Whatcom County v. Yellowkanim

• Decision Date: 13 December 1907
• Citation: 48 Wash. 90,92 P. 892
• Parties: WHATCOM COUNTY v. YELLOWKANIM.
• Court: Washington Supreme Court

92 P. 892

48 Wash. 90

WHATCOM COUNTY v. YELLOWKANIM.

Supreme Court of Washington

December 13, 1907

Appeal from Superior Court, Whatcom County; Jeremiah Neterer, Judge.

Condemnation proceedings by Whatcom county against James Yellowkanim. From a judgment dismissing the complaint on sustaining a demurrer plaintiff appeals. Appeal dismissed.

Virgil Peringer and George Livesey, for appellant.

Hardin & Hurlbut, for respondent.

DUNBAR, J.

The appellant, Whatcom county, presented to the superior court of that county its petition, praying for the condemnation of certain land described in said petition, said land being private property. Notice in condemnation was served, and thereafter respondent appeared and demurred to the appellant's amended petition. The demurrer was sustained and, the appellant declining further to plead, the court dismissed the case to appellant's costs. From such action of the court, this appeal is taken.

The respondent interposes in this court a motion to dismiss the appeal, upon the grounds that no authority for appeal sought to be taken herein exists, and that the court has not jurisdiction of the respondent or of the subject-matter of this action. This motion must be sustained. We decided in Western American Company v. St. Ann Company, 22 Wash. 158, 60 P. 158, that the appeal in condemnation cases brought before this court only the propriety and justice of the amount of damages, and that no question could be raised upon appeal in condemnation proceedings other than as to the amount of damages; that the general statute in relation to appeals did not apply. In that case the contention of the appellant was that the land sought to be condemned was attempted to be appropriated for a private, and not a public use; that the respondent was not authorized by its charter to condemn the right of way or exercise the right of eminent domain, and that respondent was estopped for certain reasons from claiming the right of eminent domain. In this case the legal question involved is that a county has not power to condemn under the laws of the state of Washington providing for the taking of private property for public use, through the right of eminent domain; that the appellant did not commence the action in pursuance of any procedure theretofore had in the establishment of a public highway, and therefore was not endeavoring to pursue its remedy by virtue of any authority to condemn provided for in the laws regulating the establishment of roads or public highways. After the decision of the case just above referred to, the Legislature attempted to make provision for an appeal which would bring other questions before the Supreme Court, which law is found in Sess. Laws 1901, p. 213, c. 102. But that statute was held invalid in State ex rel. v. Superior...