State v. Superior Court of Lincoln County

• Decision Date: 05 April 1922
• Docket Number: 16585.
• Citation: 205 P. 1051,119 Wash. 406
• Court: Washington Supreme Court
• Parties: STATE ex rel. ANDERSEN et al. v. SUPERIOR COURT OF LINCOLN COUNTY et al.

205 P. 1051

119 Wash. 406

STATE ex rel. ANDERSEN et al. v. SUPERIOR COURT OF LINCOLN COUNTY et al.

No. 16585.

Supreme Court of Washington, En Banc.

April 5, 1922

Certiorari by the State of Washington, on the relation of Andrew Andersen and others, against the Superior Court of Lincoln County and Joseph Sessions, judge thereof, to review action of the court in an eminent domain proceeding. Affirmed.

Parker C.J., and Fullerton, Tolman, and Bridges, JJ., dissenting.

C. M. N. Love, of Wilbur, for petitioners.

Lindsay L. Thompson, Atty. Gen., and Fred J. Cunningham, Asst. Atty Gen., amici curiae.

Louis A. Dyar, of Wilbur, for respondents.

HOVEY J.

Certiorari to review an order of necessity made in an eminent domain proceeding wherein A. S. Campbell seeks to condemn a portion of the supply of water from springs located upon land now belonging to the petitioners together with the right of way for a pipe line for the carrying of such water. The use of the water alleged is for household, stock, and irrigation purposes.

The land is situate in Lincoln county, Wash., in the semiarid portion of this state, the land of petitioners having upon it springs which are not the source of any stream supply and of which no use has heretofore been made except by plaintiff in this action. The lands of the plaintiff do not have upon them any supply of water, but the plaintiff has successfully farmed a considerable area by dry farming, and for 30 years has obtained his supply of water for domestic and stock purposes through a pipe line to a portion of the springs upon the lands of the petitioners through which he has been using from three to four gallons a minute. This right has heretofore been exercised by virtue of a lease made by a former owner of the premises with Campbell, but the lease has now expired, and the petitioner has refused to renew the privilege. It also appears that the overflow of this supply is used by Campbell in irrigating a small orchard. It is also established by the evidence that this supply of water is the only one available for this enterprise, and that without it the plaintiff will have to abandon his property, as he can no longer live there. The petitioners in this proceeding and their predecessors have never made any use of this water, but petitioners now assert they propose to use it for irrigation.

The case is one of first impression before this court, and the Attorney General has filed a brief amicus curiae on behalf of the state.

The petitioners make three contentions: (1) That section 4 of chapter 117 of the Laws of 1917 is unconstitutional; (2) that the use sought to be obtained is not a public use; (3) that title to the land upon which the springs are situated was initiated by the predecessors in interest of the petitioners prior to the admission of the state of Washington into the Union, and that therefore the rights of petitioners in the property are superior to the provisions of the Constitution.

The first and second contentions naturally subject themselves to a common discussion. The law under which this action is brought contains the following, being section 4, Laws 1917 p. 448:

'The beneficial use of water is hereby declared to be a public use, and any person may exercise the right of eminent domain to acquire any property or rights now or hereafter existing when found necessary for the storage of water for, or the application of water to, any beneficial use, including the right to enlarge existing structures employed for the public purposes mentioned in this act and use the same in common with the former owner, and including the right and power to condemn an inferior use of water for a superior use. In condemnation proceedings the court shall determine what use will be for the greatest public benefit, and that use shall be deemed a superior one: Provided, that no property right in water or the use of water shall be acquired hereunder by condemnation for irrigation purposes, which shall deprive any person of such quantity of water as may be reasonably necessary for the irrigation of his land then under irrigation to the full extent of the soil, by the most economical method of artificial irrigation applicable to such land according to the usual methods of artificial irrigation employee in the vicinity where such land is situated. In any case, the court shall determine what is the most economical method of irrigation. Such property or rights shall be acquired in the manner provided by law for the taking of private property for public use by private corporations.'

The relevant provisions of our Constitution are:

Article 21. 'The use of the waters of this state for irrigation, mining, and manufacturing purposes shall be deemed a public use.'

Section 16 of article 1. 'Private property shall not be taken for private use, except for private ways of necessity. * * * Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public.'

Is is contended by the petitioners that, inasmuch as the primary use intended in this action is for domestic purposes, the same is excluded by implication by the use of the words 'irrigation, mining and manufacturing.' This argument overlooks the fact that the state has sovereign powers except where restricted by the terms of the constitution. State ex rel. Mountain Timber Co. v. Superior Court, 77 Wash. 585, 137 P. 994. The declaration used unquestionably makes those purposes public purposes, but it does not preclude the state, through its Legislature, from declaring other purposes to be also public in their nature, subject, of course, to the duty of the court to pass upon the question independently of such declaration.

It is also contended that the provision that the question of its being a public purpose shall be a judicial question precludes the Legislature from so declaring. We do not so construe the section. The Legislature can declare in the first instance that the purpose is a public one, and it remains the duty of the court to disregard such assertion if the court finds it to be unfounded.

It is true that this proceeding cannot be...