Kitsap County v. Melker

• Decision Date: 03 March 1909
• Court: Washington Supreme Court
• Parties: KITSAP COUNTY v. MELKER et ux.

100 P. 150

52 Wash. 49

KITSAP COUNTY v. MELKER et ux.

Supreme Court of Washington

March 3, 1909

On motion to recall the remittitur after affirmance, and to tax costs against plaintiff county. Motion denied.

For former opinion, see 50 Wash. 29, 96 P. 695.

FULLERTON J.

The county of Kitsap brought proceedings under the statutes of eminent domain against the appellants to condemn a right of way for a county road across their land. The proceedings were prosecuted to trial and judgment in which an award was made to the appellants for the land taken and damaged by the establishment of the road. The appellants, not being satisfied with the award as made, appealed to this court whereupon the judgment was affirmed and the cause remanded. Kitsap County v. Melker, 50 Wash 29, 96 P. 695. The costs of the appeal were taxed in this court against the appellants, and they now move that the remittitur be recalled and the costs taxed against the county. The motion is based on section 16 of article 1 of the state Constitution, which reads 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 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.' The contention is that this section not only guarantees to the landowner whenever his land or any part of it is sought to be taken for a public use the right to have his damages ascertained in a judicial proceeding and paid into court for him without costs on his part, but that this right to freedom from costs extends to the appellate court, should the landowner take the question to that court, no matter whether or not he receives a more favorable judgment in that court than he was awarded in the court below. In Peterson v Smith, 6 Wash. 163, 32 P. 1050, we held that under the constitutional provision above cited a landowner whose land was sought to be appropriated for a county road could remain silent and be assured that, before his property is condemned the county would ascertain his damage and either pay it to him or 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 in which he could appear and make his showing of damages if he so desired; holding, further, that a law which required the landowner to present a claim for his damages to road viewers and submit to an ascertainment by them of the amount thereof, or else take the case into the courts himself, was unconstitutional. To the same effect is Askam v. King County, 9 Wash. 1, 36 P. 1097, which held a drainage law unconstitutional because it did not provide for the ascertainment of the amount to be paid for the property taken and damaged by a proceeding in court except on the initiative of the property owner. In Snohomish Count v. Hayward, 11 Wash. 429, 39 P. 652, a law relating to the...