State v. Superior Court for Grays Harbor County

• Decision Date: 02 March 1918
• Docket Number: 14356.
• Citation: 100 Wash. 485,171 P. 238
• Court: Washington Supreme Court
• Parties: STATE ex rel. GRAYS HARBOR LOGGING CO. et al. v. SUPERIOR COURT FOR GRAYS HARBOR COUNTY et al.

171 P. 238

100 Wash. 485

STATE ex rel. GRAYS HARBOR LOGGING CO. et al. v. SUPERIOR COURT FOR GRAYS HARBOR COUNTY et al.

No. 14356.

Supreme Court of Washington

March 2, 1918

Department 2. Application for writ of review and stay of proceedings by the State of Washington, on the relation of Grays Harbor Logging Company and W. R. Boeing, against the Superior Court for Grays Harbor County and W. A. Reynolds, Presiding Judge thereof, and Coats-Fordney Logging Company. Writ and stay denied.

Bridges & Bruener, of Aberdeen, for respondents.

HOLCOMB, J.

This is an original application for a writ of review and a stay of proceedings pending the final disposition of a condemnation action instituted under the provisions of the private way of necessity act (Laws 1913, p. 412, c. 133; Rem. Code, § 5857-1 et seq.) in the superior court of Grays Harbor county wherein the Coats-Fordney Logging Company is the petitioner and the Grays Harbor Logging Company and W. E. Boeing are the respondents. The writ is argued for and the relief demanded on the ground that relators have no adequate remedy by appeal.

In the original cause proceedings were had which resulted in an order of condemnation being entered in the cause on October 15, 1914. On October 22, 1914, a petition for a writ of review to review the order of condemnation was presented to this court by the respondents Grays Harbor Logging Company and Boeing, which came on regularly to be heard upon October 19, 1914. This court made and entered its decision which is reported in 82 Wash. 503, 144 P. 722. The decision there affirmed the decision of the superior court and upheld the order of condemnation or adjudication of the use and necessity for taking the property. A petition for rehearing being filed and denied, the judgment of this court was entered in accordance with its decision on March 1, 1915. On April 8, 1915, a petition in that cause for a writ of error to the Supreme Court of the United States was filed in this court, and on that date an order directing the issuance of a writ of error was entered. The cause proceeded to hearing before the Supreme Court of the United States, and upon March 6, 1917, that court made and entered its decision dismissing the cause for want of jurisdiction upon the ground that the order of necessity and public use to review which the writ of error had been issued was not a final judgment, but should be construed as being subject to the conditions that the proper compensation to be paid for the taking of the property described in the petition must be first ascertained and paid. In the opinion it was said:

'When the litigation in the state courts is brought to a conclusion, the case may be brought here upon the federal questions already raised as well as any that may be raised hereafter; for although the state courts, in the proceedings still to be taken, presumably will feel themselves bound by the decision heretofore made by the Supreme Court (82 Wash 503), as laying down the law of the case, this court will not be thus bound.' Grays Harbor Logging Co. v Coats-Fordney Logging Co., 243 U.S. 251, 37 S.Ct. 295 61 L.Ed. 702.

Thereafter upon July 2, 1917, the cause having been remitted to the superior court of Grays Harbor county, a trial was had before the court and jury upon the question of the damages to be awarded and paid the respondents, the relators here, for the taking and damaging of their lands as described in the petition for condemnation. The jury awarded damages, and judgment was entered thereon in favor of relators in the sum of $2,500 as the value of the lands taken and damages to the remainder. On August 21, 1917, the court made and entered its decree of appropriation in the cause. The relators here have appealed from the judgment of award of the lower court, and have also brought this proceeding for a writ of review, frankly stating that they are seeking, and believe they are entitled to, a review of all three of the judgments heretofore entered in the cause, in order to obtain a final determination so that they can have the question of the constitutionality of the private way of necessity act passed upon by the Supreme Court of the United States upon a final judgment.

The act under which the condemnation proceeding was instituted provides that the procedure shall be the same as that provided for the condemnation of private property by railroad companies. Rem. Code, § 5857-2. The method of procedure in condemnation actions by railroad companies is found in section 921 et seq., Rem. Code. In considering the provisions of the last act this court, in the case of Chicago, M. & P. S. R. Co. v. Slosser, 82 Wash. 467, 144 P. 706, said:

'The statute referred to seemingly contemplates the entry, during the course of the proceedings, of three separate and distinct judgments: First (by Rem. & Bal. Code, § 925; P. C. 171, § 176), a judgment finding that the contemplated use for which the property sought to be appropriated is really a public use, and the necessity for its taking for that use; second (by Id. § 926; P. C. 171,§ 177), a judgment fixing the amount of the award that is made to the owner of the property appropriated because of the appropriation, both for the property actually taken and for other property damaged thereby; and, third (by Id. § 927; P. C. 171, § 178), '* * * a judgment or decree of appropriation of the land, real estate, premises, right of way, or other property sought to be appropriated, thereby vesting the legal title to the same in the corporation seeking to appropriate such land, real estate, premises, right of way, or other property for corporate purposes.''

An appeal is granted by the statute only from the second of the judgments above referred to, namely, that awarding the damages. Rem. Code, §§ 931; Chicago, M. & P. S. R. Co. v. Slosser, supra; North Coast R. Co. v. Gentry, 58 Wash. 80, 107 P. 1059.

The only method of reviewing the question of the right to take property under the power of eminent domain--that is, the question...