State v. Superior Court for Lewis County

Decision Date14 July 1914
Docket Number12131.
Citation141 P. 906,80 Wash. 417
PartiesSTATE ex rel. LONG et al. v. SUPERIOR COURT FOR LEWIS COUNTY et al.
CourtWashington Supreme Court

Department 1. Prohibition by the State, on the relation of T. W. Long and others, against the Superior Court for the County of Lewis and the judge thereof and another. Proceeding dismissed.

F. M Dudley, of Seattle, and Gus L. Thacker, of Chehalis, for respondents.


To state the facts in this case as they are presented to us by the petition of relators would unnecessarily extend the limit of this opinion. In order to meet the legal questions suggested by counsel it is enough to say that the respondent Puget Sound & Willapa Harbor Railway Company, a corporation, brought an action in the superior court of Lewis county seeking to condemn a right of way over lands owned by relators T. W. Long and Mrs. T. W. Long. The proceeding was prosecuted to a final judgment, awarding damages in the sum of $4,759. This amount was paid into the registry of the court and a decree of appropriation taken. It thereupon came to the notice of respondent railway company that the relators T. J. Long and Minnie Long, his wife, claimed an interest in the lands condemned. The respondent railway company filed a petition praying for an order of the court directing the money to be withheld until the relative rights of the owners and the lessees can be adjusted between themselves. The prayer of this petition was granted, and the court further directed that the respective relators should not in any way interfere with the prosecution of the work of the railway company over and across the lands condemned. Upon the petition of the relators this court issued an order directing the judge of the lower court and the associate respondent to appear and show cause why further proceedings on the part of the railway company should not be stayed pending an orderly condemnation of the leasehold interest. The lessees were in possession of the property, but their interests were not disclosed by any public record. No further reference to the facts is necessary.

Among the propositions urged by respondents is that the alleged lease is void in that it purports to be a demise for a period of three years, and is neither witnesses nor acknowledged as required by section 8802, Rem. & Bal. Code. We shall not discuss this question, but will go directly to the real merits of the case.

So far as we have been able to make ourselves familiar with the statutes of other states in the time we have given ourselves for the preparation of this opinion the statute of the state of Washington defining a procedure in eminent domain proceedings is sui generis. The general rule is that all parties who have an interest in the property should be made parties to the condemnation proceeding, and it is a rule quite as general that a lessee has an estate of which the law will take notice, and is entitled to compensation if the reversion is taken in the exercise of the sovereign right of eminent domain. Our statute, which, as we have stated, is neither like the general rule nor the usual statutory provisions covering such cases, provides that a petition in condemnation proceeding shall describe the property with reasonable certainty, and contain 'the name of each and every owner, incumbrancer or other person or party interested in the same, or any part thereof, so far as the same can be ascertained from the public records.' Rem. & Bal. Code, § 921. This statute has never been construed by this court. However, we were called upon to pass upon a similar statute in the case of Gasaway v Seattle, 52 Wash. 444, 100 P. 991, 21 L. R. A. (N. S.) 68. We there held the proceeding to be sufficient, it being brought against the owners and occupants and the persons having an interest therein so far as they were known to the officer signing the petition, or as they appeared from the records in the office of the county auditor. We have no doubt of the soundness of our views in that case, for as was there said, reference to fundamental principles is oftentimes most helpful in the solution of unusual and unique propositions of law. This proceeding is not an admeasurement of private interest. The exercise of the power of eminent domain is the exercise of the sovereign power of the state. Having original power to take without compensation, it is only in virtue of the Constitution (article 1, § 16) that the sovereignty, whether the power is exercised by the state or through the mediumship of its instrumentalities exercising public functions, is bound to make compensation at all. The state may define any procedure that does not violate the constitutional guaranty, and it is well within the power of the state to provide for its own protection that one condemning property in aid of the public functions or service of the state shall not be required to go beyond the public records in determining proper or necessary parties to the proceeding. The state has provided a system of public records, the object and purpose of which is to give the citizen the opportunity and the privilege to publish to the world his interest or claim of interest in property held under the protection of its laws. It can work no hardship if an incumbrancer or a lessee of real property is required to make use of that record under penalty of having his rights foreclosed as against the state or its agents in an action in which the sovereignty of the state is asserted. If this were not the rule the functions of the state might be delayed or paralyzed at the will of the citizen. One undisclosed interest might follow another, whereas it is the purpose of the law, as defined by the statutes, to convey the whole title unincumbered in one proceeding. To that end the statute requires incumbrancers and lessees of record to be made parties, and further provides for a method of determining such conflicting interests or claims as may arise after the award has been paid into court. Rem. & Bal. Code, §§ 929, 930, 931. The purpose of our statute is manifest. We find that purpose nowhere more clearly stated than in the case of Cornell-Andrews Smelting Co. v. Boston & P. R. Corp. 209 Mass. 298, 95 N.E. 887:

'First, to have the interdependent rights of all settled at the same time; and, secondly, to establish the principle that the amount of damages to be paid where the same land is owned by several persons shall be determined as if it had been owned by one person in fee. * * * In Edmands v. Boston, 108 Mass. 535, 544, Wells, J., said: 'The situation of the estate and the manner of its occupation are doubtless to be taken into consideration in estimating the injury caused by disturbing that occupation. But between the public and the landowner it is but one estate. The public right is exercised upon the land itself, without regard to subdivisions of interest by which the subject is affected through the various contracts of individual owners. The public cannot be expected to forego its right to take property for public uses because the exercise of that right will defeat private contracts; nor is it reasonable that losses arising from the failure of such contracts which otherwise might furnish grounds of damage between the individual parties, should measure the compensation to be rendered for the property so taken. Such a rule would seriously impair the public rights. A fair compensation for the property taken and injury done, ascertained by general rules, is a substitution to the owners for that of which they are deprived. That is the whole of the transaction with which the public is concerned. The apportionment is merely a setting out to the several owners of partial interests of their corresponding rights in the fund which has been substituted for the property taken.' In Burt v. Merchants' Ins. Co., 115 Mass. 1, 15, Gray, C.J., said: 'But no contracts between the owners of different interests in the land can affect the right of the government to take the land for the public use, or oblige it to pay, by way of compensation, more

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