Taylor v. Greenler

• Decision Date: 24 September 1959
• Docket Number: No. 34858,34858
• Citation: 54 Wn.2d 682,344 P.2d 515
• Court: Washington Supreme Court
• Parties: William TAYLOR, Respondent, v. Francis GREENLER and Zola Greenler, husband and wife, Appellants.

Page 682

54 Wn.2d 682

344 P.2d 515

William TAYLOR, Respondent, v. Francis GREENLER and Zola Greenler, husband and wife, Appellants.

No. 34858.

Supreme Court of Washington, En Banc.

Sept. 24, 1959.

C. T. Hatten, Shelton, for appellants.

Greenwood, Shiers & Presser, Port Orchard, for respondent.

HILL, Judge.

This action was brought by the respondent, William Taylor, under RCW 8.24, to condemn a private way of necessity across the land of the appellants, Francis and Zola Greenler. An order adjudicating necessity was filed on June 28, 1957. The case thereafter came on for trial for the assessment of damages, and there was a verdict in favor of the appellants in the sum of $370, which, together with costs, was paid into the registry of the court by the respondent on May 16, 1958.

From the judgment on the verdict, signed May 16 and filed May 19, 1958, the appellants gave notice of appeal on June 12, 1958; the appeal being 'from each and every part of that certain judgment made, and entered herein by the court on the 19th day of May 1958.'

No issue is raised as to the justness or propriety of the damages awarded, and no claim of error is made concerning the proceedings in which the damages were determined.

The appellants seek, on this appeal, to review the order adjudicating necessity, entered June 28, 1957, more than eleven months before any notice of appeal was given.

Consequently, we are presented with the question of whether the order adjudicating necessity can be reviewed on an appeal from the judgment fixing the damages sustained.

At first blush, a negative answer seems apparent.

The procedure for the condemnation of land for a private way of necessity is the same as provided for the condemnation of private property by railroad companies. RCW 8.24.030.

Railroad companies come under the classification of corporations authorized by law to exercise the power of eminent domain; hence, the procedure applicable to the condemnation of private ways of necessity is that provided in RCW 8.20. See State ex rel. Mower v. Superior Court for Pierce County, 1953, 43 Wash.2d 123, 260 P.2d 355. RCW 8.20.120 provides that:

'Either party may appeal from the judgment for damages entered in the superior court, to the supreme court of the state, within thirty days after the entry of judgment as aforesaid, and such appeal shall bring before the supreme court the propriety and justness of the amount of damages in respect to the parties to the appeal: * * *'.

This is the only provision for an appeal where a corporation exercises the power of eminent domain, and it has been held that this statute limits the questions cognizable on appeal to the 'propriety and justness' of the damages assessed. Chelan Electric Co. v. Perry, 1928, 148 Wash. 353, 268 P. 1040, 1041; Chicago, Milwaukee & Puget Sound R. Co. v. Slosser, 1914, 82 Wash. 467, 144 P. 706. It is well established that no question can be raised on appeal under that statute as to the right to condemn, the order adjudicating necessity being reviewable only by writ of certiorari which issues as a matter of right when a petition therefor is timely filed, and the statutory requirements relative to review by certiorari appear of record. State ex rel. Northwestern Electric Co. v. Superior Court for Clark County, 1947, 27 Wash.2d 694, 179 P.2d 510; State ex rel. Grays Harbor Logging Co. v. Superior Court for Grays Harbor County, 1918, 100 Wash. 485, 171 P. 238.

To avoid this apparently decisive determination, against their present attempt to attack the order adjudicating necessity, the appellants present an issue not heretofore raised in this court concerning the statute, or rule on appeal, applicable in this type of case.

It is conceded that appeals in eminent domain cases, because of the character of the proceedings, have always been limited by the special provisions relating to appeals contained in the eminent domain statutes. State ex rel. Northwestern Electric Co. v. Superior Court for Clark County, supra; North Coast R. Co. v. Gentry, 1910, 58 Wash. 80, 107 P. 1059.

It is urged, however, that there is a hiatus in the law governing appeals in condemnation proceedings where a private road (way) of necessity is being acquired; that the general rules on appeal apply; that Rule on Appeal 14(1), RCW Vol. 0, provides that an appeal from a final judgment brings up for a review any order made in the same action or proceeding; that the order adjudicating necessity is such an order, and, therefore, subject to review on this appeal.

