State v. Superior Court of King County

• Decision Date: 30 March 1903
• Citation: 31 Wash. 445,72 P. 89
• Parties: STATE ex rel. TRIMBLE et ux. v. SUPERIOR COURT OF KING COUNTY.
• Court: Washington Supreme Court

72 P. 89

31 Wash. 445

STATE ex rel. TRIMBLE et ux. v. SUPERIOR COURT OF KING COUNTY.

Supreme Court of Washington

March 30, 1903

Certiorari by the state, on the relation of William Pitt Trimble and wife, against the superior court of King county to review an order adjudging certain lands subject to condemnation for railroad purposes. Order affirmed.

Burke Shepard & McGilvra, for respondent.

ANDERS, J.

The Seattle & Montana Railroad Company is a corporation organized under the laws of the state of Washington for the purpose of constructing, owning, and operating railroads and telegraph lines within the state. As such corporation it is vested by statute with the right to exercise the power of eminent domain. The lands and premises involved in this controversy are situated on the shore of Elliott Bay, in the harbor of Seattle, and are 'tide and shore lands,' bounded on the north by King street, on the east by Oriental avenue, on the south by Connecticut street, and on the west by Occidental avenue. The record title to the easterly 10 feet of the above-described tract is in William Pitt Trimble, but it seems to be conceded that that part is in fact the community property of Trimble and wife. The title to the remainder of said tract is still in the state of Washington but possession thereof is held by the Trimbles under a contract made by the state, through its duly constituted agent, the commissioner of public lands, on March 10, 1897 agreeing to convey the same by patent to one C. E. Remsberg in consideration of the sum of $925.34, to be paid in ten equal annual installments, the first at the time of the execution of the agreement and the others annually thereafter, with interest thereon at 6 per cent. per annum payable annually with each installment, on all unpaid installments. This contract is in the usual form of such contracts, and provides, among other things, that the conveyance shall be 'subject, however, to any lien or liens that may arise or be created in consequence of, or pursuant to, the provisions of an act of the Legislature of the state of Washington entitled 'Anact prescribing the ways in which waterways for the uses of navigation may be excavated by private contract, providing for liens upon tide and shore lands belonging to the state granting rights of way across lands belonging to the state,' approved March 9, 1893'; that the vendee 'will pay all taxes and assessments of every kind that may be levied or assessed on said land and premises'; that, if the said vendee 'shall well and faithfully keep and perform all the covenants and argreements hereinbefore specified by him to be kept and performed in the manner and at or before the times above specified, he shall be entitled to a patent to said lands from the said state of Washington as provided by law upon surrender of said agreement and cancellation of the same'; and that 'the terms of this contract shall be binding in favor of and against the said party of the second part, his heirs, executors, administrators and assigns, but no assignment of this contract shall in any way relieve the said party of the second part from the performance of the conditions hereof on his part, nor be recognized or admitted by the state of Washington, unless the same shall be indorsed hereon and executed, witnessed and acknowledged in the same manner as a conveyance of real estate is required by law to be, and said assignment shall be accepted by and entered on the records of the commissioner of public lands.'

