Samish River Boom Co. v. Union Boom Co.

• Decision Date: 10 September 1903
• Parties: SAMISH RIVER BOOM CO. v. UNION BOOM CO.
• Court: Washington Supreme Court

73 P. 670

32 Wash. 586

SAMISH RIVER BOOM CO. v. UNION BOOM CO.

Supreme Court of Washington

September 10, 1903

Appeal from Superior Court, Skagit County; Geo. A. Joiner, Judge.

Certiorari by the Samish River Boom Company to review a judgment dismissing its petition to condemn lands owned by the Union Boom Company, Reversed.

Million & Houser, for petitioner.

Elihu R. Sherman, for respondent.

ANDERS, J.

This is an application for a writ of certiorari to review the judgment of the superior court of Skagit county dismissing the petition of the Samish River Boom Company to condemn certain lands situate at or near the mouth of the Samish river, in said county. The sufficiency of the petition is not questioned. It is in form and substance the usual petition in condemnation cases, with the additional allegation that the petitioner is, and for a long time has been, in possession of and using the lands therein mentioned for booming purposes. The respondent answered, denying the right and the necessity of condemnation, and alleging, in substance, that it purchased the land in controversy from the state of Washington for booming purposes, that the possession of petitioner was illegal and adverse, that the petitioner was estopped by its conduct from claiming the right of a condemnor, and that respondent would have used the lands in question for booming purposes had it not been kept out of possession of the same by petitioner. After hearing and considering the testimony introduced by the respective parties, the court denied the right of the petitioner to condemn the lands described in the petition, refused 'to call a jury to assess the compensation and damages to the respondent for appropriating such property,' and dismissed the petition at the cost of petitioner. The petitioner thereupon appealed to this court, but the appeal was dismissed on the ground that the order of the court refusing to call a jury was not reviewable by appeal.

The petitioner, Samish River Boom Company, was organized and incorporated as a boom company on March 13, 1900, under laws of this state relating to the organization, management, and control of such companies; and, within 90 days after filing its articles of incorporation, it filed in the office of the Secretary of State a plat or survey of so much of the shore line of the waters of the state, and lands contiguous thereto, as it proposed to appropriate for booming purposes. Ever since the incorporation, the petitioner has been doing business as a boom company on the Samish river and the evidence shows that it handled about 20,000,000 feet of timber products during the year 1901. Its appliances for holding, sorting, and rafting logs are located partly on tide lands on the north side of the river, and extend up from the mouth of the stream about 6,000 feet. It is this strip of land, said to contain about 14 acres, that petitioner seeks to condemn. The respondent was organized as a boom company under the laws of this state on or about March 13, 1901. Its articles of incorporation and its plat or survey of appropriation were duly filed, but it has done no business as a boom company at any time since its organization. At the time the respondent was incorporated, the petitioner, as we have already said, was and ever since has been, in possession of the land in question, and using it in the prosecution of its corporate business; but the land itself, being tide land, originally belonged to the state. On May 23, 1901, the respondent purchased from the state a large tract of tide land, part of which lies on the south and the remainder on the north shore line of Samish river, and includes the strip of land occupied by the boomworks of the petitioner. It also appears from the evidence that the south shore line of the river and the north shore line not occupied by the petitioner, as well as the tide lands at the mouth of the river, are unoccupied; and according to the testimony of a witness for the petitioner who had been engaged in the logging business on Samish river both before and since the incorporation of petitioner, the south side of the river is also available for booming purposes. One of the officers of the respondent company testifies that there are more tide lands on the south side of the river than on the north, but they are shallower (that is, the water is not so deep when the tide is in); that there would be plenty of room for a boom in width, but not in depth, and that logs could not be handled there on account of sand bars in the river; that it was the intention of respondent when it purchased the tide land to utilize 6,000 feet or more on the north side of the river by catching, booming, and rafting logs; that the object in buying on both sides of the river was to regulate the passage there so that the respondent would not be interfered with by constant suits for interrupting navigation, and for the purpose of storing logs or shingle bolts in case they came down; and that its rights would be destroyed by the taking of this land by petitioner.

