Mountain States Tel. & Tel. Co. v. Boise Redevelopment Agency, No. 12676

• Court: United States State Supreme Court of Idaho
• Writing for the Court: BISTLINE; DONALDSON, C. J., SHEPARD and BAKES, JJ., and SCOGGIN
• Citation: 101 Idaho 30,607 P.2d 1084
• Parties: MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a corporation; Boise Water Corporation, a corporation; and Idaho Power Company, a corporation, Plaintiffs-Respondents, v. BOISE REDEVELOPMENT AGENCY, Defendant-Appellant.
• Docket Number: No. 12676
• Decision Date: 13 March 1980

Page 1084

607 P.2d 1084 101 Idaho 30 MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a corporation; Boise Water Corporation, a corporation; and Idaho Power Company, a corporation, Plaintiffs-Respondents,
v.
BOISE REDEVELOPMENT AGENCY, Defendant-Appellant. No. 12676. Supreme Court of Idaho. March 13, 1980.

[101 Idaho 31]

Page 1085

Gary D. Babbitt of Hawley, Troxell, Ennis & Hawley, Boise, for defendant-appellant.

Mark S. Geston of Eberle, Berlin, Kading, Turnbow & Gillespie, Boise, for plaintiffs-respondents.

BISTLINE, Justice.

The Boise Redevelopment Agency (B.R.A.) is an urban renewal agency for the City of Boise created pursuant to I.C. § 50-2001 et seq. The B.R.A. proposed a plan for a project which was approved and adopted by the City (Resolution No. 1629, March 22, 1971). The B.R.A. purchased certain contiguous lots within the project boundaries, by negotiation or condemnation, in pursuance of the plan. B.R.A. then petitioned the Ada County Highway District to vacate the streets and alleys involved.

The plaintiff utilities agreed with the B.R.A. that they would not protest the vacation proceedings and that they would relocate their facilities upon the condition that any right they might have to reimbursement for relocation costs be preserved without prejudice. The utilities relocated and thereafter requested compensation for their relocation costs from the B.R.A. and the Department of Housing and Urban Development (H.U.D.) and were denied by both.

The utilities then filed a complaint seeking a declaration of their rights under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C.A. § 4601 et seq.), the Idaho Urban Renewal Law of 1965 (I.C. tit. 50, ch. 20), and the Constitutions of Idaho and the United States. The matter was submitted on stipulations and briefs.

The district court entered a decision declaring that the utilities were entitled to reimbursement for relocation costs and that the taking of property was compensable under I.C. §§ 50-2007 and 50-2018. It held that the B.R.A. was not an agent of the state or any municipality and thus that it did not have the authority to take property without paying compensation. The court also held that it lacked jurisdiction to decide the Uniform Act claim because the Department of Housing and Urban Development was not present and because it would have [101 Idaho 32]

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to interpret a possible conflict in federal law. The B.R.A. appealed. We reverse and remand for further proceedings.

We begin our analysis by noting that this Court followed the common law rule, that utilities bear the expense of relocating their facilities in public rights of way when necessary to make way for proper governmental use of the streets, in State v. Idaho Power Co., 81 Idaho 487, 346 P.2d 596 (1959). That case discussed the rule at length:

"It is to be noted that the legislature specifically limited the use, by telegraph, telephone and electric power companies, of the public roads, streets and highways of this state 'as not to incommode the public use' thereof. I.C. §§ 62-701 and 62-705. By so limiting the use by utilities of the public thoroughfares the legislature, acting under the directive of the Constitution, Art. 11, § 13, intended a permissive use only; such is implicit in the legislation. Nor does the restriction pertain to the facilities in praesenti only, i. e., as of the time when placed in and upon the public thoroughfares. Not being so limited the restriction has application in futuro. In any case where the facilities incommode the public use of any highway, the people, under the Constitution and the legislative enactment, reserve the right to require the utilities to relocate their facilities so as not to incommode such public use. Utilities place facilities thereon under such constitutional and legislative restriction with full knowledge of such limitation. It follows that the right of utilities to the use of public thoroughfares is not and cannot be regarded as a permanent property right.

