State v. Superior Court for Benton County

• Decision Date: 10 October 1910
• Citation: 60 Wash. 279,111 P. 19
• Parties: STATE ex rel. SYLVESTER et al. v. SUPERIOR COURT FOR BENTON COUNTY.
• Court: Washington Supreme Court

111 P. 19

60 Wash. 279

STATE ex rel. SYLVESTER et al. v. SUPERIOR COURT FOR BENTON COUNTY.

Supreme Court of Washington

October 10, 1910

Department 2. Certiorari by the State, on the relation of Norbert R Sylvester and another, to review condemnation proceedings by the North Coast Railroad Company in the superior court for Benton county. Reversed and remanded.

Danson & Williams and Linn & Boyle, for respondent.

CROW J.

The North Coast Railroad Company, a public service corporation commenced proceedings in the superior court of Benton county to condemn the interests of Norbert R. Sylvester and Margaret M. Rankans in the north 30 feet of Front street in Kennewick Wash. The trial judge entered an order adjudging a public necessity and use. The defendants applied to this court for a writ of certiorari, which has been issued and the order is now before us for review.

The evidence shows: That on January 3, 1907, the town of Kennewick, by ordinance, granted the respondent railroad company permission to lay its tracks for its main line over the north 30 feet of Front street, upon which street the relators' lots abut. That sections 11 and 14 of the ordinance read as follows:

'Sec. 11. The grantee, its successors and assigns, is hereby required to commence the construction of said railroad within 30 days from the date of the publication of this ordinance in the official newspaper of the town of Kennewick, and shall carry on the operation of such construction to as speedy completion as the nature of the work shall permit and complete said road and run and operate trains upon same through the town of Kennewick, between North Yakima and the Columbia river, in the state of Washington, within fifteen months, and bridge the Columbia river east of the town of Kennewick within 30 months thereafter.'

'Sec. 14. The grantee shall file a written acceptance of this ordinance with the town clerk of the town of Kennewick, within thirty days, after the publication of said ordinance in the official newspaper of the town of Kennewick.'

That the ordinance was published on January 11, 1907. That written acceptance was not filed by the respondent within 30 days after its publication, but that an acceptance, not shown to have been filed, was prepared by respondent on February 19, 1907. That on August 2, 1909, the town council of Kennewick, in regular session, adopted a resolution declaring that the North Coast Railroad Company had forfeited its right or franchise to occupy the street. That no construction work was commenced on Front street by respondent prior to February 26, 1910, on which date the respondent, after dark on Saturday evening, entered upon the street and commenced laying its tracks. That respondent was stopped by injunction proceedings. That later, upon suspension of the injunction, one track was completed, and that this proceeding was commenced on March 8, 1910, to condemn such interests or property rights as the relators hold in the street upon which their lots abutted, and to compensate them for such damages as they might sustain. Other facts not material to be now mentioned were also shown in regard to another main line through Kennewick adopted by respondent, and an alleged abandonment of the franchise above mentioned.

Some contention is made by the relators to the effect that the franchise ordinance was not passed in the manner required by law, but we will not consider that question; our view being that a forfeiture has been declared by the town council. 'Before a railroad company can lawfully occupy a street, it must have authority to do so from the Legislature, or from some municipal corporation having power to grant it. A railroad cannot occupy a street under its general authority to make a location, but such right must be expressly granted or necessarily implied.' 1 Lewis, Eminent Domain (3d Ed.) § 169. If respondent has failed to comply with the conditions of the ordinance within the time therein limited, and if a forfeiture has been legally declared by the council, it is apparent that respondent has no franchise in the street. Respondent contends that the franchise has not been legally forfeited. It is true that no ordinance repealing the former ordinance, or purporting to forfeit the franchise, has been passed, but a resolution declaring a forfeiture was adopted by the council, and thereafter notice of such forfeiture was promptly transmitted to the respondent. Our attention has not been directed to any statute or charter provision requiring that a forfeiture be declared by ordinance. When no particular mode of action has been prescribed by the Legislature, or a city charter, any anthorized action of a municipality may be taken by resolution, as well as by ordinance. A resolution ordinarily has the same effect as an ordinance except in matters of legislation. Ehrhardt v. Seattle, 33 Wash. 664, 669, 74 [60 Wash. 282] P. 827; State ex rel. Jones v. Superior Court, 44 Wash. 476, 87 P. 521; Steenerson v. Fontaine, 106 Minn. 225, 119 N.W. 400; City of Crawfordsville v. Braden, 130 Ind. 149, 28 N.E. 849, 14 L. R. A. 268, 30 Am. St. Rep. 214; McGavock v. Omaha, 40 Neb. 64, 58 N.W. 549; Board of Education v. DeKay, 148 U.S. 591, 13 S.Ct. 706, 37 L.Ed. 573. The respondent did not comply with the requirements of the ordinance within the time limited. The council by resolution declared a forfeiture, and gave notice of its action. We think the respondent thereafter had no franchise which authorized it to construct its line of road upon Front street.

The respondent, however, contends that, even though there has been a forfeiture, the relators cannot urge the same, nor can they urge the fact that respondent now has no franchise, as a defense to this action. It further insists that its right in an eminent domain proceeding to ascertain and pay damages which owners of abutting property will sustain by reason of its occupation and use of the street, exists even though it has not as yet obtained a franchise. It is true that in State ex rel. Merriam v. Superior Court, 55 Wash. 64, 104 P. 148, cited by respondent, this court, citing previous decisions, said: 'It is argued that, because the city has not granted a right of way to the condemning company across streets adjoining the property in question, therefore this property may not be condemned. This question was settled adversely to the same contention in State ex rel. Harlan v. Centralia-Chehalis Elec. R. &...