To understand this argument it becomes necessary to trace the history of the statutes implementing Art. I, § 16, of the Washington state constitution which reads, in part as follows:

'Eminent Domain. Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes or ditches on or across the lands of others for agricultural, domestic or sanitary purposes. * * *' (This section amended in 1919 by 9th amendment by an addition not here material.)

This was not a self-executing provision, and required legislation to make it effective. See Long v. Billings, 1893, 7 Wash. 267, 34 P. 936.

In 1895, legislation was enacted partially implementing the constitutional provision, it being 'An Act relating to the location and establishment of private roads of necessity, and providing for compensation for lands taken therefor.' Laws of 1895, chapter 92, p. 180.

Section 1 provided that the owners of landlocked property might obtain the location and establishment of a road across the land of others, to obtain access to a highway, in the manner provided by law for the appropriation of private property by corporations, 'except as in this act provided.' (This became Rem.Rev.Stat. § 6746.)

Sections 2 and 3 provided for the filing of a petition in the superior court and a bond to cover costs and expenses. (These became Rem.Rev.Stat. §§ 6750, 6751.)

Sections 4, 5, 6, and 7 provided for the appointment, by the court, of commissioners; their payment, their report, and the hearing thereon. They were appointed for the purpose of determining: 'First, whether there is necessity for the establishment of a road, and, second, the most practicable route for such road.' Exceptions could be filed to their report. If the court did not approve the report, either as to the necessity or the route, it could appoint other commissioners. (These sections became Rem.Rev.Stat. §§ 6752, 6753, 6754, 6755.)

Section 8 provided that if the court finds there is necessity for the road, 'and shall by order determine the route thereof, then the cause shall be tried before a jury as to the amount of compensation' for the damages sustained by the opening of the road. (This section became Rem.Rev.Stat. § 6756.)

Section 9 is set forth in full, as appellants place great reliance on its terms.

'No appeal shall be taken from any order of the court as to the necessity of the road or as to the route thereof until after judgment as to the amount of compensation: Provided, That exception shall be taken and entered to such orders at the time the same are made, and the appeal from such orders and from the judgment awarding such compensation shall be taken at one time: Provided further, That all the provisions of law relating to appeals from judgments in proceedings for the appropriation of private property by corporations shall apply to the proceedings provided for it in this act so far as the same are not inconsistent herewith.' (This section became Rem.Rev.Stat. § 6757.)

Section 10 provided for the payment of the award of damages, and a judgment of appropriation. (This section became Rem.Rev.Stat. § 6758.)

Section 11 declared an emergency.

That this statute only partially implemented the quoted constitutional provision is apparent, as it applied only to private roads (ways) of necessity; but the constitution was completely implemented by Laws of 1913, chapter 133, p. 412, as is made clear by its title, i. e.,

'An Act relating to the taking of private property for private ways of necessity and for drains, flumes and ditches on or across the lands of others for agricultural, domestic or sanitary purposes.'

Here we have the exact language of the constitutional provision carried into the title of the act.

Section 1 of the 1913 act provided for condemnation for private ways of necessity, or for drains, flumes or ditches for agricultural, domestic or sanitary purposes, and defined private ways of necessity as follows:

'* * * The term 'private way of necessity,' as used in this act, shall mean and include a right of way on, across, over or through the land of another for means of ingress and egress, and the construction and maintenance thereon of roads, logging roads, flumes, canals, ditches, tunnels, tramways and other structures upon, over and through which timber, stone, minerals or other valuable materials and products may be transported and carried.' (This became Rem.Rev.Stat. § 6747, later changed to Rem.Rev.Stat. (Sup.) § 936-1, and is now RCW 8.24.010.)

Section 2 provided that the procedure for condemnation of lands for a private way of necessity, or for drains, flumes or ditches, under the provisions of this act, shall be the same as that provided for the condemnation of private property by railroad road companies. (This became Rem.Rev.Stat. § 6748, later changed to Rem.Rev.Stat. (Sup.) § 936-2, and is now RCW 8.24.030.)

Section 3 was a special provision with reference to logging roads. (This became Rem.Rev.Stat. § 6749, later changed to Rem.Rev.Stat. (Sup.) § 936-3, and is now RCW 8.24.040.)

While chapter 133, Laws of 1913, contained only three sections, and was much shorter than the 1895 act, it completely covered the subject. Not only did it cover the taking of private roads (ways) of necessity, provided for by the 1895 act, but it defined private ways of necessity and included the rights of way for drains, flumes and ditches for...