State ex rel. Willapa Elec. Co. v. Superior Court In and For Pacific County

• Decision Date: 26 October 1938
• Docket Number: 27299.
• Citation: 196 Wash. 523,83 P.2d 742
• Court: Washington Supreme Court
• Parties: STATE ex rel. WILLAPA ELECTRIC CO. et al. v. SUPERIOR COURT IN AND FOR PACIFIC COUNTY et al.

83 P.2d 742

196 Wash. 523

STATE ex rel. WILLAPA ELECTRIC CO. et al. v. SUPERIOR COURT IN AND FOR PACIFIC COUNTY et al.

No. 27299.

Supreme Court of Washington

October 26, 1938

Department 1.

Original action in certiorari by the State of Washington, on the relation of the Willapa Electric Company and the New York Trust Company, against the Superior Court of the State of Washington in and for Pacific County and John I O'Phelan, Judge, and others, to review an order of necessity and public use entered in condemnation proceedings brought by the Public Utility District No. 2 of Pacific County, Washington, against the relators.

Order of necessity and public use affirmed.

Welsh &amp Welsh, of South Bend, and Theodore B. Bruener, of Aberdeen for relators.

Hayden, Metzger & Blair, of Tacoma, amici curiae.

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

BLAKE Justice.

This cause comes up on certiorari to review an order of necessity and public use entered in condemnation proceedings. The action was brought by Public Utility District No. 2 of Pacific County, a duly organized and existing public utility district under chapter 1, Laws of 1931, p. 3. Vickers v. Schultz, Wash., 81 P.2d 808. The defendant (relator here) The Willapa Electric Company owns and operates plants and facilities for the generation and transmission of electricity in Pacific county, and a transmission line from Raymond to Cosmopolis. All of these properties, 'used and useful' in the operation of defendant's business of generating and distributing electric energy, plaintiff seeks to take by eminent domain.

When plaintiff applied for an order of necessity and public use, the defendants interposed ten specific objections to the entry of the order, all of which were overruled. We are asked, however, to review only seven.

First, it is urged that no adequate fund has been provided whereby the relators may be assured of payment of compensation awarded for the taking and damaging of their property. From the resolution initiating the proceedings, it appears that the district proposes to pay the compensation awarded from the proceeds of utility bonds payable out of revenues from the properties acquired. Relators argue, first, that § 7, chapter 1, Laws of 1931, p. 22, which provides for such procedure, contravenes the ninth amendment to the state constitution; and second, that, since the act does not limit the time within which an award must be paid or rejected, the failure to provide a fund out of which relators may be assured payment effects an indefinitely continuing option on their property for the amount of the award.

In support of the first contention, relators cite a number of cases, of which Connecticut River R. Co. v. County Commissioners, 127 Mass. 50, 34 Am.Rep. 338, is typical. It is, indeed, held in that case that 'the means for securing indemnity must be such that the owner will be put to no risk or unreasonable delay.' But it also appears from the opinion that ' payment need not precede the seizure.' This is not the case under the ninth amendment, which provides: 'No private property shall be taken or damaged for public * * * use without just compensation having been first made.' Under such constitutional provisions as ours, the rule is well settled that the establishment of a fund to insure payment of the compensation awarded is not a prerequisite to the maintenance of condemnation proceedings. 2 Lewis Eminent Domain, 3d Ed., § 678; State Water Supply Commission v. Curtis, 192 N.Y. 319, 85 N.E. 148; In re Dexter-Greenfield Drainage Dist., 21 N.M. 286, 154 P. 382; State Highway Commissioner v. Kreger, 128 Va. 203, 105 S.E. 217. In the case last cited, after briefly reviewing cases of the character cited by relators here, the court said [page 220]: 'It is only where the statute permits, or to the extent that it permits, the seizure and use of the property previous to the payment of the compensation that it is at all essential to the validity of the statute that it should provide any security for payment of the unpaid compensation.'

Nor do we think there is validity in the objection that, since the statute does not fix a limitation of time within which the award of compensation may be accepted or rejected, it effects an option of indefinite duration in favor of the appropriator. In the absence of such a limitation, the appropriator must elect to accept the award within a reasonable time, or it will be deemed to have abandoned the proceedings. Port Townsend Southern R. Co. v. Barbare, 46 Wash. 275, 89 P. 710; State ex rel. Moore v. Superior Court, 100 Wash. 481, 171 P. 248. In the first case above cited, the court said [page 711]: 'The private owner cannot be disturbed in his possession until the award is first paid into court for his use. The condemning party is not entitled to a decree of appropriation until the award is paid into court. The trial court would certainly not be authorized to enter a decree of appropriation upon the motion of the appropriator without the money having been first paid; nor could the court require the party seeking to appropriate to take the property against its will, especially Before the damages had become finally determined. It is true no time is fixed within which the condemning party must pay the award. It must, therefore, do so within a reasonable time, or be held to have abandoned the proceedings.'

The incidental inconvenience which the property owner may suffer in the meantime is deemed compensated, in case of acceptance, by interest on the award from date of verdict, and in case of rejection, by the retention and enjoyment of his property. North Coast R. Co. v. Aumiller, 61 Wash. 271, 112 P. 384.

The next objection urged is directed to § 4 of the resolution adopted by the commissioners of the utility district, authorizing its attorneys to institute and prosecute condemnation proceedings. Section 4 in substance authorizes the attorneys, in order to minimize damages and avoid excessive awards of compensation, to determine what items of the 'plants and facilities are used or useful and should * * * be taken.' When the contention was made in the lower court that this section delegated legislative power of the district to its attorneys, the commissioners met and passed a resolution eliminating the section. The latter resolution was offered in evidence. It is urged that the commission had no power to so change the original resolution, and that the court erred in receiving in evidence the modifying resolution. The original resolution was attached to and made a part of the petition. The modifying resolution amounted to nothing more than an amendment of the petition, which, obviously, the plaintiff had the right to make and the court had the power to permit. The amendment did not change the fundamental purpose of the action, which is to acquire all the plants and facilities in Pacific county, 'used and useful' in the maintenance and operation of relator The Willapa Electric Company's business of generating and distributing electricity.

The relators further contend that the petition is defective, in that it does not contain a sufficient description of the property sought to be condemned. As we have stated, the resolution authorizing the institution of condemnation proceedings is attached to and made a part of the petition. The resolution authorizes the condemnation of '* * * the existing works, plants and facilities used or useful for the generation, transmission and distribution of electricity now operated by the Willapa Electric Company, a Washington corporation, in Pacific County, Washington, including a certain transmission line extending from Raymond in Pacific County to Cosmopolis in Grays Harbor County. Said works plants and facilities to be so acquired comprise an existing generation, transmission and distribution system, and include the following: * * *' Then follow eight sub-paragraphs, describing specifically the character of the items of property sought to be condemned, including a detailed description of real estate. We think the property sought to be condemned is described with reasonable certainty, and this is all that is required. Rem.Rev.Stat. § 9218; Chehalis v. Centralia, 77 Wash. 673, 138 P. 293. We do not see how the description could be made more specific except by a complete inventory of the property sought to be condemned. That is not required at this stage of the proceedings. Nor do we...