State v. Superior Court for Mason County

• Decision Date: 16 January 1918
• Docket Number: 14325.
• Citation: 99 Wash. 496,169 P. 994
• Parties: STATE ex rel. MASON COUNTY POWER CO. v. SUPERIOR COURT FOR MASON COUNTY et al.
• Court: Washington Supreme Court

169 P. 994

99 Wash. 496

STATE ex rel. MASON COUNTY POWER CO. v. SUPERIOR COURT FOR MASON COUNTY et al.

No. 14325.

Supreme Court of Washington

January 16, 1918

Department 2. Condemnation proceedings by the Mason County Power Company against George H. Tilden and wife. From a judgment of dismissal, petitioner brings certiorari. Judgment affirmed and certiorari proceedings dismissed.

Frank C. Owings, of Olympia, for plaintiff.

Peters & Powell, of Seattle, for defendants.

HOLCOMB J.

An application was made here for a writ to review the action of the lower court in dismissing a condemnation proceeding. The petitioner began condemnation proceedings in the superior court of Mason county against the respondents George H Tilden and wife, to appropriate and take over a right or easement in certain described lands situated in Mason county consisting of the right to back up water thereon and overflow the same. The petitioner alleged, and the court in its judgment of dismissal, found that all the petitioner's stock has been subscribed and its annual license fee paid; that petitioner has caused to be projected laid out, and surveyed the lands described in the petition for a dam site and power plant and works for the use of the petitioner; that the lands, real estate, and premises are all necessary for the maintenance and operation of such dam, power plant, and works, and the right to back up water thereon and overflow the same, which same right was heretofore granted by the state of Washington to respondent George H. Tilden through the state board of land commissioners of the state of Washington, on August 25, 1915; that the articles of incorporation confer upon the petitioner, and show that it has complied with the laws of the state of Washington so as to have conferred upon it, the power of eminent domain; that the use to which the petitioner desires to appropriate such lands is a public use.

The theory presented by the respondents Tilden to the lower court in resisting petitioner's right to the order or decree of appropriation, and which was adopted by the trial court, was that the statute has prescribed the method by which persons or corporations may acquire the right from the state to erect power plants on state lands and overflow such lands in the putting in of their works; that that method is conclusive; that there is no right granted by statute for condemning state land for this purpose; that there is a specific grant made by the statute to railroad companies and some others for condemning state lands, but there is no statute conferring that right upon corporations for the purpose of generating electric power, so that the method prescribed by statute in getting the right to overflow lands for electric power purposes by application to the state board of land commissioners who exercise their discretion in granting or refusing it, but upon such terms as the board may prescribe, both as to the consideration that may be paid for the privilege and also the time in which the work must be put in, in order to keep the grant or privilege of power alive, is exclusive; that the privilege granted by the board to an applicant for such right vests a right in the applicant by the state which the court had no power by condemnation proceedings to take away from the party to whom the right was granted and award to another. Relator contends that the above rheory is erronous, and that the court erred in entering a judgment of dismissal of its petition.

Section 6828, Rem. Code, grants authority to the board of state land commissioners----

'to grant any person or corporation the right, privilege, power and authority to perpetually back and hold water upon and over any land belonging to the state of Washington, and to overflow any such land and inundate the same, if said board deems it necessary for the purpose of erecting, constructing, maintaining or operating any water power plant, reservoir, or works for impounding water for power purposes, irrigation, mining or other public use.'

The two following sections provide for the manner and terms upon which the privilege may be granted by the board of state land commissioners and enjoyed by the grantee. We find no other statute in the laws of this state permitting either a corporation or a private individual to acquire state lands or any rights therein for the same purposes as those involved herein. By the terms of the statute under consideration the authority to grant such right is vested exclusively in the board of state land commissioners. The respondent Tilden made application for such right under this statute. The relator also made such an application, and the board of state land commissioners granted the application of respondent Tilden and denied that of the relator. What relator sought to do in the eminent domain proceeding was to have the court take from respondent Tilden and give to it what the...