultural'; however, the director of the King County Planning Commission testified that a more fitting classification would be that of 'forest recreation.'
The bulk of the acreage within the watershed is owned by governmental agencies, the Northern Pacific Railroad Company, and timber, veneer, and pulp companies. Agreements dealing with minimization of water contamination have been negotiated between the city and such owners. The remaining acreage is owned, generally in smaller parcels, by individuals, most of whom are parties to this suit with whom the city has no agreements relating to pollution control.
The natural purity of the raw water derived from the watershed has heretofore and at the present time enabled the city of Tacoma to provide palatable water, suitable and safe for human consumption, by the relatively inexpensive process of chlorination. Recourse to filtration systems required in other parts of the country has not been necessary. The estimated cost of installing such a system, which would be capable of meeting present and prospective water requirements, is approximately $5,000,000 with an annual maintenance expense of $500,000.
By this action, the city of Tacoma seeks to acquire parcels from the watershed area lying largely within one-half mile of the Green River, and upstream from the city's water diversion point. These particular parcels are disconnected and disparately located along the banks of the river. The city officials testified that this suit is one of a series of actions, designed to implement a plan, which will ultimately give the city ownership and control over a 'buffer strip' and 'surface filter blanket' one-half mile in depth on each side of the river, thus providing protection against pllution of the waters and minimizing the necessity of installing a filtration plant. The city has heretofore, by purchase and condemnation, acquired other like parcels along the river and in the area of the impoundment reservoir behind the Howard Hanson Dam, and is prosecuting a companion action to this against Weyerhaeuser Timber Company whereby similar river bank acreage would be acquired.
The instant action was initiated pursuant to Tacoma City Ordinance No. 17194, passed by the city council on October 23, 1962, based upon a resolution of the city's public utility board declaring, in substance, a necessity for acquisition of the properties here involved for the continuing protection of the water supply from pollution.
The city predicates its right to proceed by condemnation upon the provisions of RCW 8.12.030 and 35.92.010, the pertinent portions of which are as follows 'Every city and town * * * is hereby authorized and empowered * * * to condemn land or property, or to damage the same, either within or without the limits of such city * * * for aqueducts, reservoirs, pumping stations and other structures for conveying into and through such city a supply of fresh water, and For the purpose of protecting such supply of fresh water from pollution, and to condemn land and other property and damage the same for such and for any other public use after just compensation having been first made or paid into court for the owner in the manner prescribed by this chapter.' (Italics ours.) RCW 8.12.030.
'A city or town may construct, condemn and purchase, purchase, acquire, add to, maintain and operate waterworks, within or without its limits, for the purpose of furnishing the city and its inhabitants, and any other persons, with an ample supply of water for all purposes, public and private * * *
(Italics ours.) RCW 35.92.010.
At the hearing upon the city's petition for an order adjudicating public use and necessity, the city introduced evidence the gist of which was that (1) a close relationship exists between human presence and activity in the watershed area and the bacteriological quality of the water diverted into the city's water system; (2) improved access roads, recreational attraction of the Howard Hanson Dam reservoir, and expanding land development programs portend increasing human activity within the watershed area; and (3) the 'buffer-strip' plan is a minimal pollution control and preventative measure, and constitutes a reasonable alternative to (a) future installation of a filtration system or (b) acquisition of the entire watershed area. The city did not, before the trial court or before this court on appeal, contend that at the present time there is an excessive amount of human activity or resultant pollution in the area. Its position is that the acquisitions sought constitute a necessary and reasonable hedge against the future.
On the other hand, respondents in opposition to the city's petition introduced evidence to the effect that (1) the parties to this action are not now utilizing their lands in such a manner as to constitute a threat of water pollution; (2) since 1913, despite spasmodic increases in human activity within the watershed area, the city's chlorination process has provided effective protection; (3) continued enforcement of existing pollution laws and regulations will provide satisfactory protection now and in the foreseeable future; (4) the chief threat of pollution arises from the existence of the railroad line, the community of Lester, and logging activities in the watershed area; and (5) the one-half mile 'buffer-strip' concept is, under the circumstances, unfeasible and does not constitute a reasonable alternative to acquisition of the entire watershed area, including the railroad, or to installation of a filtration system.
In dismissing the city's petition, the trial court, in essence, found that there was neither presently nor in the foreseeable future any condition of pollution arising from the use of the particular lands sought to be acquired in this action, and concluded therefrom that the city's action in seeking to condemn such lands was arbitrary, capricious, mistaken, and constructively fraudulent.
Before proceeding into a consideration of the arguments advanced for and against the trial court's action, we deem it appropriate to set forth certain guiding principles.
(1) The power of eminent domain is an attribute of sovereignty. It is an inherent power of the state, not derived from, but limited by, the...
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