Grays Harbor Boom Co. v. Lownsdale

• Decision Date: 09 October 1909
• Citation: 54 Wash. 83,104 P. 267
• Court: Washington Supreme Court
• Parties: GRAYS HARBOR BOOM CO. v. LOWNSDALE et al.

104 P. 267

54 Wash. 83

GRAYS HARBOR BOOM CO. v. LOWNSDALE et al.

Supreme Court of Washington, En Banc.

October 9, 1909

On Rehearing, October 15, 1909.

Appeal from Superior Court, Chehalis County; W. O. Chapman and O. V Linn, Judges.

Action by the Grays Harbor Boom Company against J. P. O. Lownsdale and others. On motion to strike a bill of costs on appeal allowed plaintiff upon its successful appeal from a judgment awarding damages in condemnation proceedings, and on petition for rehearing. Motion granted, and petition denied.

For former opinion, see 102 P. 1041.

J. B. Bridges and Ben Sheeks, for appellant.

J. C Cross, Thomas Vance, and A. Emerson Cross, for respondents.

PER CURIAM.

A proceeding was brought by the Grays Harbor Boom Company to condemn certain lands and shore rights of respondents lying adjacent to its boom grounds. The boom company is organized under the laws of the state of Washington. Upon the trial of the cause a certain amount of damages was awarded to the landowners, the petitioner here, and the boom company considering itself aggrieved by such award, appealed to this court. The appeal was sustained, the judgment was reversed and a new trial ordered. This was in the case of Grays Harbor Boom Company, Appellant, v. J. P. O. Lownsdale et al., Respondents, 102 P. 1041. Following the reversal, the boom company filed a bill of costs in this court, amounting to $172.85, which the clerk of this court taxed against the petitioner, the respondent in the original case. The respondents now petition this court to strike said cost bill, and for an order authorizing and directing the taxation of costs in favor of respondents and against appellant. This motion will have to be sustained. This court held in Peterson v. Smith, 6 Wash. 163, 32 P. 1050, that in a case of condemnation of land under the provisions of the Constitution providing that no private property shall be taken or damaged for public or private use without just compensation having been first made or paid into court for the owner, and until full compensation be first made in money or ascertained and paid into court for the owner, the owner could remain quiet and be assured that, before his property was condemned, the county in that case must ascertain his damage and either pay him or pay it into court for his benefit, and that the amount of his damage must be ascertained in a court in a proceeding instituted for that purpose, and in which the defendant may appear and make a showing if he so desire. Under this provision of the Constitution and under the law as announced in the case just above cited and all the subsequent cases on this subject, the landowner cannot be put to any costs whatever for the ascertainment of the damages. All costs must be paid by the condemning party until a valid judgment is obtained. It is true, we held in Kitsap County v. Melker, 100 P. 150, that where the award was appealed from by the landowner and the judgment in this court went against him, the condemning party, who was put to the expense of defending the appeal which proves futile, the landowner should pay the costs of such appeal; but that case has no bearing on the case in question, for here the landowner was contented with the award which he secured from the court trying the cause, and, notwithstanding the fact that this court on appeal found that the award was too large, he is entitled to await the final determination of the question without taking any action whatever, and to be protected in his interests without costs to him until the question is finally determined by a valid judgment. The Constitution says that the land shall not be appropriated until full compensation therefor be first made in money or ascertained and paid into court for the owner. Now, the appeal in this case was for the purpose of ascertaining the value of the land. That value has not yet been judicially determined, for that will be the subject of consideration at the next trial of the cause.

