Healy Lumber Co. v. Morris

• Citation: 74 P. 681,33 Wash. 490
• Court: United States State Supreme Court of Washington
• Decision Date: 16 December 1903
• Parties: HEALY LUMBER CO. v. MORRIS et ux.

74 P. 681

33 Wash. 490

HEALY LUMBER CO. v. MORRIS et ux.

Supreme Court of Washington

December 16, 1903

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by the Healy Lumber Company against Shamgar Morris and wife. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Preston, Carr & Gilman and Hoyt & Haight, for appellant.

Walter S. Fulton and Vince H. Faben, for respondents.

DUNBAR, J.

This is an action brought by appellant to condemn land and waters for a logging road and waterway in King county. A demurrer to the complaint was sustained, and, the plaintiff electing to stand on its complaint, judgment was rendered for the defendants. The complaint made the necessary allegations to bring the case within the statute which provides for the condemnation of logging roads and waterways. The act is found on page 255 c. 130, of the Laws of 1899, and the first section thereof is as follows:

'Section 1. Any owner or owners of any timbered lands, or timber desiring to cut or remove the same to a point wherein the same may be manufactured, transported, by either rail or water, driven, rafted, assorted, boomed or shipped for lumbering purposes and having no practical route for a road or right-of-way whereon to remove or haul said timber shall have the right to condemn as hereinafter provided, a right of way for a logging road, or chute, stream, or watercourse from said lands to any waters, railroad logging road or chute or public highway, by the most direct and feasible route, and shall have the right to condemn the use of any stream, water-course, slough, pond or lake together with sufficient land along the bank or banks thereof, to enable the driving, rafting, booming or handling of such timber for the removal of said timber provided that proceedings to obtain such right-of-way shall conform to the law allowing private corporations to condemn a right-of-way in this state, except as is hereinafter pro vided.'

Sections 2, 3, 4, and 5 provide the mode of procedure. Sections 7 and 9 are as follows:

'Sec 7. Judgment shall be entered upon said verdict or finding appropriating an easement upon said land and other property for said right-of-way for the purpose only of logging or removing timber from the land set forth in said complaint: provided, however, that any one or more persons owning or controlling timber land or timber and entitled to condemn such right-of-way under the provisions of this act may join as plaintiffs in such action. Any person condemning such right-of-way shall have the exclusive use thereof and the right to remove therefrom any improvements or structures placed thereon, subject to the right of any other person or persons to condemn said logging road, chute, stream, water-course or slough, as herein provided: provided further, that any other party owning or controlling timber tributary to any such stream or water-course condemned as aforesaid, and who has not joined in such condemnation, may have the right to use the same upon paying to the parties owning the right-of-way the proper proportion of the cost of such improvement and the expenses of maintaining the same, to be determined by the superior court of the proper county, if the parties cannot agree.'

'See. 9. When any logging road or chute, stream or water-course, slough or lake shall cease to have been used for one year, any party interested may file a motion in such action and upon notice to the owner or person in charge of such timber, obtain an order vacating such right-of-way, unless good cause is shown why such logging road or chute, stream, water-course, slough, pond or lake upon such condemned right-of-way should not be vacated. Nothing but an easement can be acquired by this proceeding and no interest in the land shall pass by the decree of appropriation.'

The demurrer was sustained on the ground that the act was in contravention of section 16, art. 1, of the Constitution of this state, which provides as follows: 'Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes or ditches on or across the lands of others for agricultural, domestic or sanitary purposes. 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 no right-of-way shall be appropriated to the use of any corporation other than municipal, until full compensation therefor be first made in money, or ascertained and paid into the court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived as in other civil cases in courts of record, in the manner prescribed by law. Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public'--in that the act of condemnation did not provide for a public use of the land condemned. This case presents important questions, deserving the most serious consideration, involving, as it does, the respective interests of private rights, and of property of the state sought to be protected and fostered through the exercise of the high prerogative of sovereignty; the former being guarantied by the fundamental law, and the latter being a subject of universal interest and concern. Eminent domain is the right or power of a sovereign state to appropriate private property. This right is generally exercised through condemnation proceedings, and the rights of the individual must yield to the superior rights of the state as a promoter and conservator of the public welfare. It will be seen that the vital question to be determined is whether the statutory proceedings in question secure the public or private use of the property condemned.

An immense number of authorities have been cited in this case all of which we have carefully examined, but a particular analysis of which cannot be made within the limits of a reasonable opinion. But from the research we have made, we conclude that both the weight of authority and the better reasoning sustain the judgment in this case, that therefore the statute in question is in contravention of the Constitution, and that the words 'public use' were not used by the framers of the Constitution in the liberal, and, it seems to us, somewhat indiscriminate, sense which is contended for by the appellant. The learned attorney for appellant has favored the court with an exhaustive and earnest argument in his brief, and a painstaking showing is made of the magnitude of the lumbering business and interest of this state, and the effect that it presumably has upon the general prosperity of the commonwealth; and we are urged to announce a broad and statesmanlike principle in determining this question, and one which would further the business prosperity of the state, rather than one which would hamper and retard it. But the court cannot invade the province of the lawmaking powers of government, and intrude into its decrees its opinions on questions of public policy. Its duty is to strictly recognize its legal limitations, and confine itself to the narrower duties of interpretation and construction. The main arguments in the brief, powerful as they are, would have been more appropriately presented to the framers of the Constitution. Many of the cases cited by the appellant have no application to this case, for the reason that they are from states having Constitutions with different provisions from ours on the subject of eminent domain. An examination of all the different Constitutions in the Union shows that only two other states, viz., Colorado and Missouri, have the provision of our Constitution, that, 'whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question and determined as such, without regard to any legislative assertion that the use is public.' That fact eliminates from the discussion in this case all that line of cases which hold that the fact that the Legislature has either pronounced a certain thing a public use, or has so indicated by its enactment, by conferring the right of eminent domain, ought to have great weight with the court in construing the constitutionality of the act, because our Constitution has expressly negatived any such idea; evidently deeming it necessary to place a restriction upon legislative sentiment in this respect. So that, under the provision of our Constitution, the court is untrammeled by any consideration due to Legislative assertion or enactment. Most of the Constitutions have limitations upon the power of the state to condemn private property, except for public use. A good many, however, have left in the state just such powers as it had, untrammeled by limitations; and cases from states where there is no limitation on legislative enactment, of course, are without value in the consideration of this case. The first few cases cited by appellant, commencing with the citation from Grotius, simply announce the undisputed doctrine that the power of eminent domain is inherent in sovereignty, and that the property of the subject is under the power of the eminent domain of the state to such an extent that the state may use and even destroy such property for ends of public utility. Hazen v. Essex Company, 12 Cush. 475, is not in point, for the announcement of the court in that case was that, in determining the question, we must look to the declared purpose of the act; and, if a public use...