DocketNumber: Nos. 16936, 16937
Citation Numbers: 118 Wash. 517
Judges: Parker
Filed Date: 1/26/1922
Status: Precedential
Modified Date: 8/12/2021
— These two certiorari proceedings were commenced in this court, looking to the review of an'adjudication of public use and necessity rendered by the superior court for Walla Walla county in an eminent domain proceeding in which the relator irrigation district seeks to acquire certain water and property rights, in which proceeding the city of Prosser has intervened and seeks to acquire a portion of the same water and property rights, and other property, claiming in that behalf a condemnation right superior to that of the irrigation district. The eminent domain proceeding was duly transferred to the superior court for Walla Walla county for the purpose of a hearing and trial. The adjudication made by the superior court is in favor of the irrigation district as against all the defendants in the proceeding, but is in favor of the intervener city as against the irrigation district and all other parties to the proceeding, in so far as it awards to the city the condemnation right of acquiring one hundred second feet of the water.
The irrigation district was granted a writ of certiorari to bring the record of the eminent domain proceeding to this court, to the end that the adjudication of public use and necessity, in so far as it is against the irrigation district, be reviewed and corrected if
The Kennewick Irrigation District, contemplating the irrigation of several thousand acres of land in Benton county, commenced this eminent domain proceeding in the superior court for that county by filing its petition therein on February 23, 1921, thereafter filing an amended petition, seeking to acquire the dam constructed across the Yakima river at the city of Prosser; all of the waters of the Yakima river, not already owned by it, flowing to and impounded by the dam; the right to divert all of such waters from the river at a point just above the dam; certain rights of way along which to convey the diverted water to a power plant to be constructed as a part of the irrigation system and to the land to be irrigated; and the right to take and damage certain other property. "While there are numerous defendants whose property
The right of the irrigation district to acquire the water and property rights it seeks is not challenged by the Pacific Power & Light Company; but that company does challenge the right of the city to acquire by its intervention in the eminent domain proceeding the water rights and property it seeks, upon the ground of want of proper preliminary jurisdictional steps to be taken by the city authorizing it to exercise its eminent domain right in that behalf. The irrigation district challenges the right of the city to exercise its eminent domain right upon the same ground, and also upon the ground that the contemplated public use of the water and property by it sought to be acquired is superior to that contemplated by the city. We shall proceed for the present upon the assumption that the city has taken the preliminary jurisdictional steps enabling it to exercise its right of eminent domain, in so far as it seeks to acquire water and property rights which are also sought to be acquired by the irrigation district, and thatát was proper for the trial court to permit the city to file its intervention petition in the eminent domain proceeding in that beh'alf. In view of our conclusion, under the facts and circumstances here shown, that the irrigation district’s right of condemnation as to all the water and property rights it seeks to acquire is superior to that of the city because of the greater necessities of the irrigation district and the greater public benefit which will result therefrom, we
The irrigation district was duly organized as a public corporation under the laws of this state, looking to the reclaiming by irrigation of several thousands of acres of arid land lying in the lower Yakima valley, by taking and diverting 1,100 second feet of the water of the Yakima river, being practically all of the water of the river during the months of July and August of each year, when the water is at its lowest stage, from a point just above the dam at the city of Prosser. The record is not at all satisfactory in showing the number of acres proposed to be, and which will be, so reclaimed by the construction of the proposed irrigation project; but it seems certain that, in any event, the number of acres runs into the many thousands, and will, according to the proposed use of the water by the irrigation district, render necessary the taking of all of the water from the river as contemplated during its lowest stage in the months of July and August of each year, leaving none for the use of the city during those months. The entire flow of the river to the dam during those months is approximately only 1,100 second feet. Of this the irrigation district already owns 480 second feet, with the right to divert it from the river at a point above the dam. The irrigation district proposes to carry all this water from the diversion point above the dam through a canal a distance of some ten miles down the river to a point at a considerable height above the
It is argued in behalf of the city that, by the irrigation district’s abandoning or being deprived of the right to use one hundred second feet of the water for power to raise water to serve some 3,600 acres of the land, the remainder of the proposed irrigation project could proceed unhampered. We think, however, the evidence calls for the conclusion, as contended by counsel for the irrigation district, that to so limit the irrigation district’s right of condemnation would so materially impair the efficiency of its project as to call for an abandonment of the whole of it. This, we think, results from the unified and more or less dependent nature of the several parts of the project, one upon the other.
