State ex rel. Seaborg v. Superior Court , 116 Wash. 457 ( 1921 )

Mackintosh, J.

Certiorari to review an order of necessity, in a suit by Wahkiakum county for the condemnation of a right of way for a public road. The property sought to be condemned is the top of a dike in a diking district, organized by virtue of the laws of this state, and the only question to be determined is the right of the county to establish such a road.

The diking district and the various property owners through and upon whose property the dike is constructed were made parties to the condemnation proceeding, and the diking district appeared and con-, sented to the establishment of the road. Several of the property owners are objecting to the condemnation for the reason, as they claim, that the county has no right to condemn property belonging to another municipal corporation, and rely upon our decision in the case of State ex rel. Cle Elum v. Kittitas County, 107 Wash. 326, 173 Pac. 698.

There is no question in this case but what there is a reasonable necessity for the construction of the road contemplated by this condemnation, and no question that the use for which it is being sought by the county is a different use from that to which it is now being devoted by the diking district, and that the use by the county would not be inconsistent nor in any way in conflict with the diking district’s use, present or prospective. As we view it, the question of the county’s right to condemn the property of another municipal corporation is not in this case, for the reason that the diking district has, through its proper officers, consented to the condemnation and has, in effect, licensed the use of its property for road purposes. This the diking district could do under the authority given its commissioners under § 4102, Bern. Code. The diking district does not own the fee of the dikes, it simply has an interest therein as provided in the diking acts, Bern. Code, § 4091 et seq. The case, therefore, does not fall within the rule announced in the Cle Elum case, supra, for there is not here presented the question of the power of the county to condemn in the absence of express grant of such power by statute. The consent of the diking commissioners, of course, does not absolve the coiinty from the- necessity of condemning the land of private property holders, and, as we view it, they have no legal ground upon which to object to the proceeding.

The case falls within the principle announced in State ex rel. Kent Lumber Co. v. Superior Court, 46 Wash. 516, 90 Pac. 663, where a right of way granted to a city for a pole line was allowed to be condemned for a railroad right of way, the city having consented thereto, and it being determined that the two uses could run together. It was there held the city could dispose of its property, and that the interests of the owner of the fee, after the grant of easement to the city, were still subject to condemnation. In that case we said:

“It is also contended that the respondent railway company is not authorized to appropriate this land, for the reason that it has already been appropriated by the city for a pole line for the transmission of electricity to said city and for the further purpoae of protecting its water supply. We may assume for the purposes of this case, without deciding, that relator can raise these objections. It appears, that the city has granted its permission for a right of way to respondent company; that the city has the power to acquire property or to' dispose of the same as the interests of the same require. Pierce’s Code, §§ 3728,3732, 3735 . . . § 1 of the city charter. While the city does not own the fee, it owns an interest in the land which may be waived or granted to another public use (Seattle v. Columbia etc. R. Co., 6 Wash. 379, 33 Pac. 1048), subject to the rights of the owner of the fee. Whatever rights the owner of the fee has left are subject to condemnation for a public use, especially where the two uses can run together, as appears to be the case here.”

The evidence disclosing that the construction of this road is necessary, that the use to which it is to be devoted is not inconsistent with the interest and use of the rHTn-ng district, and that the diking district has waived its right to object, we hold that the superior court was correct in entering its order of necessity, and the writ will be denied.

Parker, C. J., Bridges, Fullerton, and Holcomb, JJ., concur.