Yellowstone Pipe Line Co. v. Drummond

• Decision Date: 12 July 1955
• Docket Number: No. 8198,8198
• Parties: YELLOWSTONE PIPE LINE COMPANY, a corporation, Plaintiff-Respondent, v. James A. DRUMMOND and Dorothy Drummond, his wife, James A. Drummond, Trustee of King Mining Company, a Kentucky corporation, and Emil Bouwens and Stephanie Bouwens, his wife, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 288

287 P.2d 288

77 Idaho 36

YELLOWSTONE PIPE LINE COMPANY, a corporation, Plaintiff-Respondent, v. James A. DRUMMOND and Dorothy Drummond, his wife, James A. Drummond, Trustee of King Mining Company, a Kentucky corporation, and Emil Bouwens and Stephanie Bouwens, his wife, Defendants-Appellants.

No. 8198.

Supreme Court of Idaho.

July 12, 1955.

Rehearing Denied Sept. 14, 1955.

Robert J. Fanning, Kellogg, Edward J. Crowley, Spokane, Wash., for appellants.

H. J. Hull & Sons, Wallace, for respondent.

PORTER, Justice.

On March 25, 1954, respondent filed its amended complaint seeking to condemn a right-of-way for a pipeline across certain mining claims owned by appellants or in which they claim an interest. Respondent seeks a right-of-way 50 feet wide during construction of its proposed pipeline and 20 feet wide permanently thereafter. Its proposed pipeline is for the purpose of transporting petroleum and petroleum products from Montana across the State of Idaho to Spokane, Washington, as a distributing point. Part of such materials are to be hauled back by truck from the distributing point to retail outlets in Idaho.

On April 12, 1954, respondent filed a motion for an order permitting respondent to take immediate possession of the right-of-way sought to be condemned. This motion was based upon the affidavit of Piatt Hull, attorney for respondent, as to the necessity for immediate possession of the right-of-way by respondent for construction of its pipeline, and upon the affidavit of one William Zanetti made on behalf of respondent wherein affiant appraises the value of the easement sought to be condemned at the sum of $46.25 with accruing damages in the sum of $1,300. On the same day respondent purportedly served and filed notice of such motion. In such notice it was stated that on April 17, 1954, respondent would move the court for an order permitting respondent to take possession of the premises sought to be condemned pending a completion of the action as provided in Section 7-717, I.C., as amended by Chapter 252, Session Laws of 1953.

On April 17, 1954, the court denied the motions of appellants to quash service of notice of motion for possession. Thereupon, the court proceeded over the objection of appellants to take testimony introduced by respondent in support of its motion for possession. Appellants introduced no testimony although they filed an affidavit as to value and damages.

On May 7, 1954, the trial court filed its order of possession whereby respondent was permitted to take immediate possession of the right-of-way sought to be condemned. The court found the value of the right-of-way to be $100 and the accruing damages to be $1,400. The order for possession was conditioned upon the deposit by respondent of $3,000, being double the amount of value and damages, with the clerk for the use and benefit of appellants before the taking possession of such right-of-way; and such order further provided for the filing of a $2,500 bond by respondent to cover any additional damages which might be eventually assessed. From such order of possession appellants have appealed to this court.

The principal contention made by appellants under their assignments of error is that Chapter 252, Session Laws of 1953, amending Section 7-717, I.C., is unconstitutional and void as it violates Article I, § 13, and Article I, § 14, of the Idaho Constitution. Having determined that appellants are correct in this contention, as hereinafter discussed and decided, it follows that the order of possession made by the trial court based upon the 1953 amendment is null and void. Thus it becomes unnecessary for us to consider the additional assignments of error contesting the service of notice, challenging the rulings and procedure of the trial court and attacking its findings of fact. It is likewise unnecessary to set out the additional parts of the record upon which the other assignments of error are based.

