State v. Calkins

• Citation: 342 P.2d 620,54 Wn.2d 521
• Decision Date: 23 July 1959
• Docket Number: No. 34784,34784
• Parties: STATE of Washington, Petitioner and Relator, v. Edward CALKINS and Mae Calkins, his wife, M. E. Nelson Construction Company, a Washington corporation, Russell Hansen Warehouse Company, W. Gale Matthews, John A. Reard and Mildred E. Reard, his wife, Albert R. Drittenbass and Florence Drittenbass, his wife, Robert E. Polachek and Mary M. Polachek, his wife, Clyde Dazell, A. W. Dazell, Grant County, and Elmer Olson, Respondents, Superior Court of State of Washington for Grant County, Honorable Felix Rea, Judge, Respondent.
• Court: Washington Supreme Court

Page 521

54 Wn.2d 521

342 P.2d 620

STATE of Washington, Petitioner and Relator, v. Edward CALKINS and Mae Calkins, his wife, M. E. Nelson

Construction Company, a Washington corporation, Russell

Hansen Warehouse Company, W. Gale Matthews, John A. Reard

and Mildred E. Reard, his wife, Albert R. Drittenbass and

Florence Drittenbass, his wife, Robert E. Polachek and Mary

M. Polachek, his wife, Clyde Dazell, A. W. Dazell, Grant

County, and Elmer Olson, Respondents,

Superior Court of State of Washington for Grant County,

Honorable Felix Rea, Judge, Respondent.

No. 34784.

Supreme Court of Washington, En Banc.

July 23, 1959.

John J. O'Connell,

John K. Pain, Jr., Olympia, for petitioner.

Michael R. Donovan, Bellevue, Brodie & Fristoe, Olympia, for respondents.

FINLEY, Judge.

The state of Washington, seeking to appropriate 4.2 acres of the defendants' land, brought an action against defendants in March 1956. In June 1956, trial was had to determine just compensation, and the jury returned a verdict in the sum of $19,000. The State gave timely notice of appeal from the jury's award. On January 11, 1957, after appeal briefs had been filed by both the State and the defendants, and while the appeal was pending in the supreme court, the State sent a letter to the Grant county clerk, transmitting a warrant in the sum of $19,096.40, the amount of the jury's award, plus costs. The letter indicated that 'by the payment of this sum into court [the state] does not thereby intend to waive any of its rights to proceed by appeal or in any other manner as provided by law.' (Emphasis supplied.) The State did not take possession of the property in question.

On August 15, 1957, this court filed its opinion (State v. Calkins, 50 Wash.2d 716, 314 P.2d 449), reversing the jury's verdict and remanding the case for a new trial. In January 1958, the State filed a motion to dismiss the action for the reason that .2 acre of the defendants' property, in addition to the 4.2 acres already involved in the litigation, was needed for highway purposes, and that defendants would not agree to amend the petition on file to include the additional .2 acre. Also, on this date, the State filed a motion to withdraw the money which it had deposited into court. Thereafter, the defendants filed a motion for an order to the clerk to pay the judgment sum to the defendants. The trial court entered an order for the defendants to withdraw the money and denied the State's motion to dismiss the action.

Upon application by the State, this court granted certiorari to review the trial court's ruling.

Art. I, § 16, of the Washington State Constitution, provides, in part:

'* * * No private property shall be taken or damaged for public or private use without just compensation having first been made, or paid into court for the owner, * * *' (Emphasis supplied.)

The State argues that, since it had already served notice of appeal prior to paying the judgment into court, under the above italicized language of art. I, § 16, the money was not paid into court for the benefit of the owner. The State relies on State v. Laws, 51 Wash.2d 346, 318 P.2d 321. 322, 322 P.2d 134, wherein the court, considering a somewhat similar situation, stated:

'Under the constitution no private property shall be taken for public use without just compensation having been first made, or paid into court for the owner. In this case, was just compensation paid into court for the owner before the property was taken? The state paid the money into court, but not as just compensation for the owner. It had already appealed on the ground that the amount awarded was excessive compensation.' (Additional emphasis supplied.)

However, in the Laws case, supra, the State had proceeded further than it had in the instant case and, in fact, had actually taken possession of the property. In that case the court held that the State, by so doing, had waived any rights it might have had to appeal. The reasoning of the Laws case seems quite persuasive in the instant case; i. e., that when the State paid the money into court subsequent to serving notice of appeal, but did not take possession of the property, it did not thereby waive its right to appeal. Upon paying the money into court, under the existing circumstances, the State had no right to take possession. It had not complied with the constitutional mandate laid down in art. I, § 16, supra. The money had not been paid irrevocably to the owner as just compensation. It is also true that the defendants had no right to this money until the appeal by the State was determined and the precise amount of the award was finally ascertained.

