State ex rel. Olcott v. Hawk

• Decision Date: 25 July 1922
• Citation: 105 Or. 319,208 P. 709
• Parties: STATE EX REL. OLCOTT ET AL. v. HAWK ET AL.
• Court: Oregon Supreme Court

208 P. 709

105 Or. 319

STATE EX REL. OLCOTT ET AL. v. HAWK ET AL.

Supreme Court of Oregon

July 25, 1922

Appeal from Circuit Court, Hood River County; Fred W. Wilson, Judge.

Proceeding to condemn land by the State of Oregon, on the relation of Ben W. Olcott and others, constituting the State Board of Fish and Game Commissioners, against A. D. Hawk, Lucy M Hawk, H. B. Van Duser, and S. S. Mohler and wife. From a judgment giving them insufficient relief, the defendant Mohler and wife appeal. Reversed.

This is a condemnation proceeding commenced on October 14, 1919, by the state of Oregon against defendants to appropriate 10.70 acres of land, more or less, together with an easement or right to use a certain road leading thereto situated in Hood River county, for use in connection with the propagation hatching, and feeding of salmon and other food fishes under the supervision of the board of fish and game commissioners. The proceeding was instituted upon the relation of Ben W Olcott, I. N. Fleischner, F. M. Warren, Marion Jack, and C F. Stone, constituting the state board of fish and game commissioners. The complaint is in the usual form, detailing facts showing that the property desired to be appropriated is for a public use. It is alleged, inter alia, that the defendant A. D. Hawk is the owner of the real property; that defendant Lucy M. Hawk is his wife; that the defendants S. S Mohler and H. B. Van Duser claim some title or interest in the real property; that it is necessary for the state of Oregon to acquire and own the land described in the complaint for the purpose mentioned together with the easement; and that the Oregon state board of fish and game commissioners has heretofore decided and declared such necessity and requested the Attorney General to prosecute this action for the condemnation and acquisition of the property. The land is specifically described, and it is charged that the board had attempted to agree with Hawk for the purchase of the land and had offered him $100 per acre therefor, but had been unable to reach an agreement. The defendant H. B. Van Duser was not served with a summons and never appeared in the case. Defendant Hawk defaulted.

The defendant S. S. Mohler interposed a demurrer to the complaint upon the grounds that there is a misjoinder of parties defendant, and that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled.

The issues tendered by the defendants Mohlers in their answer, as stated in defendants' brief, are in substance as follows: (1) That they are the owners in fee simple of 3 1/2 acres, being a portion of the lands described in the complaint together with adjoining lands. (2) That at the commencement of the action the plaintiff had no authority to invoke the exercise of the power of eminent domain nor authority to declare the existence of any public necessity for the acquisition of the property. (3) That there was no law of the state declaring that lands for use in the maintenance of hatcheries and feeding stations in the propagation of fish were necessary for the use of the public. (4) That after the commencement of the action the law creating the board of fish and game commissioners was repealed, and whatever rights it may have had prior thereto were thereby terminated, and there had been no finding of necessity by any subsequent board for the acquisition of the lands sought to be condemned. (5) That the lands owned by the defendants Mohlers are located on the banks of Herman creek, are supplied with an ample flow of clear cold water, are available and adaptable for the establishment and maintenance of a commercial fish hatchery, and are of the reasonable value of $10,000, and if taken the remaining lands will be rendered useless. (6) That the defendants had no interest in common with the owners of the remainder of the tract sought to be condemned; and that the damages of defendants cannot be ascertained in this proceeding, and therefore there is a defect of parties defendant.

The evidence tended to show that about January 2, 1919, defendant Mohler commenced negotiations for the purchase of a portion of the land in question from defendant Hawk. After the institution of this action, about November 10, 1919, a deed therefor from Hawk and wife to Mohler was executed and thereafter recorded in Hood River county.

The question of damages was tried before the court and a jury. The jury rendered a verdict assessing Hawk's damages in the sum of $399.75 and assessing Mohler's damages in the sum of $750. The court awarded Mohler costs and disbursements $29.80, and the further sum of $300 as reasonable attorney's fees in the action. A warrant having been drawn by the secretary of the state of Oregon on the state treasurer for the sum of $1,079.80 for damages, attorney's fees, and costs in favor of defendants Mohler and wife, the court entered the usual judgment of appropriation. Defendants S. S. Mohler and wife appealed.

