DocketNumber: No. 13152
Citation Numbers: 91 Wash. 454
Judges: Fullerton
Filed Date: 6/9/1916
Status: Precedential
Modified Date: 10/19/2024
This is a proceeding brought by the Port Townsend and Puget Sound Railway Company against the city of Port Townsend and the state of Washington to condemn for terminal purposes certain real property lying part
The water way in question was established and dedicated pursuant to the act of the legislature of March 28, 1890. Laws 1889-90, p. 731; Rem. & Bal. Code, §§ 8092-8099 (P.
Ҥ 8092. There shall be established one or more public ways across all of the tide flats that are situated within or in front of any incorporated city or town, or within two miles either way from any incorporated city or town, within the state of Washington.
“§ 8093. The public ways provided for in the last preceding section shall not be less than fifty nor more than one thousand feet wide, and shall commence at the outer or deep water end, in not less than twenty feet of water at low tide, and shall extend inland across the state’s tide lands.
Ҥ 8094. The public ways above provided for shall be so located as to include, as near as is practicable, within their bounds all navigable streams running through the tide flats in which they are located, and at such other places as may be necessary for the present or future convenience of commerce.
Ҥ 8095. A correct plat of all public ways so established shall be made, one copy of which shall be filed with the secretary of state, one copy with the commissioner of public lands of the state; one copy shall be kept in the office of the chairman of the board of harbor line commissioners, and each county shall be furnished with a correct plat of all such public ways established within its borders, and such plats shall be filed as city or town plats are filed and become a part of the county records.
“§ 8096. All the public ways that may be established under the provisions of this chapter are, and shall forever be, reserved from sale or lease as public ways for water crafts.”
At the legislative session of 1893, provision was made for the excavation of water ways and the filling in of the adjoining tide lands. However, no excavation was ever done on the water way in question and it remained, up to the time of the commencement of the condemnation proceedings, in the condition it was when originally platted and dedicated. The streets mentioned were extended across the tide lands by the city of Port Townsend in virtue of § 3, art. 15 of the constitution, which authorizes municipal corporations to extend
The petitioner asserts its right to condemn the tide lands, the part of the water way, and the parts of the streets in question under the statutes of eminent domain which were enacted subsequent to the enactment of the water way statutes before cited. The particular section relied upon is found in Rem. & Bal. Code at § 8740 (P. C. 405 § 85), the material parts of which read as follows:
“Every corporation organized for the construction of any railway, ... is hereby authorized and empowered to appropriate, by condemnation, land and any interest in land or contract right relating thereto, including any leasehold interest therein and any rights of way for tunnels beneath the surface of the land, and any elevated rights of way above the surface thereof, including lands granted to the state for university, school or other purposes, and also tide and shore lands belonging to the state (but not including harbor areas), which may be necessary for the line of such road, railway or canal, or site of such bridge, not exceeding two hundred feet in width, besides a sufficient quantity thereof for toll-houses, workshops, materials for construction, excavations and embankments and a right of way over adjacent lands or property, to enable such corporation to construct and prepare its road, railway, canal or bridge, and to make proper drains; . . and in case of a railway to appropriate a sufficient quantity of any such land, including lands granted to the state for university, school and other purposes and also tide and shore lands belonging to the state (but not including harbor areas), in addition to that before specified in this section, for the necessary side tracks, depots and water stations, and the right to conduct water thereto by aqueduct, and for yards, terminal, transfer and switching grounds, docks and warehouses required for receiving, delivering, storage and handling of freight, and such land, or any interest therein, as may be necessary for the security and safety of the public in the construction, maintenance and operation of its railways; . . . And provided further, that if such corporation locate the bed of such railway or canal upon*458 any part of the track now occupied by any established state or county road, said corporation shall be responsible to the county commissioners of said county or counties in which such state or county road so appropriated is located, for all expenses incurred by . such county or counties in relocating and opening the part of such road so appropriated. The term land as herein used includes tide and shore lands but not harbor areas; it also includes any interest in land or contract right relating thereto, including any leasehold interest therein.”
