State ex rel. Bremerton Bridge Co. v. Superior Court for Kitsap County, 27065.

• Citation: 194 Wash. 196,77 P.2d 800
• Decision Date: 28 March 1938
• Docket Number: 27065.
• Parties: STATE ex rel. BREMERTON BRIDGE CO. et al. v. SUPERIOR COURT FOR KITSAP COUNTY et al.
• Court: Washington Supreme Court

77 P.2d 800

194 Wash. 196

STATE ex rel. BREMERTON BRIDGE CO. et al. v. SUPERIOR COURT FOR KITSAP COUNTY et al.

No. 27065.

Supreme Court of Washington

March 28, 1938

Department 1.

Original certiorari proceeding by the State, on the relation of the Bremerton Bridge Company and another, against the Superior Court for Kitsap County and the Honorable E. D. Hodge, Judge thereof, to review a Superior Court order of public use and necessity in a condemnation proceeding instituted by the State.

Order affirmed.

G. W Hamilton, Atty. Gen., and L. C. Brodbeck, of Olympia, and John E. Belcher, of Tacoma, for respondents.

MAIN, Justice.

This is a proceeding in eminent domain. The State of Washington filed a petition in the Superior Court of Kitsap County to condemn the Bremerton toll bridge across Sinclair's inlet between Bremerton and East Bremerton, in that county. A hearing was had upon the petition, and an order of public use and necessity entered. To review this order, the case is here by reason of a writ of certiorari having been issued.

There was a former proceeding ( State ex rel. Bremerton Bridge Co. v. Superior Court, 76 P.2d 990), brought for the same purpose, and, when the order of public use and necessity in that case was reviewed by this court, is was held that the petition was good as against a demurrer, but that the State had failed in its proof, due to the fact that it had not offered any evidence of a bona fide attempt to settle with the owners of the property Before the filing of the petition to condemn. In that case, the order of public use and necessity was reversed without prejudice to the bringing of another action for the same purpose. In response to this another action was brought, and this is the one that is now Before us for review.

The relator Bremerton Bridge Company makes two principal contentions: (a) That the State failed to comply with the requirements of chapter 148, page 473, of the Laws of 1935 which provides for a joint detailed survey and appraisement of the property by the department of highways and the department of public works (now public service), and (b) that the State did not make a bona fide effort to agree with the owners of the property prior to the institution of this proceeding.

It may well be doubted whether the question of the joint detailed survey and appraisement is now open to the relator, in view of the fact that the petition in this case is exactly the same as in the former case, and that petition was held defective only in the one particular mentioned. Without passing upon the question of whether the petition alleges a joint survey and appraisement, we shall pass to the question of whether the relator has the right to raise this question.

Chapter 148, section 1, of the Laws of 1935, provides: 'That the Washington state highway department and the department of public works is hereby instructed to make a detailed survey and appraisement of the toll bridge from Bremerton to East Bremerton, now owned by the Bremerton Bridge Company, a corporation, for the purpose of ascertaining the true valuation of the said toll bridge for the people of the State of Washington.'

It will be admitted that this is a mandatory direction to the two state departments mentioned, and that there has not been any sufficient compliance with the statute, though it is true that sometime prior to January 26, 1937, a survey was made by the highway department. It will be noted that the statute quoted provides that the highway department and the department of public works are instructed to make a detailed survey and appraisement of the bridge in question 'for the purpose of ascertaining the true valuation of...