Fransen v. Board of Natural Resources

• Decision Date: 22 July 1965
• Docket Number: No. 37404,37404
• Citation: 66 Wn.2d 672,404 P.2d 432
• Parties: Walter C. FRANSEN et al., Respondents, v. BOARD OF NATURAL RESOURCES of the State of Washington, et al., Appellants.
• Court: Washington Supreme Court

Page 672

66 Wn.2d 672

404 P.2d 432

Walter C. FRANSEN et al., Respondents, v. BOARD OF NATURAL RESOURCES of the State of Washington, et al., Appellants.

No. 37404.

Supreme Court of Washington, En Banc.

July 22, 1965.

Rehearing Denied Oct. 21, 1965.

John J. O'Connell Atty. Gen., Harold T. Hartinger, Laurel L. Tiller, Asst. Attys. Gen., Olympia, for appellants.

Bell, Ingram, Smith & Minor, Lewis A. Bell, Everett, for respondents.

ROSELLINI, Chief Justice.

When the defendants, members of the Board of Natural Resources, authorized the sale to the city of Tacoma of forest lands located within that city's Green River municipal watershed, the plaintiffs, after having first made demand on the attorney general, brought this taxpayers' suit to enjoin the delivery of the deed, contending that the sale of the lands in question is prohibited by RCW 76.12.120. The defendants moved to dismiss the action. The motion was denied and the court granted a temporary restraining order, from which this appeal was taken.

RCW 76.12.120 provides, insofar as it is pertinent to this action:

'All land, acquired or designated by the (state forestry) board as state forest land, shall be forever reserved from sale, but the timber and other products thereon may be sold or the land may be leased in the same manner and for the same purposes as is authorized for state granted land if the board finds such sale or lease to be in the best interests of the state and approves the terms and conditions thereof. * * *'

It would seem that this provision unequivocally forbids the sale of state forest lands, which the lands the defendants propose to sell to Tacoma are admitted to be. But the defendants contend that they are given the authority to sell the lands in other statutory provisions. They first suggest that express authority may be found in RCW 79.01.414, which reads 'The department of natural resources may grant to any person such easements and rights in state lands, tidelands, shorelands, oyster reserves, or state forest lands as the applicant applying therefor may acquire in privately owned lands through proceedings in eminent domain. No grant shall be made under this section until such time as the full market value of the estate or interest granted together with damages to all remaining property of the state of Washington has been ascertained and safely secured to the state.'

If this statute authorizes the sale of state forest lands, it is in direct conflict with RCW 76.12.120, which was enacted originally in 1923. RCW 79.01.414 was added to the public lands act by the legislature in Laws of 1961, chapter 73, § 12.

Repeals by implication are not favored. Before a legislative enactment can be found to have been impliedly repealed by a subsequent act, the present legislation must evidently be intended to supersede the prior legislation on the subject. Both acts will be allowed to stand unless they are clearly inconsistent with and repugnment to each other and cannot, by fair and reasonable construction, be reconciled and both given effect. Babcock v. School Dist. No. 17, 57 Wash.2d 578, 358 P.2d 547; State ex rel. Reed v. Spanaway Water Dist., 38 Wash.2d 393, 229 P.2d 532.

If the statute is read as permitting grants of easements and rights in forest lands but not the fee title to such lands, it does not conflict with RCW 76.12.120.

The defendants argue that the use of the word 'estate' suggests that the legislature meant to authorize the granting not only of easements, but also of estates in fee. According to Black's Law Dictionary (4th ed.), an estate is

'The interest which any one has in lands, or in any other subject of property. * * * In this sense, 'estate' is constantly used in conveyance in connection with the words, 'right,' 'title,' and 'interest,' and is, in a great degree, synonymous with all of them.'

The rule is that, when the legislature uses a term without defining it, such term being well knwon to the common law and there given definite meaning, it will be presumed that the legislature used the word in the sense in which it was understood at common law. In re Phillips' Estate, 193 Wash. 194, 74 P.2d 1015. 'Estate' being synonymous with 'interest' at common law, its use in the statute cannot be held to evidence an intent to expand the ordinary meaning of the words 'easements and rights in state lands' to include estates in fee.

We are of the opinion that RCW 79.01.414 can be given a reasonable effect and at the same time harmonized with RCW 76.12.120. Accordingly we hold that it authorizes the sale of easements and rights in the forest lands but does not authorize sales of the lands themselves.

The defendants also claim authority to make the sale by reason of RCW 79.01.128, which reads:

'Whenever any state lands, except capitol building lands, lie within the limits of any watershed over or through which is derived the water supply of any city or town in this state, and such city or town shall desire to purchase or condemn the same, it may do so, and, in case of purchase, it shall have the right to purchase the land with the timber, fallen timber, stone, gravel, or other valuable material thereon without a separate appraisement thereof.'

State lands are defined by RCW 79.01.004 as

'* * * lands belonging to or held in trust by the state, which are not devoted to or Reserved for a particular use By law * * *.' (Italics ours.)

State forest lands are reserved for a particular use by RCW 76.12.120. Consequently they are excluded from the definition of state lands in RCW 79.01.004, and RCW 79.01.128 has no application.

It is urged that implied authority to make the sale in question is derived from RCW 8.12.030 and 35.92.010. We held in City of Seattle v. State, 54 Wash.2d 139, 338 P.2d 126, that these statutes authorize cities to condemn state lands within a municipal watershed which have not been dedicated to a public use. But these statutes are of no more aid to the defendants than is RCW 79.01.128, inasmuch as state forest lands are reserved by law for a public use.

Error is assigned to the court's refusal to dismiss the action on the ground that it had not been commenced within the time provided by law. RCW 79.01.500 reads, in part:

'Any applicant to purchase, or lease, any public lands of the state, * * * and any person whose property rights or interests will be affected by such sale or lease, feeling himself aggrieved by any order or decision of the board of state land commissioners * * * concerning the same, may appeal therefrom to the superior court of the county in which such lands * * * are situated * * * within thirty days from the date of the order or decision appealed from.'

The plaintiffs are not persons whose property rights or interests will be affected by the sale of the lands in question. They are taxpayers, whose interest in the subject matter of the action is no different from that of other taxpayers. The statute gives them no right of appeal, nor does it apply to sales of state forest lands. We find no merit in this contention.

Finally, the defendants urge that the plaintiffs have no standing to bring this suit, inasmuch as they have no interest different or greater than that of citizens generally. They concede that, under the law as it now stands in this state, the plaintiffs have such standing. In the leading case of Reiter v. Wallgren, 28 Wash.2d 872, 184 P.2d 571, we said:

'* * * We never have held that, in a proper case Where the attorney general refused to act to protect the public interest, a taxpayer could not do so.

'In the absence of a statute governing suits by taxpayers, a demand upon the proper public officer to take appropriate action is a condition precedent to the maintenance of a taxpayer's action challenging the validity and legality of what public officers are intending to do or have done, unless facts are alleged which sufficiently show that the demand to bring suit would have been useless.'

In accord are State ex rel. Lemon v. Langlie, 45 Wash.2d 82, 273 P.2d 464, and State ex rel. Tattersall v. Yelle, 52 Wash.2d 856, 329 P.2d 841.

The defendants maintain that, if taxpayers are allowed to bring injunction actions against public officers, the administration of public affairs will be unduly hampered. They have not brought to our attention a case illustrative of this evil, and certainly the instant action is not an example of unwarranted harassment. Inasmuch as it has not been demonstrated to the court that such taxpayers' suits result in...