City of Tacoma v. Titlow

Rudkin, C. J.-

This proceeding was instituted by the city of Tacoma, a municipal corporation of the first class, to condemn and appropriate a right of way over certain lands within and without its corporate limits, for the purpose of expending Sixth avenue, “west to the high land on the shore of Puget Sound, and thence by curving the said Sixth avenue from a point in lot 3, section 3, township 20, north, range 2 east, to a point on the Inner Harbor line about midway between Wilton waterway and Day Island waterway.” A portion of the land thus sought to be appropriated lies in block 182, Tacoma tide lands, owned by the appellants Titlow and wife. At the point on Puget Sound where the proposed street terminates, the city limits only extend to the line of ordinary high tide, so that tide land block 182 lies without the city limits, between the main land and the Inner Harbor line. The court below adjudged that the proposed use was a public-use, and that public necessity demanded the prosecution of' the enterprise, and ordered a jury impaneled to assess the-damages. From this order the appellants Titlow and wife-have appealed.

The first error assigned is the insufficiency of the evidence-on the questions of public use and public necessity to support the order of condemnation as to the tide land lots in controversy. If the city of Tacoma had jurisdiction to extend its. streets over these tide lands, the determination of the questions of public use and public necessity by the proper municipal officers is conclusive upon the courts in the absence of fraud. Selde v. Lincoln County, 25 Wash. 198, 65 Pac. 192; State ex rel. Schroeder v. Superior Court, 29 Wash. 1, 69 Pac. 866; Adams County v. Schroeder, 80 Wash. 708, 70 Pac. 1184; State ex rel. Thomas v. Superior Court, 42 Wash. 521, 85 Pac. 256; State ex rel. Pagett v. Superior Court, 47 Wash. 11, 91 Pac. 241.

It is next contended that the city has no power to condemn lands for street purposes without its territorial limits. Section 1 of the act of March 18, 1907 (Laws 1907, p. 816),. provides as follows:

“Every city of the first, second and third classes and other cities having a population of over fifteen hundred inhabitants within the State of Washington, is hereby authorized and empowered to condemn land and property, including state, county and school lands and property for streets, avenues.,, alleys, highways, bridges, approaches, culverts, drains, ditches, public squares, public markets, city and town halls, jails, and other public buildings, and for the opening and widening, widening and extending, altering and straightening of any street, avenue, alley, or highway, and to damage any land or other property for any such purpose or for the purpose of making changes in the grade of any street, avenue, alley or highway, or for the construction of slopes or retaining walls for cuts and fills upon real property abutting on any street, avenue, alley or highway now ordered to be, or such as shall hereafter be ordered to be opened, extended, altered, straightened or graded, or for the purpose of draining swamps, marshes, tide lands, tide flats or ponds, or filling the same, within the limits of such city, and to condemn land or property, or to damage the same, either within or without the limits of such city for public parks, drives and boulevards, hospitals, pest houses, drains and sewers, garbage crematories and destructors and dumping grounds for the destruction, deposit or burial of dead animals, manure, dung, rubbish, and other offal, and for aqueducts, reservoirs, pumping stations and other structures for conveying into and through such city a fresh supply of water, and for the purpose of protecting such supply of fresh water from pollution, and to condemn land and other property and damage the same for any other public use after just compensation having been first made or paid into court for the owner in the manner prescribed by this act.”

The only provision of this section that could warrant the appropriation of lands without the city limits are the words “for drives and boulevards” or “for any other public use.” Laws conferring the right of eminent domain must be strictly construed, and municipal corporations cannot exercise such right without their corporate limits, in the absence of express legislative authority (Puyallup v. Lacey, 43 Wash. 110, 86 Pac. 215) and it may well be that the street in question is neither a drive nor a boulevard within the purview of this statute, and that the general words “for any other public use,” following specific enumeration of particular uses, do not confer the right, but this question we need not determine.

Section 1 of art. 15 of the constitution provides:

“The legislature shall provide for the appointment of a commission whose duty it shall be to locate and establish harbor lines in the navigable waters of all harbors, estuaries, bays and inlets of this state, wherever such navigable waters lie within or in front of the corporate limits of any city, or within one mile thereof upon either side. The state shall never give, sell, or lease to any private person, corporation or association any rights whatever in the waters beyond such harbor lines, nor shall any of the area lying between any harbor line and the line of ordinary high tide, and within not less than fifty feet nor more than six hundred feet of such harbor line (as the commission shall determine) be sold or granted by the state, nor its rights to control the same relinquished, but such area shall be forever reserved for landings, wharves, streets, and other conveniences of navigation and commerce.”

Section 3 provides:

“Municipal corporations shall have the right to extend their streets over intervening tide lands to and across the area reserved as herein provided.”

Under § 1 of this article, harbor lines must be located and established not only within, but in front of, the corporate limits of cities, and notwithstanding the fact that the limits of the city of Tacoma only extend to the line of ordinary high tide at this point, yet harbor lines were properly established in front of the city; and under § 3 of the above article, the city had power to extend its streets to the harbor area over the intervening tide lands. Columbia & Puget Sound R. Co. v. Seattle, 6 Wash. 332, 33 Pac. 824, 34 Pac. 725; Seattle v. Columbia & Puget Sound R. Co., 6 Wash. 379, 33 Pac. 1048; Seattle & Montana R. Co. v. State, 7 Wash. 150, 34 Pac. 551, 38 Am. St. 866, 22 L. R. A. 217; State ex rel. McKenzie v. Forrest, 11 Wash. 227, 39 Pac. 684; State ex rel. Bartlett w. Forrest, 12 Wash. 483, 41 Pac. 194; Ilwaco v. Ilwaco R. & Nav. Co., 17 Wash. 652, 50 Pac. 572.

Some question is raised as to the power of the city to levy assessments on land without its limits to pay the award in the condemnation proceedings, but, as said by this court in Puyallup v. Lacey, supra, that question does not arise in this case.

“Whatever damages are assessed in this proceeding must be paid by the city, before the property can be taken or damaged as in other cases.”

In view of the conclusion we have reached on the merits of the case, we deem it unnecessary to discuss or consider the motion interposed at the hearing to dismiss the appeal on the ground that the order is not appealable.

Finding no error in the record, the judgment is affirmed.

Chadwick, Fullekton, Gose, and Mokkis, JJ., concur..