In re Twelfth Ave. South

• Decision Date: 13 June 1913
• Parties: In re TWELFTH AVE. SOUTH.
• Court: Washington Supreme Court

132 P. 868

74 Wash. 132

In re TWELFTH AVE. SOUTH.

Supreme Court of Washington

June 13, 1913

Department 2. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

In a condemnation proceeding for Twelfth Avenue South against the Yesler Logging Company, the Seattle Electric Company applied to be substituted in the judgment of condemnation in place of the logging company, and, its application being denied appeals. Reversed and remanded, with directions.

Jas. B Howe and Hugh R. Tait, both of Seattle, for appellant.

Jas. B. Murphy, of Seattle, for respondent.

ELLIS J.

This case presents a contest between the owner of land at the date of a verdict and the owner at the date of the final judgment in condemnation as to which shall receive the money paid into court in compensation for the right to damage the land by a regrade of certain streets by the city of Seattle. At the date of the condemnation proceedings by the city, and at the date of the verdict assessing the damages, the Yesler Logging Company was the owner of the land. Prior to the entry of the judgment upon the verdict, and prior to the payment of the compensation awarded into the registry of the court, and prior to the date of doing the damage to the property for which compensation was paid into court, that company sold and conveyed the land by warranty deed, describing the land by metes and bounds 'together with the appurtenances,' and without any reservation, to the Seattle Electric Company. After these things had been done, the latter company, claiming the right to the money as owner of the land, applied to be substituted in place of the Yesler Logging Company in the judgment of condemnation. The court, holding the logging company entitled to the money, denied the application. The Seattle Electric Company appealed.

Under these admitted facts appellant contends, and we think justly, that it is entitled to the compensation paid into court for the privilege of damaging the land. In the absence of any reservation in the deed of conveyance to the contrary, or of facts showing estoppel or other contravening equity, such as payment of a less price by reason of the pending condemnation proceeding, the person owning the land at the time the right to take or damage it became irrevocable in the city should be entitled to the compensation for such damage. Prior to that time both the right to take or damage and the obligation to pay for that right are inchoate, uncertain, and contingent, and may never mature. An abandonment of the condemnation by the city would defeat the one and abort the other. Where the conveyance of the land pending condemnation is by deed, without reservation, the only certain and just rule is that the money to be paid for the right to take or damage the property shall be paid to the person or persons owning the property or having an interest therein at the time when the condemnation has reached that point of completion where it is not subject to abandonment and when the right to the compensation becomes an enforceable demand against the condemnor. This is the necessary result of the decision in North Coast R. Co. v. Gentry, 131 P. 856, where we held that the title passed by the condemnation when the condemnor had estopped itself from abandoning the condemnation. The inquiry is thus reduced to the simple question: When did the right to damage and the correlative obligation to pay become fixed and irrevocable?

The statute conferring the right upon and governing the exercise of the power of eminent domain by cities, so far as here material, provides: 'Any final judgment or judgments rendered by said court upon any finding or findings of any jury or juries, or upon any finding or findings of the court in case a jury be waived, shall be lawful and sufficient condemnation of the land or property to be taken, or of the right to damage the same in the manner proposed, upon the payment of the amount of such findings. * * *' Rem. & Bal. Code, § 7783. 'The court, upon proof that just compensation so found by the jury, or by the court in case the jury is waived, together with costs, has been paid to the person entitled thereto, or has been paid into court as directed by the court, shall enter an order that the city or town shall have the right at any time thereafter to take possession of or damage the property in respect to which such compensation shall have been so paid or paid into court as aforesaid, and thereupon, the title to any property so taken shall be vested in fee simple in such city or town.' Rem. & Bal. Code, § 7784. 'At any time within two months from the date of rendition of the last judgment awarding compensation for any such improvement in the superior court, or if any appeal be taken, then within two months after the final determination of the appeal in the supreme court, any such city may discontinue the proceedings by ordinance passed for that purpose before making payment or proceeding with the improvement by paying or depositing in court all taxable costs incurred by any parties to the proceedings up to the time of such discontinuance. * * *' Rem. & Bal. Code, § 7816. The state Constitution (article 1, § 16)

contains the following: 'No private property shall be taken or damaged for public use without just compensation having been first made or paid into court for the owner. * * *'

These statutory provisions, construed in connection with the constitutional requirement, make it plain that prior to the entry of the judgment and the payment into court the city acquires no right to take or damage the land, and that the owner acquires no right to compensation until the expiration of 60 days after the entry of judgment unless the compensation be sooner paid into court. The owner is not divested of his title, nor can his property be lawfully damaged until compensation is made or paid into court. The proceeding is in rem, and the property is not condemned until the entry of the last judgment therein and the expiration of the statutory period accorded for abandonment or a waiver of the right of abandonment by an earlier payment. Until then the owner has acquired no vested personal right to enforce payment. 2 Lewis on Eminent Domain (3d Ed.) § 895, p. 1561. Until then neither he nor his property has sustained damage. Then, and not till then, the title to the property or the right to damage it passes to the city, and the title to the money passes to the owner, unless he appeals. Spokane v Cowles, 67 Wash. 539, 121 P. 463; State ex rel. Murray...