"The permissive use of public highways, which the legislature by I.C. §§ 62-701 and 62-705 accords to utilities, is in recognition of the time honored rule existing in this state, that streets and highways belong to the public and are held by the governmental bodies and political subdivisions of the state in trust for use by the public, and that only a permissive right to their use, and no permanent property right, can be gained by those using them. . . .

"The state and its political subdivisions are without power to make a valid contract permanently alienating any part of the public streets and highways or permitting a permanent encroachment or obstruction thereon limiting the use of the public thoroughfares by the public. . . .

"No right to the use of streets and highways for private purposes can be acquired by prescription as against the state or its political subdivisions . . . .

"Permissive use of a street or highway does not vest in the user a property or contractual right . . . .

"The power of the state and its political subdivisions to require removal of a nuisance or obstruction, which in anywise interferes with the public use of streets and highways cannot be questioned. . . .

"Long before the adoption of our Constitution, the people adopted the common law as the rule of decision in all cases not otherwise provided by law. Such applicability in our system of judicial interpretation remained unchanged upon adoption of our Constitution . . . .

"Under the common law a utility, placing its facilities along streets and highways, gains no property right and upon demand must move its facilities at its expense.

"(T)here is no taking of private property for public use in causing relocation of the utilities' facilities in anywise violative of the eminent domain provisions of Idaho Const. Art. 1, § 14, the injury sustained, if any, being damnum absque injuria, since 'uncompensated obedience to a regulation enacted for the public safety under the police power of the state was not [101 Idaho 33]

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taking property without due compensation.' . . . This is but a recognition of the fundamental proposition that respondents' permissive use of the public thoroughfares is subordinate to the paramount use thereof by the public." 81 Idaho at 498-501, 515, 346 P.2d at 600-603, 612 (citations omitted).

Idaho Power held unconstitutional a statute purporting to change the common law rule by requiring the Idaho board of highway directors to pay relocation costs of utilities. The statute was found to violate the prohibition against lending the credit of the state, Idaho Const. art. 8, § 2, as well as the limitation on expenditures of gasoline taxes in art. 7, § 17.

Here we are faced with a somewhat different problem. The utilities ¹ have sued the B.R.A., "an independent public body corporate and politic," I.C. § 50-2006(a), and we must decide whether that body is liable for the relocation costs here in question. We hold that it is not.

It is by now undisputed that the State in acting to remove blight and slums through urban redevelopment is acting through the police power, Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954); Alanel Corp. v. Indianapolis Redevelopment Commission, 239 Ind. 35, 154 N.E.2d 515 (1958); City of Louisville v. Thompson, 339 S.W.2d 869 (Ky.App.1960); Maryland Mortgage & Investment Co. v. State, 25 Md.App. 8, 332 A.2d 675 (1975); Wilson v. City of Long Branch, 27 N.J. 360, 142 A.2d 837 cert. denied, 358 U.S. 873, 79 S.Ct. 113, 3 L.Ed.2d 104 (1958); Palombo v. Housing Board of Review, 92 R.I. 421, 169 A.2d 613 (1961); Mumpower v. Housing Authority, 176 Va. 426, 11 S.E.2d 732 (1940); McQuillan, Municipal Corporations, § 24.563 (3d ed. 1968), and that vacating a public street to make way for a development project to relieve urban blight is a proper governmental use of the streets. Pacific Telephone & Telegraph Co. v. Redevelopment Agency of Glendale, 87 Cal.App.3d 296, 151 Cal.Rptr. 68 (1978).

Further, the State may delegate the police power to boards, commissions and agencies. Fernandez v. Alford, 203 La. 111, 13 So.2d 483 (1943); Central Maine Power Co. v. Waterville Urban Renewal Authority, 281 A.2d 233 (Me.1971); First National Bank v. Maine Turnpike Authority, 153 Me. 131, 136 A.2d 699 (1957); Bidlingmeyer v. City of Deer Lodge, 128 Mont. 292, 274 P.2d 821 (1954); Foeller v. Housing Authority, 198 Or. 205, 256 P.2d 752 (1953); City of Huntington v. State Water Commission, 137 W.Va. 786, 73 S.E.2d 833 (1953); 16A Am.Jur.2d Constitutional...