We have, then, for comparison of these two conflicting eminent domain claims of the irrigation district and the city, for the purpose of determining which would redound to the greater benefit of the public, these considerations: (1) Both the irrigation district and the city, we may for present purposes assume, are seeking the hundred second feet of water for power purposes only; the former to aid and make efficient its pumping plant to raise water for irrigation purposes ; and the latter to generate power in its proposed pumping plant to raise and make available water from its wells, wholly apart from the river, for domestic and city purposes; (2) the greater necessity, as we think, on the part of the irrigation district to make its irrigation project and the operation thereof efficient and effectual; (3) the reclamation and the bringing to a high state of productiveness, by the irrigation project, of many thousands of acres of otherwise practically worthless arid land; (4) and the fact that the irrigation district first sought condemnation of the water and property rights in question.
It may be that, speaking generally, the use of water for usual city and domestic purposes is a public use of a character superior to the use of water for irrigation ; and that, were we to put aside the fact of the acquisition of the use of this water for power only, and the comparative necessities of the irrigation district and the city, we might feel required to hold that the disposition of the question of public use and necessity was properly disposed of by the trial court in favor of the city. But our problem is not so narrowly conditioned. Having in view what seems to us the greater necessity of the irrigation district, the greater public
There seems but little room for controversy touching the law that should govern our disposition of this question. In § 4 of our water code (Laws of 1917, p. 448), we read:
“In condemnation proceedings the court shall determine what use will be for the greatest public benefit, and that use shall be deemed a superior one: . . .”
This, seemingly, is the first time in this state that conflicting claims to the exercise of the right of eminent domain have arisen in a condemnation case, wherein two parties to the proceeding are for the first time asserting their conflicting eminent domain claims., "We apprehend, however, that the rule would not be in principle materially different from that which obtains when one public service corporation is seeking to acquire by condemnation the property of another public service corporation already devoted to a public use. Since the irrigation district was plainly prior in point of time in the beginning of its condemnation proceeding, and because of the fact alone has at least the presumptive superior right in its favor (Samish River Boom Co. v. Union Boom Co., 32 Wash. 586, 73 Pac. 670; State ex rel. Cascade Public Service Corp. v.
“ ‘But we should say that there was a reasonable necessity for the taking where the public interests would be better subserved thereby, or where the advantages to the condemnor will largely exceed the disadvantages to the condemnee.’ ”
The following decisions of this court are in harmony with this view: State ex rel. Washington Boom Co. v. Chehalis Boom Co., 82 Wash. 509, 144 Pac. 719; State ex rel. Union Trust & Savings Bank v. Superior Court, 84 Wash. 20, 145 Pac. 999, 149 Pac. 324; State ex rel. South Fork Log Driving Co. v. Superior Court, 102 Wash. 460, 173 Pac. 192.
Applying the rule of our water code, above quoted, and the law as announced in these decisions, we reach the conclusion that the judgment of the trial court should be reversed, in so far as it denies to the irrigation district the right of acquisition, through this condemnation proceeding, of the water rights and property it seeks and awards to the city the condemnation rights it seeks.
There seems to be an attempt by the city, by its intervention, to acquire, as against the Pacific Power &
The cause is remanded to the superior court with directions to render an adjudication of public use and necessity as prayed for by the irrigation district, and to dismiss the city’s intervention petition.
All concur.