State ex rel. Patterson v. Superior Court
State ex rel. Patterson v. Superior Court
Opinion of the Court
This is a proceeding to review an order of the superior court adjudicating a public use and necessity in condemnation proceedings; and the relators also seek to review the refusal of the trial court to order the description of the lands sought to be appropriated to be made more definite and certain.
The original action was brought by the Great Northern Railway Company to condemn certain tide land property of the relators in Seattle, "Washington, for the purpose of erecting a wharf and excavating a slip or dock adjoining the same for use in docking steamships and loading and unloading freight oh and from freight cars of the railway company. A motion to make the description of the property to be condemned, as set forth in the condemnation petition, more definite and certain was first granted and then denied by the court below.
The proposed improvement consists of a wharf about 1,800 feet long and 150 feet wide, extending out from Railroad avenue in what is known as Smith’s Cove, in Puget Sound, with a dredged dock or slip 120 feet in width along the easterly side of it where ships can berth or dock. It will run along the easterly side of and immediately adjoining the present Smith’s Cove
The first contention of the relators is that a portion of this property is to be used for an excavated waterway, and that there is no statutory authority for condemnation for this purpose. Section 8740, Eem. Code, empowers a railway company to condemn “a sufficient quantity of any such land ... for yards, terminal, transfer and switching grounds, docks and warehouses required for receiving, delivering, storage and handling of freight . . .” The relators assert that the proposed waterway is not a dock, but that the word “dock” means wharf and nothing else. Dock is defined: (1) An artificial basin for vessels. (2) the space between two adjoining piers or wharves, often roofed over and used as a place of temporary storage, etc. New Standard Dictionary.
“Dock, in marine and river engineering. Vessels require to lie afloat alongside quays provided with suitable appliances in sheltered sites in order to discharge and take in cargoes conveniently and expeditiously; and a basin constructed for this purpose, surrounded by quay walls, is known as a dock.” Ency. Brittanica (11th ed.).
It is defined by philologists, according to the American use of the term, as a space between wharves. Boston v. Lecraw, 58 U. S. 426. The proposed waterway is, therefore, assuredly a dock and an improvement for which, by the statute, railway companies are authorized to condemn land.
It is further contended that there is no necessity for its condemnation. It is urged that, the statute, Eem. Code, §925, providing that “the land, real estate, premises, or other property sought-to be appropriated are required and necessary for the purposes of such
We held in Samish River Boom Co. v. Union Boom Co., 32 Wash. 586, 73 Pac. 670:
“It is true that the petitioner cannot condemn this property in the absence of any necessity therefor. But the word ‘necessity,’ ás used in the statute, ‘does not mean an absolute and unconditional necessity, as determined by physical causes, but a reasonable necessity, under the circumstances of the particular case, dependent upon the practicability of another route [here another location], considered in connection with the relative cost to one, and probable injury to the other.’ [Citation of cases.] Another learned court states the rule as follows: ‘It may be observed generally that ‘necessary’ in this connection, does not mean absolute or indispensable necessity, but reasonable, requisite, and proper for the accomplishment of the end in view, under the particular circumstances of the case.’ Butte, A. & P. Ry. Co. v. Montana U. Ry. Co., supra [16 Mont. 504]. ‘It is not a question whether there is other land to be had that is equally available, but the question is whether the land sought is needed for the construction of the public work.’ Postal Tel., etc., Co. v. Oregon Short Line R. Co., 23 Utah, 474. . . . W'e think that, upon the facts and circumstances appearing in the case, the petitioner has shown a ‘reasonable’ necessity for the condemnation of the land it seeks to appropriate.”
Relators further urge that the petition is insufficient to sustain any condemnation for the reason that there is no precise description of a portion of the property sought to be condemned. There is a controversy between the parties as to what property is really owned by the relators. The statute, Rem. Code, § 921, provides that the petition shall describe the lands, real estate, premises or other property sought to be appropriated, with reasonable certainty. The lots owned by relators are tide land lots. They were purchased by relators as preference rights of upland owners for the purpose, as they assert, of obtaining a continuous strip of land from their upland to the harbor area as defined by the state. The tide lands were platted into lots and blocks, streets and alleys, prior to the time that the
Section 7842, Eem. Code, provides that:
“When any street, alley or public way in any incorporated city or town . . . has heretofore been or*340 may hereafter be vacated . . . the property within the limits of any such street, alloy or public way so vacated shall belong to the abutting property owners, one-half to each, unless within six months after the taking effect of this act, any person or corporation, who may feel himself or itself aggrieved by such a division, may commence an action in the proper courts of this state to determine the title to any such street, alley or public way so vacated.”
This was enacted by the legislature in 1901. Eelators contend that, since they were entitled to a continuous strip from their upland to the inner harbor line, and that, since the tide lands wore platted in such a way as to make their end lots abutting on the inner harbor line extend at an angle from their lots in the remainder of the tide land plat, they are entitled to have the side lines of the lots extending from the upland extended across the vacated street to meet the side lines of the lots which extend at an angle therefrom to the inner harbor line, and that, in apportioning the land within the vacated street, the court should take this into consideration and apportion the vacated land in accordance with the original intention of the tide land purchasers.
We are of the opinion, however, that we must take the statute providing for the reversion of property in vacated streets as solely controlling in the matter. It provides that the vacated portion shall belong to the abutting property owners, one-half to each. Eelators obtained their tide land lots with the streets dedicated between them and subject to the vacation statute. The question to be determined then is, Where streets intersect the land platted diagonally and form triangular shaped lots, how is the vacated portion to be apportioned one-half to each? Undoubtedly somewhere there will be some land lost which will become “no man’s land.” Even if the lines of the lots abutting on the
The writ will be granted to the extent of directing the court below to require petitioner to file or refile its amended petition describing the property of relators to be condemned as indicated herein. Relators will recover their costs herein.
Ellis, C. J., and Mount, J., concur.
Fullerton, J., concurs in the result.
Reference
- Full Case Name
- The State of Washington, on the Relation of Charles E. Patterson v. The Superior Court for King County
- Cited By
- 14 cases
- Status
- Published
- Syllabus
- Eminent Domain—Purposes—“Docks.” Rem. Code, § 8740, empowering a railway company to condemn lands for “docks” and warehouses, authorizes the condemnation of sufficient ground for excavating a slip or waterway adjoining a proposed wharf; “dock” meaning an artificial basin for vessels or the space between two adjoining piers or wharves. Same—“Necessity”—Evidence—Sufficiency. A reasonable “necessity” within Rem. Code, § 925, is shown for the condemnation for a dock by a railroad company, where it appears that its business has grown to an extent requiring the facilities, and that still greater facilities will be required, although the company owns other property suitable, but less convenient, for the purpose which would not answer all the purposes sought. Municipal Corporations — Streets — Vacation — Tide Lands — Statutes. Under Rem. Code, § 7842, providing that the property within the limits of a vacated street shall revert to the abutting owners, one-half to each, where a vacated street intersected the land platted diagonally, forming triangular shaped lots, the abutting owner’s lines should be extended in straight lines to the center of the vacated street; and the same rule applies whether the lots be tide lands or uplands. Eminent Domain—Petition—Description op Lands—Sufficiency. In condemnation proceedings which include portions of a vacated street that had reverted to abutting owners, a petition is insufficient where it contains only a general description of all the abutter’s interests in the vacated street, in view of Rem. Code, § 921, providing that the property sought to be condemned must be described with reasonable certainty.