Our statutes authorize the incorporation of boom companies, and prescribe their powers and duties. They have power to acquire and hold, by lease or purchase, and to use and transfer, all such property as shall be necessary for carrying on the business of such corporations. They also have the right to appropriate land, shore rights, and other property necessary for corporate purposes whenever they are unable to agree with the owners of the same as to the amount of compensation to be paid therefor, and such compensation may be assessed and determined and the appropriation made in the manner provided by law for the appropriation of private property by railways. Ballinger's Ann. Codes & St. § 4378. It was the duty of the superior court, under our statute relating to eminent domain, at the preliminary hearing of the petition, to direct the sheriff to summon a jury to assess the damages which would result to the respondent by reason of the appropriation and use of the land described in the petition, if there was satisfactory proof (1) that the respondent had been duly served with the prescribed notice; (2) that the contemplated use for which this tide or shore land is sought to be appropriated is really a public use; and (3) that the property sought to be appropriated is required and necessary for the purposes of petitioner's enterprise. Ballinger's Ann. Codes & St. § 5640. It is not claimed that any party interested in this land was not served with notice of the hearing of the petition, or that the contemplated use for which the land is sought to be appropriated is not a public use. The respondent was represented by counsel at the hearing, and testimony was given in its behalf; and the proof, we think, shows beyond question that the 'contemplated use' is a public one. And whether the learned judge, in denying petitioner's request for a jury to assess respondent's damages, proceeded upon the theory that the evidence failed to establish a necessity for the proposed appropriation, is not disclosed by the record. It seems, however, to be understood by counsel for petitioner that the ruling of the court 'was based on the theory that one corporation cannot condemn the property of another corporation of like character, to be used for like purposes.' And if the decision of the court was in fact founded on such theory, it was laboring under a misconception of the law applicable to cases of this character, as we understand it. The power to take private property for public use is one of the recognized powers of sovereignty, and is inherent in the state. It is a power recognized, but not granted, by the Constitution. Mills, Em. Dom. § 1; Lake Shore, etc., Ry. Co. v. Railroad Co., 97 Ill. 506. The right to determine under what circumstances and to what extent that power may be exercised, and to provide the manner of its exercise, is vested exclusively in the Legislature. Lake Shore, etc., Ry. Co. v. Railroad Co., supra; Mills, Em. Domain, § 11. And that the Legislature never intended that property owned by a corporation should, merely by reason of such ownership, be exempt from appropriation under the law of eminent domain, is evident from the fact that, in prescribing the mode of procedure in condemnation proceedings, it provided the manner of serving corporations, as well as individuals, with notice of the time when and the place where the petition will be presented to the court. Ballinger's Ann. Codes & St. § 5638. Moreover, the Constitution of the state clearly recognizes the power of the Legislature to authorize the taking of the property of private corporations for public use, for it expressly provides that 'the exercise of the right of eminent domain shall never be so abridged or construed as to prevent the Legislature from taking the property and franchises of incorporated companies and subjecting them to public use the same as the property of individuals.' Const. art. 12, § 10. There can be no doubt that property held by a corporation simply as a proprietor may be taken for public use by another corporation having the right of eminent domain. And even property actually devoted to public use is still subject to the power of eminent domain, except that 'it cannot be taken to be used for the same purpose in the same manner,' as that would amount simply to a taking of property from one and giving it to another, without any benefit or advantage whatever to the public--an act which the Legislature is powerless to authorize. Lewis, Em. Dom. (2d Ed.) § 276; Lake Shore, etc., Co. v. Railroad Co., supra.

But while it is true that the state has power to delegate to corporations the right to take property for public use which has already been appropriated to such use,...