County of Ada v. State , 93 Idaho 830 ( 1970 )

SHEPARD, Justice

(dissenting).

I feel required to file a dissent in this action. I agree with the majority decision to the extent that it holds that the State has waived its otherwise right of sovereign immunity. The majority opinion, however, and I think regretfully, becomes' involved in an itnnecessary exercise in semantics in its attempt to determine whether or not the property sought to be condemned herein is or is not appropriated to some public use. Section 7-703(3), I.C., makes it clear that property owned by the State and appropriated to a public use may nevertheless be condemned.

The majority opinion ignores certain alternatives that the legislature may have had in mind by its enactment of the Session Laws of 1963, Chapter 228, Section 6. I would point out that the legislature may have had in mind the future “disposition” of the Old Soldiers’ Home property by declaring the same to be surplus and turning the property over to the State Board of Land Commissioners for sale to some private party or parties; oí it may have had in mind the future “disposition” of the Old Soldiers’ Home property to another state agency for some other public use which might or might not be more paramount and necessary than the use to which the property is sought to be put by plaintiffs herein. Of these facts we are not aware and can only speculate because the mandate of Section 7-703(3), I.C., was not complied with. That subsection provides:

“ * * * but such property shall not be taken unless for a more necessary public use than that to which it has been already appropriated.”

Rather than attempting to fathom the intent of the legislature, it would seem more appropriate and logical that the decision of the trial court be reversed and that the matter be remanded for the purpose of holding a hearing consistent with the purpose of Section 7-703(3). Such procedure would then permit a showing by the State as to the public use to which the land in question herein is to be put in the future. Thereafter, the trial court would determine, as required by the statute, which was the more necessary public use. Any other procedure would permit a condemning authority to acquire any state property temporarily vacant and unused. I cannot believe that such is the intent of the majority opinion; however, I think such would be the ultimate result therefrom.

The majority opinion unfortunately equates “not appropriated to some public use” to private property. I must continue to believe that all property held by the State for whatever purpose is public property in so long as title thereto is held by the State. If the use to which it is put or intended to be put is not higher than the use for which sought by the condemning authority, then it must of course be subject to condemnation. Without, however, that specific determination being made by a trial court, it is impossible for me to perceive how this Court is able to determine the ultimate question, which is of course, can this particular piece of property be condemned ?