State v. Superior Court for Adams County

• Citation: 111 Wash. 542,191 P. 413
• Decision Date: 14 July 1920
• Docket Number: 15930.
• Parties: STATE v. SUPERIOR COURT FOR ADAMS COUNTY et al.
• Court: Washington Supreme Court

191 P. 413

111 Wash. 542

STATE v. SUPERIOR COURT FOR ADAMS COUNTY et al.

No. 15930.

Supreme Court of Washington

July 14, 1920

Department 2.

Certiorari to Superior Court, Adams County.

Condemnation proceedings by the State of Washington against certain landowners. To review orders of the Superior Court of Adams County dismissing the suit, plaintiff brings certiorari. Judgment reversed, and cause remanded, with directions to enter order of necessity.

Lindsay L. Thompson and John A. Hemer, both of Olympia, for the State.

Chas P. Lund, of Spokane, for defendants.

BRIDGES J.

This is a suit to acquire by condemnation right of way for a state road. The Legislature of 1915 created the Central Washington Highway in the following words:

'A primary state highway is established as follows: A highway connecting with the Inland Empire Highway at Pasco Washington; thence by the most feasible route through Connell, Ritzville, Sprague and Cheney, to Spokane Washington, to be known as the Central Washington Highway.' Section 5878-2(d), Rem. Code.

The state authorities are now procuring right of way for this highway. It has already acquired most of the right of way between the town of Connell and the town of Lind, a distance of several miles. Being unable to acquire by purchase the right of way through part of three contiguous sections, it instituted five condemnation suits--one to secure the right of way through a part of the northeast quarter of section 4 township 14, range 33 E. W. M.; another for the right of way through a part of the southeast quarter of section 33; a third for right of way through a part of the southwest quarter of section 34; a fourth to acquire the right of way through a part of the northwest quarter of section 34; and the fifth for right of way through a part of the northeast quarter of section 34, all in township 15, range 33 E. W. M. By stipulation, all these cases were consolidated for the purpose of the hearing on the question of necessity. At the termination of the hearing the trial court entered an order in each case to the effect that the testimony failed to show a necessity to acquire the right of way through the lands described, and ordered the suits dismissed with costs. Later it was stipulated between the parties that the various cases might be consolidated in one application to this court for a writ of certiorari. Upon such application the writ was issued, and the complete record is now before us.

There are two chief questions presented for our determination: First, has the state proceeded to acquire the right of way in the manner provided by the statutes of the state of Washington? and, second, does the testimony establish a necessity for the taking of the particular lands involved? Section 5872, Rem. Code, provides as follows:

'The state highway commissioner is hereby authorized to acquire right of way on behalf of the state for state roads by gift, purchase or condemnation in the manner prescribed by law for the acquirement or condemnation of lands for county roads. The cost of such right of way shall be paid for from the fund apportioned to the state road for which such right of way is acquired. * * *'

Section 5623 and subsequent sections of Rem. Code provide a complete program for the laying out and establishment of county roads and acquiring rights of way therefor. These sections provide that county roads may be established either by resolution of the board of county commissioners or upon petition of householders. They provide for various hearings before the board of county commissioners, of which hearings the persons interested must be given notice. Section 5634 provides that the commissioners shall determine the amount of damages to which each landowner is entitled, and by section 5636 such amount must be tendered to the landowner. Section 5635 provides that, if such award of damages is not accepted, the board shall direct that the right of way be procured by condemnation, 'in the manner provided by law for the taking of private property for public use, and to that end are hereby authorized to institute and maintain in the name of the county the proceedings provided in sections 921 to 936 of this Code. * * *' The sections last referred to provide the manner and way whereby corporations may acquire right of way by condemnation.

We find, therefore, that the condemnation procedure for a state road right of way must be the procedure provided for acquiring by condemnation county road rights of way, and that county road rights of way must be condemned in the manner provided for condemnation of rights of way by corporations. The state, in the cases under discussion, has proceeded in the manner provided for acquiring rights of way by corporations. The defendant, however, contends that, since the statute (section 5872, Rem. Code) authorizes the state to condemn 'in the manner prescribed by law for the acquirement or condemnation of lands for county roads,' it is necessary that the state follow and comply with the complete preliminary provisions with reference to acquiring rights of way for county roads. In other words, it is contended that it is necessary that the state highway board hold meetings and give notices, determine the amount of damages, and make tender thereof, and otherwise comply with the County Road Act, before it could authorize the commencement of a condemnation suit.

We do not so construe the statute under discussion. It does not mean that the state highway commissioner or the state highway board shall carry out all the details preliminary to a condemnation provided for acquiring rights of way for county roads. It simply means that the actual condemnation proceedings shall be those provided for acquiring county roads. Reading the various statutes together, we find that condemnation for state roads shall be the same procedure provided for condemning for county roads and that condemnation for the latter shall follow the procedure provided for acquiring rights of way by corporations. The state road statute means the same as if it had provided that state road rights...