Lewis County v. Gordon

• Decision Date: 18 October 1898
• Parties: LEWIS COUNTY v. GORDON ET AL.
• Court: Washington Supreme Court

54 P. 779

20 Wash. 80

LEWIS COUNTY v. GORDON ET AL.

Supreme Court of Washington

October 18, 1898

Appeal from superior court, Lewis county; H. S. Elliott, Judge.

Action by Lewis county against R. F. Gordon and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Dunbar J., dissenting.

Reynolds & Stewart and C. H. Forney, for appellants.

George Dysart, Co. Atty., and W. W. & M. A Langhorne, for respondent.

REAVIS, J.

Action by respondent to condemn a right of way through appellants' premises for a ditch, which had previously been constructed under the provisions of an act "to provide for the construction, repairing and protection of drains and ditches for agricultural, sanitary and domestic purposes, and to provide for the organization of drainage districts," approved March 19, 1890. Laws 1889-90, p 652. The proceedings to condemn were taken under the act approved March 19, 1895, entitled "An act providing for the payment of expenses incurred in compliance with an act entitled 'An act to provide for the construction repairing and protection of drains and ditches for agricultural, sanitary and domestic purposes, and to provide for the organization of drainage districts.' ***" A trial was had without the intervention of a jury, and the facts found by the court.

The court found that on the 12th of August, 1890, a petition was filed in writing with the board of county commissioners of the respondent, in accordance with section 4 of the act approved March 19, 1890, praying for the construction of a public ditch along the route designated, and at the same time the petitioner filed his bond required by section 5 of said act, which bond was duly approved; thereafter the county commissioners, under the provisions of the act, undertook the construction of the ditch, and ordered the same surveyed by the county surveyor, in conformity to the provisions of the act; that the surveyor filed his report, showing the location and survey of the ditch, with the estimates of the cost of location and construction; that notices were given to the owners of the land over which the survey was made and the ditch located; that contracts were made for the construction of the ditch under the provisions of said act, and that the ditch was completed about the 8th day of July, 1894; that all the owners of the land had actual knowledge of the entry upon said lands, and the construction of the ditch, during the progress of the work; that the commissioners, at the request of A. F. Gordon, one of the appellants, and under his instructions, placed a frame culvert over the ditch at the mouth of the same, and covered it, at an additional expense of $380; that, subsequent to the construction of the ditch, the commissioners, under the provisions of the said act of 1890, assessed the lands benefited as provided in the act, and that none of the assessments were ever paid; that the cost of the construction and location of the ditch was $7,584.50. The court found that the route selected by the commissioners for the ditch was the natural and most practicable route for the drainage of the lands, and that all of the lands over which the ditch was constructed were low, wet, and swamp lands, except lots 3 and 4 of appellants, and that the ditch afforded ample facilities for the proper drainage of the lands; that all of said lands were agricultural lands, and, with proper drainage, valuable for agricultural purposes. The court assessed the damages for right of way through appellants' premises, irrespective of the benefits from the construction of said drainage ditch, and found as a conclusion of law that respondent was entitled to condemn the strip of land through appellants' premises, and that the route selected for the ditch was practicable; that necessity exists for condemnation of the right of way through appellants' premises; that the construction of the ditch is conducive to the public health, convenience, and welfare.

Appellants have objected to several material findings of fact made by the superior court as not sustained by the testimony; but after an examination of the evidence from the statement of facts, we are not disposed to disturb the findings. The compliance with the law of 1890 was substantially correct. The opportunity for appellants to be heard before the ditch was ordered constructed was given as required in the drainage law of 1890, and appellants also requested certain particular work to be done in connection with the ditch, which request was complied with by the county commissioners. No assessment was collected for the construction of the ditch, including the right of way, because the act of 1890, supra, was adjudged unconstitutional by this court in the case of Skagit Co. v. Stiles, 10 Wash. 388, 39 P. 116, following Askam v. King Co., 9 Wash. 1, 36 P. 1097. The latter case involved the right of the county to condemn lands for right of way for a ditch for drainage purposes, and it was said that, under the provisions of the law, there was no attempt to have the damages incident to taking of private property assessed and compensated for in the first instance; and, if the property owner did not appear and himself take the initiative, the law provides that his property can be taken without there being an assessment of damages, and without the payment of any compensation whatever, and therefore was in conflict with section 16 of article 1 of the constitution. In Skagit Co. v. Stiles, supra, it was further adjudged that the whole act was unconstitutional, because of the failure to provide for compensation for land taken for right of way. By the law of 1895, supra, the legislature provided for the payment of expenses incurred in substantial compliance with the act of 1890. It is, however, urged by counsel for appellants, that the legislature could not validate the unconstitutional law of 1890, and authorize the payment of expenses incurred thereunder; and it is maintained that, the law of 1890 having been adjudged unconstitutional, it was as if no law had been enacted, and that no subsequent legislation could give such invalid law any validity. But the legislature in 1895 did not attempt to give virtue to the act of 1890. It did, however, recognize a moral obligation to pay expenses incurred under the law of 1890; and this it might do, and, though an act of the...