Arthur I. Moulton, of Portland (Wm. P. Lord, of Portland, on the brief), for appellants.

W. S. Moore, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., on the brief), for respondents.

BEAN, J. (after stating the facts as above).

It is contended on behalf of defendant Mohler that the demurrer to the complaint raises the question whether the board of fish and game commissioners has authority to exercise the power of eminent domain; and that the act creating the board of fish and game commissioners did not declare the propagation of fish a public use. It should be noted at the outset that the plaintiff, state of Oregon, is exercising the power of eminent domain, and not the board of fish and game commissioners. The action is instituted by the state upon the relation of the board.

Section 7089, Or. L., so far as material here, provides as follows:

"Whenever it is necessary that the state of Oregon shall require any real property, water, water courses, and water and riparian rights, or any right or interest therein, for any public use, the necessity for such acquisition to be decided and declared in the first instance by the state board of commissioners, trustees, or other state board having direction of the state institution or department for which the real property, * * * or interest therein is desired, * * * if the owner thereof and said board having direction of the state institution or department for which the same is sought to be acquired, * * * cannot agree upon the price to be paid for the amount of, or interest in his said real property, * * * required for such public use, and the damages for the taking thereof, said board of commissioners, * * * may and is hereby authorized to request the Attorney General to, and he shall when so requested, commence and prosecute in any court of competent jurisdiction, in the name of the state of Oregon, any necessary or appropriate suit, action or proceeding for the condemnation of said amount of or interest in said real property, * * * required for said purposes, and for the assessment of the damages for the taking thereof. * * * The procedure in said suit, action or proceeding shall be, as far as applicable, the procedure provided for in and by the laws of this state for the condemnation of land or rights of way by public corporations or quasi public corporations for public use or for corporate purposes. * * *"

As we understand the argument and briefs of counsel on behalf of the answering defendants, it is not claimed that the use for which the real property is sought to be condemned is not a public one. It is urged on behalf of defendants that--

"Section 7089, Or. L., does not declare that land for use for hatcheries in the propagation of fish is necessary for the use of the public."

The power of eminent domain is inherent in the state, yet it lies dormant until called into exercise by express legislative authority. Cooley's Constitutional Limitations (5th Ed.) p. 666; 1 Lewis, Eminent Domain (3d Ed.) § 367; 3 Dillon, Municipal Corpn. (5th Ed.) § 1024; Bridal Veil Lbr. Co. v. Johnson, 30 Or. 205, 46 P. 790, 34 L. R. A. 368, 60 Am. St. Rep. 818; Cincinnati v. Louisville, etc., Ry. Co., 223 U S. 390, 400, 32 S.Ct. 267, 56 L.Ed. 481; In re Poughkeepsie Bridge Co., 108 N.Y. 483, 15 N.E. 601; Tacoma v. State, 4 Wash. 64, 29 P. 847; Healy v. City of Delta, 59 Colo. 124, 125, 147 P. 662; Water Works Co. v. Burkhart, 41 Ind. 364.

When the power to take private property for public use has been conferred by the Legislature, it rests with the grantee to determine whether it shall be exercised, and when and to what extent it shall be exercised, provided, of course, that the power is not exceeded or abused. Courts cannot inquire into the motive which actuated the authorities, or enter into the propriety of constructing the particular improvement. 1 Lewis, Eminent Domain (3d Ed.) § 370.

The question, what is a public use? is always one of law. Deference will be paid to the legislative judgment as expressed in enactments providing for an appropriation of property, but it will not be conclusive. Cooley's Constitutional Limitations (5th Ed.) p. 666.

The question of whether a proposed use is a public one is for the courts to determine as a question of fact. Bridal Veil Lbr. Co. v. Johnson, 30 Or. 205, 209, 46 P. 790, 34 L. R. A. 368, 60 Am. St. Rep. 818; Apex Transp. Co. v. Garbade, 32 Or. 582, 587, 52 P. 573, 54 P. 367, 882, 62 L. R. A. 513.

"Once authority is given to exercise the power of eminent domain, the matter ceases to be wholly legislative. The executive authorities may then be allowed to decide whether the power will be invoked and to what extent, and the judiciary must decide whether the statute authorizing the taking violates the constitutional rights of any

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