State ex rel. Washington Water Power Co. v. Superior Court for Grant County

• Decision Date: 25 March 1941
• Docket Number: 28220.,28219
• Citation: 8 Wn.2d 122,111 P.2d 577
• Parties: STATE ex rel. WASHINGTON WATER POWER CO. et al. v. SUPERIOR COURT FOR GRANT COUNTY et al. SAME v. SUPERIOR COURT FOR DOUGLAS COUNTY et al.
• Court: Washington Supreme Court

111 P.2d 577

8 Wn.2d 122

STATE ex rel. WASHINGTON WATER POWER CO. et al. v. SUPERIOR COURT FOR GRANT COUNTY et al.

SAME v. SUPERIOR COURT FOR DOUGLAS COUNTY et al.

Nos. 28219, 28220.

Supreme Court of Washington

March 25, 1941

Department 2.

Consolidated certiorari proceedings by the State of Washington, on the relation of the Washington Water Power Company and others against the Superior Court of the State of Washington for Grant County, the Honorable E. W. Schwellenbach, Judge, and against the Superior Court of the State of Washington for Douglas County, the Honorable E. W. Schwellenbach, Judge, to review the actions of the superior courts in eminent domain proceedings wherein orders of public use and necessity were entered.

Orders affirmed.

Houghton Cluck & Coughlin, of Seattle, and E. K. Murray, of Tacoma for respondents.

SIMPSON Justice.

This proceeding is by way of writs of certiorari to review the actions of the superior courts of Grant and Douglas counties in eminent domain proceedings.

December 20, 1939, Public Utility District No. 2 of Grant County instituted eminent domain proceedings for the purpose of condemning plants, lines and facilities used for the distribution of electric current, these being the property of the Washington Water Power Company. The property was situated in Grant county, with certain distribution lines extending into Douglas and Lincoln counties.

December 21, 1939, Public Utility District No. 1 of Douglas County instituted eminent domain proceedings for the purpose of condemning like property owned by the company and located in Douglas county.

Demurrers were interposed by respondents in each action. Applications for orders of public use and necessity were brought on for hearing and by agreement of court and counsel the causes were consolidated for hearing upon the demurrers and for trial. After the trials were concluded, the court overruled the demurrers and entered orders of public use and necessity in each case. Thereafter the owners of the property applied to this court for a writ of review, which was issued September 11, 1940.

We will refer to the company as relator and to the districts as respondents.

The principal question raised in each of the eminent domain proceedings is the same, and the cases have been consolidated for our consideration.

The facts necessary to a determination of these cases are as follows: The Washington Water Power Company is a large concern engaged in generating electric energy and distributing it in many places throughout eastern Washington. It owns, as a part of the system, plants, transmission lines, and distribution lines in Grant, Douglas, and Lincoln counties.

The commissioners of the public utility districts in the counties of Grant and Douglas decided to acquire the properties of the relator for the purpose of distributing electric energy, and to that end passed appropriate resolutions seeking to condemn the properties, including certain franchises owned by the company. The franchises sought to be condemned are non-exclusive franchises held by the company, giving it the right to construct and maintain transmission and distribution lines along and upon the public highways, roads and city streets within the two counties.

Two questions are presented in this proceeding: (1) Do the resolutions of the two districts comply with the statutory provisions contained in Rem.Rev.Stat. § 11611? (2) Does the public utility district have the right to condemn non-exclusive franchises owned by a private public utility corporation, permitting the company to construct and maintain transmission and distribution lines over, along, and upon the public highways, roads and city streets within the territorial limits of the public utility district?

We will discuss the sufficiency of the resolution first. The public utility districts concerned in this litigation were formed, and have sought to function, as active organizations under and by virtue of our Water Power Utility District Act, Initiative to the Legislature No. 1, passed by the people November 4, 1930, chapter 1, Laws of 1931, Rem.Rev.Stat. §§ 11605-11616, which sets out in detail the rules governing the formation of districts and the manner in which their elected commissioners may proceed to acquire the property of privately owned public utilities.

