Deaconess Hospital v. Washington State Highway Commission
| Decision Date | 07 June 1965 |
| Docket Number | No. 37673,37673 |
| Citation | 66 Wn.2d 378,403 P.2d 54 |
| Court | Washington Supreme Court |
| Parties | The DEACONESS HOSPITAL, an eleemosynary corporation, Respondent, v. The WASHINGTON STATE HIGHWAY COMMISSION, Ernest A. Cowell, Ernest J. Ketcham, Robert L. Mikalson, George D. Zahn, James M. Blair, Commissioners of the Washington State Highway Commission, and W. A. Bugge, Director of The Department of Highways of the Washington State Highway Commission, Appellants. |
Schweppe, Reiter, Doolittle & Krug, Thomas R. Beierle, Seattle, Benjamin H. Kizer, Spokane, for respondent.
Williams, Cole & Kinnear, Kenneth A. Cole, Lewis L. Stedman, Seattle, Keith, Winston & Repsold, Patrick H. Winston, Spokane, amici curiae.
Respondent, The Deaconess Hospital, commenced this action in Spokane County, seeking to enjoin the Washington State Highway Commission, the commissioners thereof, and the director of highways from proceeding further in the location and construction of state In support of the relief which it sought, respondent in substance alleged that (a) it was an owner of property abutting on the proposed freeway; (b) the noise and fumes of traffic from the proposed freeway, together with projected interference with established access routes, would invade and restrict the peaceable enjoyment of the hospital properties, constitute a nuisance in fact, and cause substantial damage to respondent's property rights; (c) statutory notice and hearing requirements relating to highway planning (RCW 47.52.130 and 47.52.140) and access limitation (RCW 47.52.072) were not complied with, thus rendering appellants' actions unlawful; and (d) by reason of noncompliance with statutory procedures and because alternative and preferable routes were available, appellants' decision as to location and routing of the highway was arbitrary and capricious.
primary highway No. 2, a multilane freeway passing through the city of Spokane and within 65 to 70 feet from the north wing of respondent hospital. The state of Washington, as a distinct entity, was not named as a party.
Respondent did not, in this action, seek damages. It sought only injunctive relief against the highway commission and its officers. The scope of the relief which it contemplated was (1) a permanent injunction compelling appellants to re-route the proposed highway; or (2) an injunction restraining appellants from proceeding with the proposed highway until they had complied with the statutory notice and hearing requirements; or (3) an injunction enjoining completion of the highway until respondent's damage had been ascertained and compensation paid therefor.
Appellants moved to dismiss respondent's complaint, asserting as a basis for such motion that the action was an action against the state and jurisdiction over such rested exclusively in the Superior Court of Thurston County. Affidavits and counter-affidavits were filed, and the motion was extensively argued before the trial court. The trial court denied the motion. Appellants did not seek review by way of prohibition, certiorari, or other extraordinary remedy.
Instead, appellants answered respondent's complaint, denying the material allegations thereof. A lengthy trial ensued.
At the conclusion of the evidence submitted by the parties, the trial court, in essence, found and concluded that respondent was an abutting owner, and that appellants had not complied with the statutory notice and hearing requirements, had acted arbitrarily and capriciously, and as to respondent's properties, would be creating a nuisance in fact and would inflict damage upon such properties. The trial court thereupon issued a permanent injunction restraining appellants from locating and constructing the highway in question along the proposed route in front of respondent hospital.
On appeal, appellants renew their challenge to the jurisdiction of the Superior Court of Spokane County.
In support of their challenge, appellants rely upon the provisions of RCW 4.92.010, 1 and the application given thereto by this court in State ex rel. Pierce Cy. v. Superior Court, 86 Wash. 685, 151 P. 108 (1915) (); State ex rel. Pate v. Johns, 170 Wash. 125, 15 P.2d 693 (1932) (); and State ex rel. Thielicke v. Superior Court, 9 Wash.2d 309, 114 P.2d 1001 (1941) (a suit initiated against the state in Thurston County seeking recovery for property Respondent, on the other hand, points to its allegations and evidence dealing with abutting ownership, unlawful and arbitrary and capricious action on the part of appellants as state officials, and potential invasion of and damage to its property rights, and urges that the action falls within the ambit of State v. Superior Court, 167 Wash. 334, 9 P.2d 70 (1932) (); State ex rel. Robinson v. Superior Court, 181 Wash. 541, 43 P.2d 993 (1935) (); State ex rel. Robinson v. Superior Court, 182 Wash. 277, 46 P.2d 1046 (1935) (); Wiegardt v. Brennan, 192 Wash. 529, 73 P.2d 1330 (1937) (); and State ex rel. Fleming v. Cohn, 12 Wash.2d 415, 121 P.2d 954 (1942) (). In each of the cited cases, this court held that the state and its sovereign interests were not so affected as to render it a real party in interest to the action. In short, this court indicated that where the allegations of the pleadings were such as to In the instant case, respondent alleged prospective damage to its properties arising out of noise and noxious fumes. Within the scope of its request for relief in this respect was the possibility that the trial court might have enjoind completion of the highway project until respondent's damages were ascertained and paid. Respondent also alleged that appellants, as agents and administrators, were proceeding unlawfully and beyond the scope of their statutory authority in that they had failed to comply with the notice and hearing provisions of the statute with respect to route and access limitations. Within the scope of respondent's request for relief in this regard was the possibility that the trial court might have enjoined further development of the project until appellants had complied with the statutory provisions. The fact that respondent also alleged and emphasized a nuisance in fact and requested a permanent injunction predicated thereupon, or that the trial court followed respondent's theory in this respect, does not, from the jurisdictional point of view, necessarily obliterate respondent's other claims. Issue was joined by the appellants upon all claims at all stages of the action, and evidence was introduced and admitted bearing upon all issues. There is nothing in the extensive and spirited trial of this action to indicate that any particular facet of respondent's claims was injected purely as 'window dressing' for jurisdictional purposes. Neither does the fact that respondent's claim of potential property damage emanates from alleged noise and fumes necessarily distinguish it from a claim of potential damage arising out of a change of grade or other type of physical invasion. Cf. Ackerman v. Port of Seattle, 55 Wash.2d 400, 348 P.2d 664 (1960).
damage arising out of highway construction). In each of the cited cases, this court held that, by their nature, the actions were in essence and in substance actions against the pecuniary and sovereign interests of the state and that the jurisdiction for such actions lay in Thurston County raise substantial issues of (a) potential damage to property without ascertainment and payment of just compensation, or (b) unlawful or arbitrary and capricious action by state officers beyond the scope of or contrary to their statutory authority, an injunctive action would lie in the county where the damages or the acts allegedly occurred or were about to occur.
The instant case, therefore, falls within the ambit of State v. Superior Court, supra (167 Wash. 334, 4 P.2d 70), if not also within the circumstance of the State ex rel. Robinson v. Superior Court cases, supra, Weigardt v. Brennan, supra, and State ex rel. Fleming v. Cohn, supra. Jurisdictionally, it was maintainable in Spokane County, and the trial court did not err in denying appellants' motion to dismiss.
Turning then to the merits, Judge HALE'S opinion expresses the view of the court. I concur in his exposition and disposition thereof.
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