Section 7-717, I.C., prior to its amendment in 1953, provided for the appointment of three disinterested persons as commissioners to assess and determine, after a hearing, the damages which would arise by reason of the taking of the property sought to be condemned. Upon the payment of the amount of such damages to the landowner by the condemnor or the deposit of same with the clerk for the landowner's benefit if he refused to accept the same, an order could be made permitting the condemnor to take possession of and use the property pending the final outcome of the litigation. Section 7-717, I.C., was amended by Chapter 252, 1953 Session Laws, by deleting therefrom the provisions for the appointment of commissioners to assess damages and substituting in lieu thereof the following:

'Provided, however, that at any time after the commencement of suit, the plaintiff may move the court or judge thereof, on five days notice to the defendant, if he is a resident of the state or has appeared by attorney in the action, otherwise by serving such notice directed to him on the clerk of the court, for an order permitting the plaintiff to take possession of and use the premises sought to be condemned pending the action. The court or judge thereof upon receiving an affidavit of the plaintiff as to the value of the property sought to be condemned and of the damages which will accrue from the condemnation, and of the reasons requiring speedy occupation shall grant or refuse the motion according to the equity of the case. If the motion is granted the court or judge thereof shall make and enter an order granting the plaintiff the right to take possession of and use the premises sought to be condemned, and shall require the plaintiff to deposit with the clerk of the court, who shall upon order of the court deposit the same with the county treasurer as aforesaid, a sum equivalent to twice the amount set forth in the affidavit of the plaintiff, and thereupon title to said lands in fee simple or such estate or interest therein as may be specified in said order shall vest in the plaintiff and the lands or premises shall be deemed to be condemned and taken for the use recited in the complaint, and the right to one-half of the sum paid into court shall vest in the defendants as their interests may be determined by the court. No appeal from said order of taking, nor any bond or undertaking given on such appeal, shall operate to stay the effect of said order of taking. If defendant or defendants desire to accept the sum of one-half the amount paid into court as aforesaid as and for just compensation for the property taken, a written application may be filed by such party or parties advising of said acceptance, and thereupon one-half of the sum deposited in court as aforesaid shall be paid forthwith as and for just compensation for the property taken and a final order of condemnation shall be made and entered by the court. If however said amount shall not be accepted by the defendant or defendants, said cause shall proceed to trial and if compensation finally awarded by the court or jury exceeds the amount of money so deposited, the court shall enter judgment against the plaintiff for the amount in excess of that deposited with the clerk, and if the amount deposited be greater than the amount finally awarded, the excess shall be returned to the plaintiff. The sum set forth by the affidavit of the plaintiff, and the sum deposited by the plaintiff with the clerk of the court shall be for the purposes of the motion and order of taking only, and shall not be admissible in evidence on a final hearing before a court or jury. The court or judge may also, pending the action, restrain the defendant or defendants from hindering or interfering with the occupation of the premises, and the doing thereon of the work required for the condemnation, occupation and intended use thereof, and shall have power to make such orders in respect to encumbrances, liens, rents, taxes, assessments, insurance and other charges, if any, as shall be just and equitable; provided, however, that the plaintiff may at any time before the amount deposited is accepted by the owner or owners, and before actual possession is taken, withdraw the amount so deposited and abandon the proceedings, and the title acquired by reason of such declaration of taking and deposit shall revert to the owner or owners of said premises.' (Emphasis supplied.)

Article I, § 13, of our constitution reads in part as follows:

'No person shall * * * be deprived of life, liberty or property without due process of law.'

Article I, § 14, of our constitution reads in part as follows:

'Private property may be taken for public use, but not until a just compensation, to be ascertained in the manner prescribed by law, shall be paid therefor.'

At the outset, respondent admits in effect that the provision of the 1953 amendment purporting to vest title in the plaintiff upon the entry of the order for immediate possession and prior to the final determination and payment of just compensation, violates the constitution. Respondent urges, however, that such provision is contrary to the main body of the eminent domain statute, and should be held meaningless and be eliminated.

The real vice in the 1953 amendment is that it does not provide due process of law for the determination of the value of the land sought to be condemned and the damages arising from such condemnation and the payment thereof prior to the making of an order for possession, which results in the taking of the property before just compensation is paid therefor. Due process of law envisions an opportunity upon reasonable notice for a fair hearing before an impartial tribunal. In Abrams v. Jones, 35 Idaho 532, at page 546, 207 P. 724, at page 727, the court said that 'due process of law is not necessarily satisfied by any process which the Legislature may by law provide, but by such process only as safeguards and protects the fundamental,...