City of Tacoma v. State

• Decision Date: 07 October 1922
• Docket Number: 17196.
• Citation: 209 P. 700,121 Wash. 448
• Parties: CITY OF TACOMA v. STATE.
• Court: Washington Supreme Court

209 P. 700

121 Wash. 448

CITY OF TACOMA v. STATE.

No. 17196.

Supreme Court of Washington

October 7, 1922

Department 1.

Appeal from Superior Court, Mason County; D. F. Wright, Judge.

Proceeding in condemnation by the City of Tacoma against the State. From judgment dismissing the petition, plaintiff appeals. Reversed and remanded.

J. Chas. Dennis and Percy P. Brush, both of Tacoma, and Robert H. Evans and Peters & Powell, all of Seattle, for appellant.

Lindsay L. Thompson and John H. Dunbar, both of Olympia, for the State.

TOLMAN J.

The city of Tacoma seeks by this proceeding to condemn and acquire certain real property and rights belonging to the state of Washington. From a judgment dismissing its petition, the city has appealed.

The city of Tacoma has undertaken to install a hydroelectric plant for the purpose of generating electricity to be used for light and power purposes, by utilizing the waters of the North fork of the Skokomish river in Mason county. It has already acquired by purchase and by condemnation, in other proceedings, substantially all of the property and rights of private owners which it requires for its present purpose, and now seeks to acquire certain property and rights owned by the state of Washington, which it regards as essential.

The Skokomish river, which flows into Hoods Canal, is formed by the junction of what are known as the North fork and the South fork. This junction of the two forks occurs about seven miles above the mouth of the river. The city proposes to erect a dam on the North fork in section 5, township 22 north, range 4 west, at a point about 11 miles above the junction of the two forks, and, by means of this dam and the necessary diverting works, to take all of the water of the North fork and carry and discharge it by means of a canal and pipe line through its power house, and into Hoods Canal without returning it to the stream. The result will be that the only water flowing from the North fork into the main stream will be such as goes through or over the dam by wastage, and such as is discharged into the North fork by tributary streams between the dam and the confluence of the two forks.

By this proceeding it is sought to acquire the right to divert the water of the North fork from one acre of land belonging to the state, located on the North fork below the proposed dam which is referred to as the 'eyeing station.' The state also owns a certain school section, No. 16, through which the North fork flows, also below the dam, and the city seeks to condemn a strip 250 feet in width, lying 125 feet on either side of the center line of the channel of the stream as it flows through this section, with the water rights appurtenant thereto, and the right to divert the water flowing therein. The petitioner also seeks the condemnation of certain tide and shore lands within the limits of State Oyster Reserve No. 1; but since this appeal was perfected the city has determined that by a change in its plans the taking of this property can be avoided, and its condemnation is no longer sought. By stipulation entered into on the day of trial, the petition was amended so as to add to the rights sought to be acquired the right to damage property upon which a certain state fish hatchery is located so far as the same may be damaged, if at all, by the diversion of the waters of the North fork so that they will no longer re-enter the main stream and flow past the hatchery. The state, by its answer, raised the following affirmative defenses: (a) That the one-acre tract first referred to was acquired by the state, by purchase, for the purpose of using the same as a site for a fish hatchery, and that the land has been used in the past as an eyeing station by the state, and will, when money is available therefor, be used as a site for a fish hatchery; (b) that the tract described in the amendment by stipulation is used by the state as a fish hatchery; (c) that the oyster bed reserve is not subject to condemnation; (d) that food salmon ascend the North fork of the Skokomish river during spawning season and use it as a spawning ground, and that the proposed dam and diversion of the waters will destroy, or seriously damage, the propagation of salmon therein; and, finally, the state pleaded that the city had not acquired from the state supervisor of hydraulics a permit to divert the waters of the North fork.

The trial court held that the land, premises, and rights sought to be acquired are not subject to condemnation, and denied the application for an adjudication of public use, and dismissed the petition. There was no finding that the use for which the property was sought to be taken was not a public use, and it seems to be assumed by both parties...