Peterson v. Smith

• Citation: 32 P. 1050,6 Wash. 163
• Parties: PETERSON v. SMITH ET AL.
• Decision Date: 28 March 1893
• Court: United States State Supreme Court of Washington

32 P. 1050

6 Wash. 163

PETERSON v. SMITH ET AL.

Supreme Court of Washington

March 28, 1893

Appeal from superior court, Skagit county; Henry McBride, Judge.

Petition by Harvey S. Smith and others for a change in a county road. The proposed route was declared a public highway by the county commissioners, and Peter Peterson, a landowner appealed to the superior court from an award of $50 damages assessed in his favor by the board of viewers. From a judgment confirming the order of the county commissioners Peterson again appeals. Reversed.

Moore &amp Turner, (Jas. A. Haight, of counsel,) for appellant.

Geo. A Joiner, Pros. Atty., for respondents.

DUNBAR, C.J.

This case involves the regularity of the proceedings of the county commissioners in changing a county road under the provisions of chapter 19, Laws 1890, ^[1] and also involves the coustitutionality of said act, or a part thereof. The question for our consideration is, is the power to condemn land, conferred by said law above cited, consistent with the provisions of the state constitution? Section 16, art. 1, of the constitution provides in positive terms that "no private property shall be taken or damaged for public or private use without just compensation having been first made or paid into court for the owner, and no right of way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases in courts of record, in the manner prescribed by law." The constitution also provides that, whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public. Under the constitutional guaranty, the owner of the land appropriated in this case by the county could not be compelled to present a claim for damages. He can remain quiet, and be assured that, before his property is condemned, the county must ascertain his damage, and either pay it to him, or pay it into court for his benefit; and the amount of his damages must be ascertained in a court, in a proceeding instituted...