State v. Public Utility Dist. No. 1 of Clark County

• Decision Date: 18 February 1960
• Docket Number: No. 34727,34727
• Citation: 55 Wn.2d 645,349 P.2d 426
• Parties: STATE of Washington, Appellant, v. PUBLIC UTILITY DISTRICT NO. 1 OF CLARK COUNTY, Washington, a municipal corporation, and V. M. Cleaveland, its general manager, Respondents.
• Court: Washington Supreme Court

Page 645

55 Wn.2d 645

349 P.2d 426

STATE of Washington, Appellant, v. PUBLIC UTILITY DISTRICT NO. 1 OF CLARK COUNTY, Washington, a municipal corporation, and V. M. Cleaveland, its general manager, Respondents.

No. 34727.

Supreme Court of Washington, En Banc.

Feb. 18, 1960.

John J. O.'Connell, Atty. Gen., Delbert W. Johnson, John K. Pain, Jr., Asst. Attys. Gen., Brockman Adams, Max R. Nicolai, Sp. Asst. Attys. Gen., for appellant.

D. Elwood Caples, Bates & Burnett, Vancouver, for respondents.

Metzger, Blair & Gardner, Tacoma, amicus curiae.

WEAVER, Chief Justice.

The state of Washington appeals from a judgment of $20,999.69 entered in favor of respondent Public Utility District No. 1 of Clark county, a municipal corporation.

The sole question is this: Is appellant or respondent liable for the cost of removal and relocation of certain public utility facilities, the removal and relocation of which resulted from the state's construction of a limited-access highway within the corporate limits of Vancouver, Washington?

It appears, from numerous maps in evidence, that the freeway, which begins at the northerly terminus of the interstate bridge of Vancouver and extends northerly through the city approximately one and one-half miles, does not follow the course of any existing street. It does, however, cut across numerous city streets that extend from east to west. Thus, the freeway divides the city into two parts; communication between them by motor vehicle or pedestrial traffic is carried by four overpasses.

April 5, 1921, the city of Vancouver, pursuant to authority delegated to it by the state (RCW 80.32.010), granted a franchise to Northwestern Electric Company, a corporation, its successors and assigns. The franchise permitted the erection, construction, maintenance, and operation of an electric light, heat, and power distribution system 'through, over, under and upon streets, alleys and highways' in the city of Vancouver for a period of fifty years.

The ordinance granting the franchise provided, among other things, that

'The City of Vancouver, by its properly constituted authorities shall have the right to cause said grantee, its successors or assigns to move the location of any pole or arc light whenever the removal thereof shall be deemed for the public convenience, and the expense thereof shall be paid by the said grantee, its successors or assigns.

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'At all times the power and right reasonably to regulate in the public interests the exercise of the franchise and right so granted shall remain and be vested in the Council.' (Italics ours.)

The ordinance also provided that

'Whenever it shall be necessary in grading or sewering or in making any other improvements by the City of Vancouver, in any street, alley or public highway, to remove any pole or poles belonging to said grantee, its successors or assigns, or on which any line or lines, wire or wires, of the said grantee, its successors or assigns, shall be stretched, or fastened, the said grantee, its successors or assigns, shall upon ten days' notice from the City of Vancouver, or its properly constituted authorities, remove such pole or poles, and if failing, neglecting or refusing to do so, the said City of Vancouver, by its properly constituted authorities, may remove the same at the expense of the said grantee, its successors or assigns.' (Italics ours.)

August 9, 1923, the city granted a similar franchise to Portland Railway Light & Power Company, a corporation, upon substantially the same terms.

The respondent is the assignee and successor in interest of the two franchises.

Pursuant to a request of the state highway department, the city of Vancouver adopted a resolution on November 22, 1950, establishing a limited-access highway upon a portion of primary state highways Nos. 1 and 8 within the corporate limits. April 21, 1952, the city consented to and approved the access plans of the state highway department.

August 1, 1952, the Washington state highway commission,

'* * * acting as the legal, implied and/or constructive agent of the City ov Vancouver, and acting for the State of Washington in its sovereign capacity and as authorized by law, * * *'

requested respondent to remove, at its own expense, those facilities which interfered with the construction of the new limitedaccess highway.

The respondent

'* * * refused to remove said facilities pursuant to said notice until and unless reimbursed by the plaintiff [appellant] for its costs and expenses incurred in effecting the removal and relocation of such facilities.'

In furtherance of the public interest, the parties stipulated that respondent would perform the work of removal and relocation made necessary be construction of the freeway,

'* * * without prejudice to their [respondent's] rights or claims for reimbursement for said removal and relocation as may be finally determined by the court.'

The parties having stipulated that the cost of removal and relocation of the facilities was $20,999.69, the trial court entered judgment in favor of respondent for this amount.

The arguments of the parties (both but tressed by an abundance of legal authorities) 'pass as ships in the night,' for each is based on a different major premise.

Reduced to the lowest common denominator, respondent contends that it has been deprived of property '* * * without just compensation having been first made * * *.' Washington constitution, Art. I, § 16 (amendment 9).

On the other hand, appellant contends (a) that respondent has not been deprived of property; (b) that a franchise from the city could not create vested rights against the state; (c) that franchise rights are qualified by the police power of the state; and (d) that utility corporations, at common law, must pay the cost of removal and relocation of their facilities from public highways when required by public convenience and necessity.

At this juncture, we call attention to the fact that the stipulation of the parties and the findings of fact of the trial court are silent on one point: There is nothing to indicate that respondent is now unable to furnish electrical energy to the entire city of Vancouver under the terms of its franchise, even though the city is divided by the freeway. The conclusion is inescapable--the situation is exactly as stipulated and found by the trial court--namely, this is a removal of public utility facilities from certain portions of public streets and a relocation of these facilities in order that the freeway could be built and the purpose of the franchises could be continued.

This determination having been made, the many authorities cited by the parties fall into a pattern.

In cases cited by respondent ¹, privately owned property was damaged by the action of the state or municipality. For this, the owners were entitled to damages. We do not find these cases apposite.

In the instant case, whether respondent's right to use the streets of the city of Vancouver for its electrical distribution system is termed a franchise or a privilege, it is subject to the express provision that it will remove and relocate these facilities 'whenever the removal thereof shall be deemed for the public convenience' or 'in making any other improvements by the City of Vancouver.'

The great weight of authority supports the following rule:

'In the absence of an express and definite provision to the contrary, a utility company maintains its structures and rights in a public street subject to the paramount right of the city to use its streets for all proper governmental purposes. A grant, franchise, easement or other right accorded to a utility company by public authority, to maintain structures in public streets, is at all times subject to the police power of the sovereign, and unless expressly agreed to otherwise in the franchise, the company must, at its own expense, make such changes as the public convenience and necessity require, and it is bound to alter, remove, relocate, support and maintain a structure, when necessary for the city's carrying out a function in the interest of public health safety or welfare, and this is so, whether the city has fee title or a mere easement in the street.' Rhyne, Municipal Law 512 (1957).

Many authorities are cited in support of this text. The same rule is stated in 25 Am.Jur., Highways, § 183; 18 Am.Jur., Eminent Domain, § 161.

In Granger Telephone & Telegraph Co. v. Sloane Brothers, Inc., 1917, 96 Wash. 333, 334, 165 P. 102, 103, this court said:

'It is true that the appellant [telephone company] had a right in the highway by reason of the franchise, but that right is necessarily a qualified...