Olympia Light & Power Co. v. Tumwater Power & W. Co.

• Decision Date: 28 October 1909
• Court: Washington Supreme Court
• Parties: OLYMPIA LIGHT & POWER CO. v. TUMWATER POWER & WATER CO.

104 P. 778

55 Wash. 392

OLYMPIA LIGHT & POWER CO. v. TUMWATER POWER & WATER CO.

Supreme Court of Washington, En Banc.

October 28, 1909

Appeal from Superior Court, Thurston County; O. V. Linn, Judge.

Condemnation proceedings by the Olympia Light & Power Company against the Olympia Brewing Company, in which the Tumwater Power & Water Company, intervened. From an order dismissing intervener's complaint, it appeals. Appeal dismissed.

1. EMINENT DOMAIN (s 253*)--PROCEEDINGS--APPEAL--JUDGMENTS APPEALABLE--JUDGMENT OF DISMISSAL.

Under Ballinger's Ann. Codes & St. s 5645, permitting either party in condemnation proceedings to appeal to the Supreme Court on the propriety and justness of the damages awarded the original party could not appeal until damages were awarded, and an intervener occupies the same position, and hence cannot appeal from an order dismissing its complaint in intervention, either under the above section or under the general statute relating to appeals.

[Ed Note.--For other cases, see Eminent Domain, Dec. Dig. s 253.*]

* For other cases see same topic and section NUMBER in Dec. Am Digs. 1907 to date, & Reporter Indexes

2. CERTIORARI (s 4*)--NATURE--EXISTENCE OF OTHER REMEDY.

A writ of review is granted upon the theory that a nonappealable order has been entered depriving a party of a valuable right which would leave him without remedy unless certiorari was granted.

[Ed. Note.--For other cases, see Certiorari, Cent. Dig. s 4; Dec. Dig. s 4.*] Rudkin, C.J., and Fullerton, Gose, and Chadwick, JJ., dissenting.

* For other cases see same topic and section NUMBER in Dec. Am. Digs. 1907 to date, & Reporter Indexes

G. C. Israel, Martin L. Pipes, George H. Funk, and Frank C. Owings, for appellant.

T. N. Allen and Troy & Falknor, for respondent.

CROW J.

This action was commenced by the Olympia Light & Power Company, a public service corporation, in the superior court of Thurston county, under the eminent domain act, against the Olympia Brewing Company, a corporation, to condemn certain water rights and an easement. The defendant affirmatively alleged that it was the owner in fee of the property sought to be condemned; that on July 9, 1907, the Tumwater Power & Water Company, a public service corporation, was incorporated and organized under the laws of the state of Washington for the purpose of furnishing the municipality of Tumwater, its inhabitants, and others without the corporate limits of Tumwater, with water for drinking, irrigation, and domestic purposes, and with electric lights for light and power purposes; that, prior to the commencement of this action, the defendant leased the use and enjoyment of the water power and easement to the Tumwater Power & Water Company, and placed it in possession thereof; and that it was a necessary party to the determination of the issues herein. Upon permission first obtained by order of court, the Tumwater Power & Water Company filed its complaint in intervention, setting up its rights to the water power and easement, as lessee of the Olympia Brewing Company, alleging that it had devoted the same to a prior public use; that it held, by assignment, a franchise from the town of Tumwater, granting it the use of streets and alleys for laying mains and supplying the inhabitants of the town with water, and also the right to supply them with electricity for lighting, heating, and power purposes, and asked that the petition be dismissed. The petitioner interposed separate demurrers to the answer and complaint in intervention, which being sustained the intervener declined to plead further, and an order was entered dismissing its complaint in intervention. From this order it has appealed.

The respondent has moved to dismiss the appeal. This is a condemnation proceeding. It is prosecuted under the eminent domain act, a special statute defining procedure in such cases, and authorizing an appeal, for the sole purpose of presenting to this court the question of the propriety and justness of the amount of damages in respect to the parties to the appeal. Section 5645, Ballinger's Ann. Codes & St. No damages have yet been awarded, and it is evident that no appeal authorized by the eminent domain act could be prosecuted by an original party from the order here involved. In Western American Company v. St. Ann Company, 22 Wash. 158, 60 P. 158, this court held that on an appeal in condemnation cases prosecuted under the eminent domain act no question other than the amount of damages can be raised or considered, and that the general statutes pertaining to appeals do not apply. There the appellant attempted to prosecute an appeal for the purpose of obtaining the review of an order adjudging a public use, and holding that the petitioner was authorized to exercise the right of eminent domain, but the appeal was...