The State paid the money into court ostensibly under authority granted by RCW 8.04.090 et seq. Respondents argue that these statutes make no provision for conditional payment; they urge that the attempt of the State to reserve rights of appeal was ineffectual. Respondents query: If this money was not paid into court for benefit of the property owners, then for whose benefit was it paid?

Under our view of the case, it certainly was not necessary for the State to pay the money conditionally. The mere fact that, prior to making the payment, the State had served notice of appeal was sufficient notice that the payment was conditional. It is no answer to say that the statutes do not provide for conditional payment: the constitution requires that the money be paid as just compensation--and this has not been done in the instant case. It is not necessary to determine why the State paid the money into court. Furthermore, we believe that the legislature clearly indicated that the State could pay the amount of the judgment into court without waiving its right to appeal. RCW 8.04.130 provides, in part:

'In the event of an appeal to the supreme court of the state by any party to the proceedings, the moneys paid into the superior court by the state pursuant to this section shall remain in the custody of the court until the final determination of the proceedings by the supreme court. * * *'

In view of the clear mandate of this statute, we are convinced that payment into court after notice of appeal has been served will not operate as a waiver of the right to appeal.

Before the trial in June 1956, a decree of public use and necessity was entered as is required by law. After the jury's award, the trial judge entered judgment entitled, Judgment and Decree of Appropriation. The portion of the judgment fixing the amount of the award provided that the State should pay $19,096.40 into the registry of the court '* * * for the owners, tenants and encumbrancers, and all other persons interested therein. * * *' The decree of appropriation provided that, upon payment into the registry of the above sum, the State '* * * shall be and become the owner in fee simple of the lands * * *' in question.

The respondents urge that, under the decree of appropriation, the title to the land vested in the State as soon as the money was paid into the registry of the court. In this connection it is urged that once a decree of appropriation is entered the relator has no right to dismiss its action.

In Public Utility Dist. No. 1 of Chelan County v. Washington Water Power Company, 43 Wash.2d 639, 262 P.2d 976, 977, the court said:

'* * * a completed action of eminent domain requires the entry of three separate and distinct judgments during the course of the proceeding. * * * [Citing cases.]

'The first is a decree of public use and necessity. * * * The second is a judgment fixing the amount of the award. The third is the final decree transferring title. * * * [Citing cases.] It is apparent, from the procedural scheme of the condemnation acts, that each, in order, is a condition precedent to the entry of the subsequent judgment or judgments.'

In the case at bar the judgment fixing the award and the final decree of appropriation were combined, but the two are still legally distinct. As was pointed out in Public Utility Dist. No. 1 of Chelan County v. Washington Water Power Company, supra, it is necessary that each of the three judgments become final before a subsequent judgment can have any effect. In the present case the judgment fixing the amount of the award was never satisfied, because the relator did not pay the money into court for the owners as the judgment required.

It is apparent then that the decree of appropriation never vested title in the State. In State ex rel. Struntz v. Spokane County, 85 Wash. 187, 147 P. 879, 880, the court stated:

'Relators contend that the entry of this judgment on the award gave them a vested right to the money to which the subsequent action of the board could not deprive them.

Under statutes such as ours, the rights of the parties are correlative. There can be no vested right in the one party until there is a vested right in the other, and, since the condemning party can obtain no vested right in the land until in has paid the award, it follows that the other party can have no vested right in the award until by its payment title to the land is vested in the condemning party. * * *' (Emphasis supplied.)

The condemning party has a right to abandon a condemnation action until title to the land vests in it. And, here, title to the land has never vested in the State.

The cause should be remanded with directions that respondents return the money to the registry of the court, and that the State shall have the right to dismiss its condemnation action. It is so ordered.

WEAVER, C. J., and MALLERY, HILL, DONWORTH, ROSELLINI, OTT and FOSTER, JJ., concur.

HUNTER, Judge (dissenting).

The following judgment was entered on the verdict against the state as an award for just compensation of certain lands sought to be taken by the state from the defendants, Edward Calkins and Mae Calkins, in condemnation proceedings, providing in part:

'Now, Therefore, in accordance with the verdict of the jury returned and entered herein on the 7th...