Neitzel v. Spokane Intern. Ry. Co.

• Citation: 117 P. 864,65 Wash. 100
• Parties: NEITZEL et al. v. SPOKANE INTERNATIONAL RY. CO. et al.
• Decision Date: 14 September 1911
• Court: United States State Supreme Court of Washington

117 P. 864

65 Wash. 100

NEITZEL et al. v. SPOKANE INTERNATIONAL RY. CO. et al.

Supreme Court of Washington, En Banc.

September 14, 1911

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by A. Neitzel and others against the Spokane International Railway Company and another. From a judgment sustaining a demurrer to the complaint and dismissing the action plaintiffs appeal. Reversed and remanded.

Hoffman & Bailey and Joseph Rosslow, for appellants.

Allen &amp Allen and Cannon, Ferris, Swan & Lally, for respondents.

CROW J.

This action was commenced by A. Neitzel, Joe Neitzel, J. F Thielmann, and Hannah Thielmann, his wife, against the Spokane International Railway Company, a corporation, and Benham & Griffith Company, a corporation, to recover lots 12 and 13 in block 4 of River Front addition to Spokane, and for damages. Plaintiffs elected to stand upon their complaint, to which a demurrer was interposed and sustained, and have appealed from a judgment of dismissal.

The complaint in substance alleges that respondent Spokane International Railway Company, hereinafter mentioned as railway company, is a public service corporation, existing under the laws of Washington and organized for the purpose of constructing, maintaining, and operating a railroad from the city of Spokane, one of its termini; that appellants at all times since June 29, 1903, have owned the lots, and have been and are now entitled to their possession; that on June 5, 1905, the railway company commenced an action in the superior court of Spokane county to condemn the lots, and in its petition alleged: 'That it is essential for the operation of its lines of railway and the accommodation of the public using the same that it acquire these lands (description) for use of its right of way for the lines of its said railway and for necessary side tracks, depot grounds, and terminal yards; * * * that in the construction and operation of said line of railway it is requisite and necessary for your petitioner to take and use as a part of its right of way, for the line of its railway, and for necessary side tracks, depots, and other appurtenances to said railroad the whole of said lands belonging to the defendants;' that thereafter and in due course of procedure an order was entered which, in part, reads as follows: 'It is considered, ordered and adjudged that those certain premises described in the petition herein (description) are required by the petitioner for the construction of its railway line, and that the use for which said premises are sought to be taken is a public use, and that the public interest requires the prosecution of the enterprise projected by the plaintiff, and that the premises hereinbefore described are necessary for the purposes of such enterprises;' that later a jury was impaneled to assess damages, and a judgment of appropriation was entered, describing the lots taken, which judgment in part reads as follows: 'It is considered, ordered, and adjudged that the above-described real estate shall be and the same hereby is appropriated to the corporate purposes of the petitioner, the Spokane International Railway Company, and that the legal title thereto shall be and the same hereby is vested in the said Spokane International Railway Company;' that the railway company acquired various other lots in the same locality for the development of its plans for depot grounds, station grounds, terminals, private warehouse grounds, and side tracks, according to a general purpose which at the time of condemnation was not known to appellants; that it intended to use appellants' lots for a private warehouse site, and not for a public use; that it has built a freight depot, constructed side tracks, and commenced preparations for its passenger depot, but has set aside a large portion of the lands obtained by it for private warehouse sites; that after acquiring lands for terminal grounds the railway company leased portions thereof to wholesale dealers who, with one exception, have constructed private warehouses thereon; that it leased to Benham & Griffith Company, for the term of 25 years, a portion of said lands, including all of lots 12 and 13; that Benham & Griffith Company has erected a warehouse thereon, and since October 1, 1906, has exclusively occupied the lots in conducting its private business as a wholesale grocer; that lots 12 and 13 are reasonably worth $30,000; that since 1906 their rental value has been $1,800 per annum; that at the time of the condemnation appellants maintained a building on the lots, in which they operated a broom factory; that the condemnation took the building, as well as the lots; that the railway company has removed the building; that appellants are unable to determine that portion of the damages awarded by the jury for the building separate and apart from that awarded for the lots; that they are ready, willing, and able to refund to the railway company such proportion of the damages awarded them as the court may determine to be just, equitable, and proper; that the railway company has never devoted the lots to any public use, nor does it intend to do so, but that it intends to continue the private use to which they are now put; that in the condemnation proceedings the railway company did not disclose its true plans, intentions, and purposes, but kept them secret, thereby deceiving appellants and the court; that appellants did not learn of the fraud thus practiced until some time in June, 1907; and that the railway company and Benham & Griffith Company, its lessee, now hold the lots, depriving appellants of the same, in violation of section 16, art. 1, of the state Constitution. The prayer of the complaint is (1) for possession, (2) for damages for withholding possession, and (3) that the condemnation proceedings be declared null and void.

