State ex rel. Madden v. Public Utility Dist. No. 1 of Douglas County

• Decision Date: 27 December 1973
• Docket Number: No. 42710,42710
• Citation: 517 P.2d 585,83 Wn.2d 219
• Parties: The STATE of Washington on the relation of Blaine M. MADDEN, et al., Respondents, v. PUBLIC UTILITY DISTRICT NO. 1 OF DOUGLAS COUNTY et al., Appellants.
• Court: Washington Supreme Court

Page 219

83 Wn.2d 219

517 P.2d 585

The STATE of Washington on the relation of Blaine M. MADDEN et al., Respondents, v. PUBLIC UTILITY DISTRICT NO. 1 OF DOUGLAS COUNTY et al., Appellants.

No. 42710.

Supreme Court of Washington, En Banc.

Dec. 27, 1973.

Rehearing Denied March 4, 1974.

Hughes, Jeffers & Jeffers, Richard G. Jeffers, Wenatchee, for appellants.

Blaine M. Madden, George A. Hymer, Brewster, for respondents.

UTTER, Associate Justice.

Public Utility District No. 1 of Douglas County and its commissioners appeal from a writ of mandamus compelling them to grant respondents Madden and Hymer perpetual easements. These easements were granted pursuant to RCW 54.16.220 on land acquired by appellants from respondents.

This case presents three issues: (1) whether the trial court properly ruled that a prior common law rule does not prevail over a later statute in derogation of that rule; (2) whether the trial court properly exercised its discretion in excluding testimony of appraisers; and (3) whether article 8, section 7 of the Washington State Constitution prohibits the trial court from granting respondents the easements requested in this case. We hold the trial court acted properly and affirm the entry of the writ of mandamus.

In contemplation of the construction at Azwell, Washington of the Wells Hydroelectric Project, licensed by the Federal Power Commission, appellant public utility district brought a condemnation action against land owned by respondents. The condemnation action later was settled by stipulation and judgment in United States District Court. The stipulation did not, however, either reserve an easement or mention RCW 54.16.220, hereinafter called the Hallauer Act. ¹ Within 60 days of the acquisition by appellants of the property, respondents requested a perpetual easement over the land conveyed, pursuant to the Hallauer Act. Appellant refused respondents' request, claiming that no perpetual easement was provided for expressly in the stipulation and judgment conveying the land and that, therefore, none was contemplated by the parties. It is the appellants' position that the respondents are without power to demand a perpetual easement because no right to such was reserved expressly in the stipulation and judgment by which the property was conveyed. Appellants argue that a fee simple was conveyed to it, that there were no restrictions on the deed allowing for a perpetual easement in the grantor and that, therefore, respondents are without power to require appellants to grant them a perpetual easement. They rely on the common law rule to this effect expressed in Bartlett v. Bartlett, 183 Wash. 278, 48 P.2d 560 (1935).

This argument leads to the proposition that, in a contract and deed for the sale of real estate, an earlier rule of common law controls over a later statute in derogation of the common law rule unless the statute is expressly incorporated by reference into the deed. We cannot agree.

There is no vested right in an existing law--common law or statutory--which precludes its change or repeal. Truax v. Corrigan, 257 U.S. 312, 42 S.Ct. 124, 66 L.Ed. 254 (1921); Henry v. McKay, 164 Wash. 526, 3 P.2d 145 (1931). A statute which is clearly designed as a substitute for the prior common law must be given effect. United States v. Matthews, 173 U.S. 381, 19 S.Ct. 413, 43 L.Ed. 738 (1899); Bolles v. Toledo Trust Co., 144 Ohio St. 195, 58 N.E.2d 381 (1944). Where, as here, the provisions of a later statute are so inconsistent with and repugnant to the prior common law that both cannot simultaneously be in force, the statute will be deemed to abrogate the common law. State v. Wilson, 43 N.H. 415 (1862).

It is a general rule of interpretation to assume that the legislature was aware of the established common law rules applicable to the subject matter of the statute when it was enacted. Sullivan v. Ward, 304 Mass. 614, 24 N.E.2d 672 (1939). In ascertaining the legislative intent in the enactment of a statute, the state of the law prior to its adoption must be given consideration. Peet v. Mills, 76 Wash. 437, 136 P. 685 (1913). But where, as here, a statute is plain and unambiguous, it must be construed in conformity to its obvious meaning without regard to the previous state of the common law. Northridge v. Grenier, 278 Mass. 438, 180 N.E. 226 (1932).

Appellants also contend the trial court erred in sustaining objection to the testimony of their real estate appraisers, offered as rebuttal to respondents' direct testimony that they never intended a waiver of their rights under the Hallauer Act.

' Waiver' is an intentional relinquishment of a known right, but the existence of an intent to waive that right must clearly appear in order to show a waiver. O'Connor v. Tesdale, 34 Wash.2d 259, 209 P.2d 274 (1949). The testimony which the trial court refused to admit, at most, would have demonstrated the true value of land without the grant back of a perpetual easement. It would not have shown respondents' waiver of their right to such access under the Hallauer Act. Admission of rebuttal evidence is within the trial court's discretion. W. E. Roche Fruit Co. v. Northern Pac. Ry., 184 Wash. 695, 52 P.2d 325 (1935). We find no abuse of that discretion.

Appellants next argue that the Hallauer Act violates article 8, section 7 of the Washington State Constitution which forbids a municipal corporation from giving 'any . . . property . . . to or in aid of any individual.' The appellant public utility district is a municipal corporation. Roehl v. PUD 1, 43...