The petitioner derives the power to condemn the water way and the streets in question from the particular words of the statute authorizing corporations for the construction of railways to appropriate by condemnation “land and any interest in land or contract right relating thereto, . . . including lands granted to the state ior university, school or other purposes, and also tide and shore lands belonging to the state (but not including harbor areas) which may be necessary for side tracks, depot, transfer and switching grounds,” and other like purposes. It does not contend, if we have correctly gathered the position of its learned counsel, that the statute has application to a water way or street which has been improved and is in actual use by the public, but does have application to all such water ways and streets which are not fitted by nature for such actual use, and there is no immediate intention on the part of the proprietor to artificially fit them for that purpose.
If, however, we have mistaken counsel’s meaning and it be that they mean to assert that the statute is broad enough to permit the condemnation for railway purposes of any property of the state, other than the specifically exempted part, we cannot agree with the contention. As is well known, the state holds title to property in two entirely distinct capacities, the one a proprietary capacity, as individuals generally hold property, and the other a governmental capacity, that is, in trust for the public use. The rule, therefore, is that a statute conferring upon the state or other municipal corporation
“The rule is that, whenever a tract of public land is once legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public land, so that authority to sell in general terms will not be construed to embrace or operate upon it, although no reservation is made of it.”
So, also, in State v. Whitney, 66 Wash. 478, 120 Pac. 116, where we quoted with approval from the case of Wilcox v. Jackson, 13 Pet. 498, the following:
“We go further, and say, that whensoever a tract of land shall have once been legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public lands; and no subsequent law, or proclamation, or sale, would be construed to embrace, or operate upon it; although no reservation were made of it.”
Indeed, if this be not the rule, the legislature has, by the act in question, granted to railway companies power to condemn any of the state lands for railway purposes (save that of course which is specially exempted), which would include the lands on which its capítol buildings are situated.
Unless the distinction we have suggested counsel intended to make be sound, there can be no question that the water way and the streets in question are among the exempted classes. The first was set apart for a public use in virtue of a statute duly enacted for that purpose, and the other in virtue of the constitution itself. The lands within their boundaries thus become segregated from the general mass of the state’s lands which it holds in its proprietary capacity, and become vested in that special class which it holds specially for the public use.
As supporting the right of the petitioner to condemn the lands, we are cited to our cases which hold that property held by one public service corporation is, under certain circumstances, subject to condemnation by another public service corporation; the case specially relied upon being that of State ex rel. Washington Boom Co. v. Chehalis Boom Co., 82 Wash. 509, 144 Pac. 719. But we cannot think the principle involved in these cases is the principle involved
“It is not the mere ownership of property by a public service corporation that protects it from acquisition by another public service corporation seeking to acquire it for a public use by right of eminent domain; but the question of such a right of acquisition must find its answer in the present or prospective use of such property by the condemnee, the prospective use thereof by the condemner, the comparative advantages flowing to the public as between the ownership thereof by the condemnee and condemner, and the comparative advantage and disadvantages flowing to the condemnee and condemner by the ownership of such property.”
In the case before us, the question is solely one of power. The question is whether the state has granted to railway companies the right to condemn land which it has reserved and set apart for a public use. There is no question of superior right as between two public service corporations.
The petitioner makes the further objection that the state is without interest sufficient to enable it to object to a condemnation of the streets named, even though it may contest the petitioner’s right to the water way. But streets are public highways, established for the use of the public, and the state in its sovereign capacity may object to their appropriation, as against any one who attempts to appropriate them without right. The city of Port Townsend, by its default, conveyed no right of property in the streets. A city has no power under the statutes to grant affirmatively to a railway company the right to the use of its streets to the exclusion of the public therefrom (State ex rel. Schade Brewing Co. v. Superior Court, 62 Wash. 96, 113 Pac. 576) ; and what it cannot do by affirmative grant, it cannot do by defaulting in a condemnation proceeding.
Our conclusion is that the trial court erred in adjudging them subject to condemnation. The judgment is therefore reversed, and the cause remanded with instructions to exclude them from the condemnation order.
Mo ruis, C. J., Mount, and Ellis, JJ., concur.