State v. Superior Court for Jefferson County

• Decision Date: 09 June 1916
• Docket Number: 13152.
• Citation: 157 P. 1097,91 Wash. 454
• Court: Washington Supreme Court
• Parties: STATE v. SUPERIOR COURT FOR JEFFERSON COUNTY et al.

157 P. 1097

91 Wash. 454

STATE v. SUPERIOR COURT FOR JEFFERSON COUNTY et al.

No. 13152.

Supreme Court of Washington

June 9, 1916

Department 1. Original writ of review on relation of the State of Washington against the Superior Court of the State of Washington for Jefferson County and Hon. John M. Ralston judge of said court, to review a judgment of condemnation of tidelands for railroad terminal purposes. Judgment reversed and cause remanded, will instructions to exclude such lands from the condemnation order.

W. V Tanner, Atty. Gen., and R. E. Campbell, Asst. Atty. Gen., for the state.

Corwin S. Shank and H. C. Belt, both of Seattle, for respondents.

FULLERTON J.

This is a proceeding brought by the Port Townsend & Puget Sound Railway Company against the city of Port Townsend and the state of Washington to condemn for terminal purposes certain real property lying partly within and partly without the corporate limits of the city named. The lands sought to be condemned are tidelands. On December 3, 1891 the state of Washington, acting by and through its then board of harbor line commissioners, established a harbor area in front of the city of Port Townsend, and from this harbor area, extending inland and northerly across the intervening tidelands, it platted, dedicated, and reserved a strip of land 180 feet wide as a public way for water craft; the same being called on the dedicating plat Hill Avenue waterway. On the tidelands lying between the harbor area and the uplands and extending easterly from the waterway mentioned there was also subsequently platted and dedicated to public use three certain streets, called on the plat Front street, Water street, and Washington street. Neither the waterway nor the streets mentioned have ever been vacated by any direct action on the part of the state or city, nor has the state, in so far as the record discloses, parted with its title to the tidelands adjoining the waterway or lying between the streets mentioned. The tract sought to be condemned includes not only the tidelands adjoining the waterway and streets named, but a part of the waterway and parts of the streets; and an appropriation of the parts sought to be condemned by the railway company will render them useless for the purposes for which they were dedicated. The petition in condemnation was served upon both the city of Port Townsend and the state. The city defaulted. The state, however, appeared through its Attorney General and questioned the right of the petitioner to condemn, not only the waterway, but the streets as well. A judgment of condemnation was granted by the court below, and this judgment the state seeks to review in this proceeding.

The waterway in question was established and dedicated pursuant to the act of the Legislature of March 28, 1890. Laws 1889-90, p. 731; Rem. & Bal. Code, §§ 8092-8099. The provisions of the act pertinent to the present inquiry are the following:

'Sec. 8092. There shall be established one or more public ways across all of the tide flats that are situated within or in front of any incorporated city or town, or within two miles either way from any incorporated city or town, within the state of Washington.

'Sec. 8093. The public ways provided for in the last preceding section shall not be less than fifty nor more than one thousand feet wide, and shall commence at the outer or deep water end, in not less than twenty feet of water at low tide, and shall extend inland across the state's tidelands.

'Sec. 8094. The public ways above provided for shall be so located as to include, as near as is practicable, within their bounds all navigable streams running through the tide flats in which they are located, and at such other places as may be necessary for the present or future convenience of commerce.

'Sec. 8095. A correct plat of all public ways so established shall be made, one copy of which shall be filed with the secretary of state, one copy with the commissioner of public lands of the state; one copy shall be kept in the office of the chairman of the board of harbor line commissioners, and each county shall be furnished with a correct plat of all such public ways established within its borders, and such plats shall be filed as city or town plats are filed and become a part of the county records.

'Sec. 8096. All the public ways that may be established under the provisions of this chapter are, and shall forever be, reserved from sale or lease as public ways for water crafts.'

At the legislative session of 1893 provision was made for the excavation of waterways and the filling in of the adjoining tidelands. However, no excavation was ever done on the waterway in question, and it remained up to the time of the commencement of the condemnation proceedings in the condition it was when originally platted and dedicated. The streets mentioned were extended across the tidelands by the city of Port Townsend in virtue of section 3, art. 15, of the Constitution, which authorizes municipal corporations to extend their streets over intervening tidelands to and across the harbor areas authorized therein to be reserved, and in virtue of the statutes passed pursuant thereto.

The petitioner asserts its right to condemn the tidelands, the part of the waterway, and the parts of the streets in question under the statutes of eminent domain which were enacted subsequent to the enactment of the waterway statutes before cited. The particular section relied upon is found in Rem. & Bal. Code at section 8740, the material parts of which read as follows:

'Every corporation organized for the construction of any railway, * * * is hereby authorized and empowered to appropriate, by condemnation, land and any interest in land or contract right relating thereto, including any leasehold interest therein and any rights of way for tunnels beneath the surface of the land, and any elevated rights of way above the surface thereof, including lands granted to the state for university, school or other purposes, and also tide and shore lands belonging to the state (but not including harbor areas), which may be necessary for the line of such road, railway or canal, or site of such bridge, not exceeding two hundred feet in width, besides a sufficient quantity thereof for tollhouses, workshops, materials for construction, excavations and embankments and a right of way over adjacent lands or property, to enable such corporation to construct and prepare its road, railway, canal or bridge, and to make proper drains; * * * and in case of a railway to appropriate a sufficient quantity of any such land, including lands granted to the state for university, schools and other purposes and also tide and shore lands belonging to the state (but not including harbor areas), in addition to that before specified in this section, for the necessary side tracks, depots and water stations, and the right to conduct water thereto by aqueduct, and for yards, terminal, transfer and switching grounds, docks and warehouses required for receiving, delivering, storage and handling of freight, and such land, or any interest therein, as may be necessary for the security and safety of the public in

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