Gasaway v. City of Seattle

• Decision Date: 06 April 1909
• Citation: 100 P. 991,52 Wash. 444 s
• Parties: GASAWAY v. CITY OF SEATTLE.
• Court: Washington Supreme Court

100 P. 991

52 Wash. 444s

GASAWAY v. CITY OF SEATTLE.

Supreme Court of Washington

April 6, 1909

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by L. A. Gasaway against the City of Seattle. Judgment for plaintiff, and defendant appeals. Reversed.

Scott Calhoun and Bruce Shorts, for appellant.

Louis Henry Legg and A. C. MacDonald, for respondent.

CHADWICK J.

Plaintiff brought this action to recover from defendant, the city of Seattle, certain lands held by it under condemnation proceedings. The land sought to be recovered consists of three tracts, and together they comprise a part of the right of way and watershed acquired by the city in connection with its Cedar river water system. One of these tracts was acquired by condemnation proceedings in July, 1896, the others by like proceedings in 1901. In each case the value of the property as assessed by a jury was paid into the office of the clerk of the superior court. The assignee of the owner received, receipted for, and accepted as compensation the amount so found to be due. Because of these facts, we shall not consider the sufficiency of the service upon the owner of the property, although the point was raised by plaintiff upon the trial by objection to the introduction of testimony. At the time the condemnation suits were prosecuted in the lower court, there had been levied taxes which were then due delinquent, and unpaid. In one of the condemnation suits the county of King was made a party, and service was had upon the county auditor. In the other it was not made a party, and, so far as the record shows, it had no actual notice of the condemnation suits. Thereafter King county brought an action to establish and foreclose its lien for taxes, and, after the usual proceedings, the treasurer of King county deeded the several tracts of land, a part of which the city had condemned, and was then in possession of, to plaintiff's grantor, who on October 4, 1904, conveyed all his interest in the land to the plaintiff. The lower court made findings in favor of the plaintiff, and entered judgment 'that the claim to ownership of the said lands and every part thereof of the defendant is without right, and the title to said lands and every part thereof is hereby quieted and set at rest in the plaintiff against every claim of the defendant or any one claiming by or through it'--from which judgment defendant has appealed.

The only question for us to decide is whether the tax lien of the county of King is superior to the right of the city of Seattle to condemn and take property for a public use. Appellant takes the position that in the acquisition of land for public use no greater duty is put upon it than is expressly provided in the statute. Chapter 84, p. 189, Laws 1893, governing condemnation suits by cities of the first class, provides (section 4) that actions prosecuted under its provisions shall proceed in the names of the owners and occupants of the lands and all persons having an interest therein. It is apparent that the Legislature took no concern of a tax lien, or, if it did, the city insists that, by virtue of the condemnation proceedings which it strictly complied with, it took the property discharged of all claims and liens whatsoever, including that of the county, and if a lien for taxes survived it attached to the fund paid into court as compensation for the land taken. In the case of Puyallup v. Lakin, 45 Wash. 368, 88 P. 578, this court held that personal property acquired by the city of Puyallup by purchase was liable for a tax that had been assessed before the city acquired its title. 'The second contention, that the property is not taxable because devoted to public use, we think cannot be sustained. If the property had a lien upon it which was purchased by the municipality the municipality like an individual would take the property subject to the lien. The collection of the tax might be an idle thing if all the assessment that was due on the property would go to the municipality, but such is not the case. A portion of the money is due to the state, a portion to the county, and a portion to the school district and such incorporations are entitled to their share of the money due.' The lower court followed that case, and were it not for the act of 1893, which seems to grant a greater power to, as well as confer a greater benefit upon, cities of the first class to which it is made applicable than it does to quasi public corporations exercising the right of eminent domain, we would be inclined to hold that case controlling. This case seems to be one of first impression, and a recurrence to fundamental principles is necessary to fully elucidate the distinctions which we shall draw between it and the Puyallup Case. The power to condemn land for a public use is in the state of Washington. If it is exercised by others, it must be by reason of some constitutional or statutory provision. It is not so with the state. The power to condemn land is an attirbute of sovereignty. power to condemn land is an attribute of sovereignty. granted, by the Constitution.' Samish River Boom Company v. Union Boom Company, 32 Wash. 586, 73 P. 670. The right to exercise this endowment of the state may lie dormant.

Its exercise depends upon an expression of the legislative will or sanction. A municipal corporation could not exercise it unless expressly authorized by the Legislature. Tacoma v. State, 4 Wash. 64, 29 P. 847; Long v. Billings, 7 Wash. 267, 34 P. 936; 10 Am. & Eng. Enc. Law, 1049. Vattel in Le Droit des Gens, Lib. 1, c. 20, par. 244, lays down the primary rule as follows: 'In political society everything must give way to the common good, and, even if the person of the citizen is subject to this rule, their property cannot be excepted. The state cannot live or continue to administer public affairs if it have not the power to dispose of every kind of property under its control.' All of our statutes extending this power to municipal and public service corporations are drawn in conformity with the rule that it is a proceeding in rem, and that it is not necessary to look beyond those named in the statute in the prosecution of these proceedings. Ballinger's Ann. Codes & St.§ 5637 (Pierce's Code, § 5102); 7 Enc. Pl. & Pr. 503. The law (section 4, Laws 1893) says what the petition for condemnation of land shall contain and who shall be made parties. 'The owners and occupants thereof and of persons having any interest therein, so far as known, to the officer filing the petition or appearing from the records in the office of the county auditor.' In order to uphold the title of respondent, we would be compelled to hold that King county, to which the like sovereign power of the state to levy and collect taxes has been delegated, is a necessary party in all cases prosecuted under this act when a tax has been assessed and is unpaid. Under statutes providing that the petition should name the owner or owners those holding equitable interests, mortgagees, and lienholders have been held to be unnecessary parties. It is only under statutes providing that interested parties shall be brought in that they are held to be proper parties.

The question reduces itself to the question whether the county by reason of its tax lien, is a person having an interest therein within the meaning of the act. We think not. The object of section 4 was to bring before the court the owners, occupants ( Owen v. St. Paul, etc., R. Co., 12 Wash. 313, 41 P. 44), mortgages, and such others as the records in the office of the county auditor might show had an interest in the land or the compensation to be paid therefor, not that they might defeat the action, for the public use being determined no defense would lie, except as to the amount of damages, but that the fund to be paid into court may be properly and finally disposed of. By design or oversight the Legislature has taken no account of the 'interest,' if it may be so called, of the county. The statute was probably drawn on the theory that a municipal corporation exercising the sovereign power of the state, being itself a political subdivision of the state, could take land under the power of eminent domain without regard to taxes or tax liens; for, if the state could so take land, it can delegate the power, and, in the absence of an express reservation, it must be held that the city has acquired the full power possessed by the state. This court has held that, although the legal title to land held under an executory contract of sale is in the state of Washington, the state is not a necessary party because the interest of the state is not subject to condemnation, although the interest of its vendee under such contract may be. In State ex rel. Trimble v. Superior Court, 31 Wash. 445, 72 P. 89, 66 L. R. A. 897, this court said: 'While it is true that the state holds the naked legal title to these tide lands as trustee for the relators and their assigns, and is, to that extent, interested therein, it is also true that it is no more concerned in the condemnation suit than it would be in a voluntary transfer by the...