A case squarely in point on this subject is Matter of N. Y., W. S. & B. R. Co., 94 N.Y. 287. There the court, in speaking to this point, said: 'The only point remaining to be considered is the appeal from the judgment for costs rendered by the General Term against the landowners on reversing the order of confirmation and appointing new commissioners, amounting to $120.70. We are of opinion that the General Term had no power to award these costs. If the appeal to the General Term had been taken by the landowners, and they had been defeated, it may be that the court could in its discretion have compelled them to pay the costs to which they had subjected the company by such an appeal. But the appeal was taken by the company because it was dissatisfied with the amount awarded, and was a continuation of the proceeding instituted by it to ascertain the compensation payable to the landowners to acquire their land against their will. In such a case to compel the landowners to pay any part of the expenses incurred by the company for the purpose of ascertaining the compensation, which proceedings were an indispensable condition of its right to take the land, would conflict with the constitutional right of the landowner to just compensation.' To the same effect is Stolze v. Milwaukee, etc., R. Co., 113 Wis. 44, 88 N.W. 919, 90 Am. St. Rep. 833, where many cases are cited sustaining the decision.

The motion will be sustained, and the bill of costs stricken, with costs to the petitioner.

On Rehearing.

A petition for a rehearing has been filed in this case, in which it is urgently and earnestly contended that respondents' right to claim the value of their property, considered as a boom site or as valuable for other commercial purposes, is a federal question, and should be so treated by this court. Respondents are of opinion that the decision of this court results in a taking of their property without due process of law, that their property is taken without just compensation, and that they are denied the equal protection of the laws, all of which is in violation of the rights guaranteed to the citizen under the Constitution of the state of Washington, the federal Constitution, and the fourteenth amendment thereto. From this premise the question of what is the proper measure of damages is reargued.

If respondents were the owners of the tide land occupied by appellant, the authorities cited would unquestionably sustain their position. In the case of Boom Company v Patterson, 98 U.S. 403, 25 L.Ed. 206, the principal case relied on by respondents, it was said that, upon condemnation, 'the compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future.' This rule has been accepted by almost every court in the Union. An altogether different condition is here presented. Appellant is not taking the property of respondents, as was done in the Patterson Case. There the owner of the island involved had a riparian right, and with it the right to exercise every incident pertaining thereto. Owning the upland and the littoral and riparian rights, he was entitled to compensation for a possible use. As was said in United States v. Seufert Bros. Co. (C. C.) 78 F. 520: 'Use for which condemnation was sought in that case was for the construction of log booms in the Mississippi river adjacent to the lands condemned. The owner might use his land for this purpose on his own or on public account. The use was not necessarily a public one, and required no public license so long as the navigation of the river was not obstructed. There is, therefore, no reason why the adaptability of the lands condemned for boom purposes was not a proper element to be considered in estimating the value of such lands.' In Chicago, etc., R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979, the court, after admitting the general rule announced in the Patterson Case, says: 'Mere possible or imaginary uses or the speculative schemes of its proprietor are to be excluded.' Compensation is given for taking or injuriously affecting the property of the landowner. Damages must be predicated upon the property itself, or an incident of the property. When a possible use is dependent upon the acquisition of an interest in property of another, no right of compensation accrues. The interest may never be acquired. In the instant case respondents would have no right to maintain a boom on the tide lands of the state were we to hold as respondents contend that we should. The boom ground occupied by appellant is not located upon the property of respondents, or upon any property in which they have an interest; nor does it cut off any riparian right, for there can be no riparian right over tide lands. Lownsdale v. Grays Harbor Boom Co. (Wash.) 103 P. 833. The boom ground is not taken by appellant from respondents, but occupied in virtue of a license granted by the state over its own property, property that is held under a title resting in the sovereignty of the state. It would do violence to the laws of Congress and of this state, as well as the federal and state Constitutions, to hold that the state, being the owner of the tide lands situate within its boundaries, could not sell them or grant a license to use them without first paying their value to an upland owner; or, in other words, compel the purchase of a right from one who did not possess it, one who could not give, grant, or sell the right to maintain the use upon which the claim for damages is predicated. This principle is recognized, but not discussed, in the Patterson Case, wherein it is said: 'We do not understand that all...