State ex rel. Slade v. Jones

• Decision Date: 22 May 1935
• Docket Number: 25645.
• Citation: 45 P.2d 30,182 Wash. 94
• Parties: STATE ex rel. SLADE et al. v. JONES, Judge.
• Court: Washington Supreme Court

45 P.2d 30

182 Wash. 94

STATE ex rel. SLADE et al. v. JONES, Judge.

No. 25645.

Supreme Court of Washington

May 22, 1935

Department 2.

Original proceedings by the State, on the relation of G. A. Slade and wife and others, for writ of mandate to be directed to Honorable Robert M. Jones, Judge of the Superior Court of King County.

Peremptory writ denied.

F. W Loomis, of Aberdeen, amicus curiae.

G. W Hamilton and E. P. Donnelly, both of Olympia, for respondent.

HOLCOMB Justice.

This action is an original petition for a peremptory writ of mandate to compel the superior court for King county and one of the judges thereof to assume jurisdiction in an action brought in the superior court for that county against the state of Washington.

Relators commenced an action in that court alleging six causes of action for damages done to six parcels of real estate in King county owned by different plaintiffs or marital communities.

The complaint alleged that the defendant state of Washington had erected a graded highway embankment in the construction of that part of the Sunset highway lying between North Bend and Snoqualmie in King county; that in so doing the state acted in its sovereign capacity and for the benefit of the public; that in erecting the embankment the state diverted the course of Gardner creek so that the water of that creek flowed upon the lands of the several plaintiffs and flooded them to their damage.

The state entered a special appearance objecting to the jurisdiction of the superior court for King county and moved to quash service of summons on the ground that jurisdiction in such a case was vested exclusively in the superior court for Thurston county. After argument, respondent judge entered an order quashing service of summons on the sole ground that the superior court for King county was without jurisdiction.

It cannot be questioned that where the state, acting in its sovereign capacity, takes real estate without first condemning it, the owner may recover damages from the state. Great Northern Railway Co. v. State of Washington, 102 Wash. 348, 173 P. 40, L. R. A. 1918E, 987; Spokane Portland & Seattle Railway Co. v. State of Washington, 159 Wash. 529, 294 P. 231.

Relators contend that this case is controlled by our decision in State v. Superior Court for Walla Walla County, 167 Wash. 334, 9 P.2d 70. That was an injunction case in which the state highway director and employees, as such, were proceeding to change or improve a state highway in such manner that it would damage the real property of the plaintiffs, which conduct it was claimed violated their constitutional rights because no proceeding had been instituted to ascertain compensation to be paid for damages to their property. It was there held that the question of jurisdiction was controlled by that provision of the Constitution, article 1, § 16, prescribing, '* * * 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 that to determine such compensation by eminent domain proceedings the state should go to the superior court of the county where the land was located, and until the state acquired the right to do so its...