The railroad company, in pursuance of the provisions of the statute, filed a petition for condemnation in the superior court of King county, in which it substantially set forth the state's contract above mentioned, and annexed a copy thereof as an exhibit, and alleged that after the making of the said contract said Remsberg and his wife, for a valuable consideration, made and delivered to one C. F. Webb their warranty deed, which was duly recorded, conveying to her, the said Webb, all the tide lands embraced in the said contract, and wherein and whereby said Remsberg and wife authorized the commissioner of public lands of the state of Washington, or the board of state land commissioners, or their or either of their successors in office, to make, issue, and deliver to said grantee in her name any grant, contract, or conveyance of said lands, or any part thereof, or to any person or corporation to whom said grantee might convey the same, or any part thereof; that thereafter the said C. F. Webb, for a valuable consideration, made and delivered to said William Pitt Trimble her quitclaim deed, whereby she released, remised, and quitclaimed unto him all right, title, and interest which she then had in or to said tide lands, or any part thereof, and wherein and whereby she 'authorized the commissioner of public lands and the board of state land commissioners, or either of them, or their successors in office, to execute and deliver to said William Pitt Trimble any contract or conveyance of the above-described land, or any part thereof, or to any person or corporation to whom he might convey the same'; that the said Remsberg, at or soon after the time of receiving from the state its contract for the conveyance of said tide lands to him, went into possession of the same, and upon executing and delivering said warranty deed to said Webb he delivered the possession of said lands to her, and upon executing and delivering said quitclaim deed to said William Pitt Trimble she delivered the possession of said lands to him, and he has ever since remained and now is in possession thereof, claiming under said contract of the state. Counsel for the petitioners state in their brief that Remsberg and wife, as well as Trimble and wife, were joined as respondents in the condemnation proceeding, on account of the informality of these assignments, under the provisions of the contract. The petition specifically describes the lands sought to be appropriated to the use of the railroad company, as required by law, and alleges, in substance, that the use to which the land is to be devoted is a public use; that the public interest requires the prosecution of the said enterprise; and that the land, real estate, and premises sought to be appropriated are required and necessary for the purposes of such enterprise. The petition also states that the petitioner seeks to appropriate the entire fee-simple estate of the respondents Trimble in the strip of land 10 feet in width which they hold by deed, and 'to appropriate, condemn, and acquire the entire interest of said William Pitt Trimble and Connie Ford Trimble, his wife, in the remainder of said lots, tracts, and parcels of land, to wit, their said equitable ownership thereof, and their entire interest in said agreement with the state of Washington for the sale and conveyance thereof; and also the entire apparent interest of said C. E. Remsberg and Belle F. Remsberg, his wife, therein--all subject to the obligation imposed by the terms of said agreement upon the said C. E. Remsberg, the vendee therein named, and upon his assigns, to pay to the state of Washington the balance of the purchase price therein specified, with interest as therein required.' It is further stated in the petition that the railroad company seeks to appropriate the aforesaid land and the aforesaid interests therein for the purpose of tracks and a site for terminal buildings and facilities. The petition prayed that a jury be impaneled by the court to ascertain and determine the compensation to be made in money, irrespective of any benefit from any improvement proposed by the petitioner, to the respective owners, tenants, and incumbrancers of, and other persons interested in, the said lands and the said interests therein, and in said agreement for the sale and conveyance of a part thereof, for the taking or injuriously affecting the same, or, if a jury be waived, that said compensation be ascertained by the court or a judge thereof.

It thus appears that the petition set forth all facts necessary under the statute to give the superior court jurisdiction of the subject-matter of the proceeding. Remsberg and wife and Trimble and wife were duly served with notice of the application for condemnation. The first-named parties failed to appear, but Trimble and wife appeared, and thereafter a hearing was had before one of the judges of the superior court of King county for the purpose of determining whether the alleged use for which the lands and property were sought to be appropriated was really a public use, and whether the same were required and necessary for the purposes of the petitioner, as set out in said petition. On this 'preliminary hearing' the fact set out in the petition, as above noted, relative to the contract by the state for the sale of the tide lands in question, and the subsequent transfers of the vendee's interest therein, were clearly established by documentary evidence; and we think the petitioner also satisfactorily proved that the permises were required and necessary for the purposes specified, namely, a right of way for its tracks and a site for a passenger station and for platforms, warehouses, etc. But it was shown by the testimony of the petitioner's engineer that the petitioner is not the owner of any locomotives or cars, and that it does not operate its railroad, but the same is operated by the Great Northern Railway Company, under some kind of an agreement between them, the terms of which were not disclosed by the evidence. It further appeared that neither the state of Washington nor the Seattle & Lake Washington Waterway Company was made a party to or served with notice of the proceeding.

The respondents Trimble and wife objected to the proceeding on the...