North Spokane Irrigation Dist. No. 8 v. Spokane County

• Decision Date: 25 March 1976
• Docket Number: No. 43901,43901
• Citation: 86 Wn.2d 599,547 P.2d 859
• Parties: NORTH SPOKANE IRRIGATION DISTRICT NO. 8, a Public Corporation, Petitioner, v. COUNTY OF SPOKANE, a Municipal Corporation, Respondent.
• Court: Washington Supreme Court

Page 599

86 Wn.2d 599

547 P.2d 859

NORTH SPOKANE IRRIGATION DISTRICT NO. 8, a Public Corporation, Petitioner, v. COUNTY OF SPOKANE, a Municipal Corporation, Respondent.

No. 43901.

Supreme Court of Washington, En Banc.

March 25, 1976.

Dellwo, Rudolf & Schroeder, Kermit M. Rudolf, Terry W. Martin, Spokane, for petitioner.

Donald C. Brockett, Spokane County Pros. Atty., James P. Emacio, Deputy Pros. Atty., Spokane, for respondent.

BRACHTENBACH, Associate Justice.

This is an action brought by North Spokane Irrigation District No. 8 (hereafter District) seeking compensation, under the provisions of article 1, section 16 (amendment 9) of our state constitution, for the taking and/or damaging of its property. The taking and/or damaging consists of an interference by the County of Spokane (hereafter County) with a reservation to lay down and maintain water pipes and connections in the county road Market Street. The District appeals from the judgment of the Court of Appeals which affirmed the trial court's order granting the County's motion to dismiss for failure to state a claim upon which relief can be granted. North Spokane Irr. Dist. No. 8 v. County of Spokane, 13 Wash.App. 686, 537 P.2d 291 (1975).

We reverse.

In 1906, Colborn and Morgan's Acre Park Addition (hereafter Colborn Addition) to Spokane was platted and the streets therein dedicated to the public subject to a reservation to lay down and maintain water pipes in the dedicated streets. The reservation and dedication provided:

And the said George M. Colborn and Lulu V. Colborn, his wife, and Dan'l Morgan and Jessie C. Morgan, his wife, do hereby dedicate to the public, as public highways, the streets and avenues as designated and marked upon said map. Reserving a right to lay down and maintain water pipes and connections therewith in all streets and avenues hereby dedicated to the public.

The county accepted this qualified street dedication and gave its approval to the Colborn Addition plat.

The north portion of Market Street, which is the subject of this cause of action, lies within the platted property.

In 1907, an agreement was entered into between the dedicators and Colborn and Morgan's Acre Park Water Company, a company owned and organized by the dedicators, whereby the latter agreed to supply water for domestic, lawn and irrigation purposes to the dedicators, their successors and assigns. In connection therewith, the water company installed a well and a pump and laid its pipes in the platted streets of Colborn Addition.

In 1913, the Market Street right of way was incorporated into the county road system by resolution of the county commissioners. Sometime in 1918, Market Street became a state highway route; however, the right of way reverted to the county in 1936, and Market Street has remained within the county road system since.

In 1922, the District organized and acquired title to all assets of Colborn and Morgan's Acre Park Water Company, including all rights of way, franchises and easements owned by its predecessor. The District is presently still supplying water for various purposes to the residents of Colborn Addition. At no time has the County issued a franchise to the District or its predecessor to operate and maintain the water pipes under Market Street.

In 1968, the County adopted, by resolution, an improvement program to upgrade and widen Market Street. The County scheduled the project to widen Market Street to commence in April 1971 but, because it had not completed the purchase of all rights of way required for the widening of the street, it was unable to commence the project until April 1972.

The District was notified in July 1971 of the pending construction which would necessitate the relocating of some of its pipes, hydrants and valves to prevent damage to them by vehicular traffic. At this time there was no demand by the defendant that the District commence work on the relocation of its water distribution system. However, the District opened bids for this work in August 1971, receiving a low bid of $17,438.60. In March 1972, the District received a letter from the county engineer stating that it hoped to have the improvement project under construction by April 1972. In the meantime, the initial bid lapsed and in April 1972 the District reopened bids obtaining a low bid of $25,657.65.

After the relocation work was completed, the District demanded reimbursement from the County for costs incurred. The County refused and the District commenced this action for the entire cost of relocation, or in the alternative, for the difference between the 1971 low bid and the 1972 low bid, I.e., $8,219.05.

The District contends that a reservation of a right to lay down and maintain water pipes in streets dedicated to the public is a reasonable condition to impose upon such a public dedication of property. The general rule in Washington as well as every other jurisdiction which has considered the issue, is that a dedicator may place reasonable conditions or restrictions upon a dedication of property to public purposes. Giles v. Olympia, 115 Wash. 428, 197 P. 631 (1921). See 1A Antieau, Municipal Corporation Law § 9.10 (1974); 11 E. McQuillan, Municipal Corporations §§ 33.10 (3d ed. rev. 1964). The donee, by accepting the dedication, agrees to the conditions or restrictions placed thereon. The donee cannot, however, assent to conditions which will deprive the municipality of its power to regulate and control the public streets. Neagle v. Tacoma, 127 Wash. 528, 221 P. 588 (1923). When the dedicator attempts to attach a condition to the dedication which will circumscribe the freedom of action of the authorities to devote the street to needs of the public, the condition is void, as against public policy.

The trial court and the Court of Appeals felt constrained by prior case law to hold, as a matter of law, that such a reservation is void as against public policy. State ex rel. Grinsfelder v. Spokane St. Ry., 19 Wash. 518, 53 P. 719 (1898); Bradley v. Spokane & Inland Empire R.R., 79 Wash. 455, 140 P. 688 (1914). We find, upon reviewing these cases, that such a holding is not required.

In State ex rel. Grinsfelder v. Spokane St. Ry., supra, the court, in the final sentences of its opinion stated, 19 Wash. at 532, 53 P. at 723: 'If any condition is annexed to such dedication, the condition falls, but the grant stands.' The condition referred to was a reservation for the 'exclusive right to lay street railways along the streets.' The issue before the court, however, was not the validity of dedication and reservation, but whether or not the railway company could be compelled to continue operation of its lines through a platted addition to the city. The court's conclusory statement is clearly dictum; moreover, the statement represents a misstatement of the general rule as set out in Giles v. Olympia, supra.

In finding the reservation unreasonable and void as against public policy, the Court of Appeals placed its principal reliance upon Bradley v. Spokane & Inland Empire R.R., supra. The case involved an action by the dedicator to recover possession of an undivided one-half interest of a dedicated street which the municipality had vacated. Plaintiff asserted superior title to the vacated portion of the roadway by reason of a reservation in the original plat.

'The streets and alleys as on said map named and indicated we do dedicate to the public, to be used as highways, reserving and excepting always from said dedication, to ourselves, our heirs and assigns, the rights in said streets and alleys to lay down and make use of for all lawful purposes, water and gas pipes, and electric wires, and to erect poles for said purpose, and to construct, and operate in said street and alleys, cable and motor railways, excepting also from said dedication of streets and alleys the fee of the lands therein contained to such extent as that should the same or any part thereof be vacated by proper authority, the part or parts vacated shall revert to ourselves, our heirs and assigns . . .'

Bradley 79 Wash. at 456, 140 P. at 688.

The dedicator had passed fee title to the lots abutting the dedicated street to defendants. It was plaintiff's contention that the warranty deeds passing title thereto did not pass title to the middle of the road because of the reservation in the original dedication. Judgment was for defendants. The court reasoned that it...