The attacked portions of the resolutions passed by the commissioners of each district are essentially the same, and read as follows:

'D. For the purpose of converting the foregoing works, plants and facilities into an efficient and economical electric system, and of severing the same from the remaining works, plants and facilities of said company where necessary, the District shall construct and install any and all necessary and convenient lines and equipment, and acquire any and all necessary lands, franchises, easements, permits, rights of way and other rights and privileges therefor.

'E. The District at its election shall make and enter into a contract or contracts for the purchase by the District of electricity at wholesale with said company and/or such other private and public corporations, agencies and persons as may have the same available for sale.'

Relator contends that the resolutions are deficient in that they do not indicate the source from which the electricity will be purchased and the place where it will be brought to the system sought to be acquired.

Section 7 of the act, Rem.Rev.Stat. § 11611, provides: 'Whenever the commission shall deem it advisable that the public utility district purchase, purchase and condemn, acquire, or construct any such public utility, or make any additions or betterments thereto, or extensions thereof, the commission shall provide therefor by resolution, which shall specify and adopt the system or plan proposed, and declare the estimated cost thereof, as near as may be, * * *.'

Section 11 of the act, Rem.Rev.Stat. $ 11615, provides: 'The rule of strict construction shall have no application to this act, but the same shall be liberally construed, in order to carry out the purposes and objects for which this act is intended.'

The standard to be followed in ascertaining whether a plan or system resolution is sufficiently definite to meet the requirements of the statute is that the plan or resolution shall contain a 'reasonably accurate description' of the property to be taken.

This question was Before the court in Langdon v. Walla Walla, 112 Wash. 446, 193 P. 1, 9, and in discussing it we stated: 'Some contention is made in appellant's behalf that the proposition was not properly submitted to the voters, because 'no sufficient plan or system is set forth therein as required by law.' The only requirement of the statute in this regard (section 8006, Rem. Code) is that the 'corporate authorities shall provide therefor by ordinance, which shall specify and adopt the system or plan proposed, and declare the estimated cost thereof as near as may be.' We think it is contemplated by the statute that the system and plan proposed need be specified only in such general terms as will fairly inform the voters of the general nature and extent of the proposed improvements, and that this ordinance sufficiently does so, by the specification of the system and plan, as summarized near the beginning of this opinion. Our decisions in Seymour v. Tacoma, 6 Wash. 138, 32 P. 1077, and Paine v. Port of Seattle, 70 Wash. 294, 126 P. 628, 127 P. 580, support this conclusion.'

It will be noted that the direction to the city council contained in the statute interpreted in that case relative to specifying the system or plan proposed is worded the same as the direction in the water power utility district act.

Again, in State ex rel. Willapa Electric Co. v. Superior Court, 196 Wash. 523, 83 P.2d 742, we determined that property sought to be condemned should be described with 'reasonable certainty.' It is not necessary that the public utility district outline in definite detail the entire plan of operation by which it proposes to conduct the business of the system acquired. Matthes v. Ellensburg, 73 Wash. 272, 131 P. 839, 841. To do so would, in many cases, be impractical, and in others impossible. All that is necessary is that the general plan or system be specified and described with reasonable certainty.

The case of Mattews v. Ellensburg, supra, has an important bearing upon the problem Before us. In that case we recognized that the matter of securing a supply of water and the acquisition of the distribution system might be covered in separate and distinct plan and system resolutions. The city in that case had adopted a plan and system ordinance which provided for the digging of wells and the obtaining therefrom a source of water supply. The city did not at that time own any water distribution system and no provision was made for its acquisition or construction. The contention was made that this situation rendered the ordinance defective for uncertainty. This court, in deciding that question, stated: 'It is true the ordinance which adopted the supply system also stated that it was further proposed that a supply plant would be connected with a distributing system located within the limits of the city which is to be construsted by said city by local assessment upon the property specially benefited thereby. But that clause in the ordinance was for the information of the voters and was not necessary to the validity of the supply system which was provided for. The supply system was to be a completed system within itself for that purpose, and the distributing system was to be provided for in another method entirely consistent with the powers and duties of the city.'

Accord, Seymour v. Tacoma, 6 Wash. 138, 32 P. 1077, ...