Calling attention to the third subdivision of the prayer, respondents insist this action is an attack on the condemnation judgment, necessarily collateral, as the allegations of the complaint are not sufficient to show a direct attack; that other relief which appellants demand cannot be awarded without a vacation of the judgment, which could be obtained by direct attack only; that the judgment is valid, subsisting, of full force and effect, and that it has adjudged and decreed the property was taken for a public use to which it is now devoted. Assuming, without deciding, that a collateral and not a direct attack is made upon the judgment, the complaint nevertheless must be sustained as against the demurrer, if it contains allegations sufficient to state a cause of action consistent with the judgment, which will entitle the appellants to other relief. In other words, accepting the judgment as valid and of full force and effect, if a cause of action has accrued to appellants since its entry, which will entitle them to regain possession and recover damages, and such cause of action is stated in the complaint, the demurrer could not be sustained. For reasons hereinafter stated, we conclude the complaint is good as against the demurrer, and will therefore refrain from any discussion of the issue of direct or collateral attack. Nor do we think the complaint shows the condemnation judgment to be a former adjudication of all causes of action pleaded by appellants. It unquestionably appears from the complaint that the lots were condemned and taken for an adjudged public use, but it does not appear that the particular use to which they are now devoted was, in the condemnation petition or proceeding, alleged or adjudged to be public. If, therefore, the use to which they are now devoted be not public, the question arises whether respondents may continue holding them for a private use, or whether appellants may recover possession.

The vital questions on this appeal are: (1) What title or interest vested in the railway company? (2) Having condemned for a public use, has the railway company abandoned such use? And (3) if it has and intends to continue such abandonment by devoting the lots to a private use only, are appellants entitled to maintain this action?

The power of eminent domain, which is necessarily inherent in the federal and state governments as an incident of sover-eighty can only be exercised by subordinate agencies when expressly granted within constitutional limitations, through the medium of legislative enactment. When a Legislature delegates to any subordinate agency, such as a municipality or a public service corporation, the right and authority to exercise the power of eminent domain, it ordinarily defines the estate or interest to be appropriated, having power to authorize the taking of a complete fee-simple title, a qualified fee, or an easement only. When it has prescribed by statute the extent of interest to be vested, none further can be taken. Courts, in construing statutes which grant the power and authorize the taking of a certain estate or interest, enforce the rule of strict construction, permitting no greater title or interest to vest than has been expressly authorized or may be necessary to the contemplated public use. When an easement will be sufficient, no intendment or rule of liberal construction will be indulged to support an attempt to obtain any greater interest or estate. Section 8740, Rem. & Bal. Code, authorizes and empowers a railway company to appropriate by condemnation land or any interest therein which may be necessary for the line of its railroad, not exceeding 200 feet in width, and to appropriate sufficient additional land for necessary side tracks, depots, and water stations, and the right to conduct water thereto by aqueduct, and for yards, terminal, transfer, and switching grounds, docks and warehouses required for...