King County v. City of Seattle

414 P.2d 1016, 68 Wash. 2d 688, 1966 Wash. LEXIS 791
CourtWashington Supreme Court
DecidedJune 2, 1966
Docket38270
StatusPublished
Cited by9 cases

This text of 414 P.2d 1016 (King County v. City of Seattle) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
King County v. City of Seattle, 414 P.2d 1016, 68 Wash. 2d 688, 1966 Wash. LEXIS 791 (Wash. 1966).

Opinions

Hunter, J.

This is an action in eminent domain commenced by King County (plaintiff-appellant) to condemn [689]*689á 60-foot right-of-way of an existing road. Defendants, only two of whom are respondents on this appeal, were the cities of Seattle and Tacoma, St. Regis Paper Company, Northern Pacific Railway Company, and unknown claimants and owners. The city of Seattle interposed a motion for summary judgment, and the city of Tacoma moved to dismiss plaintiff’s petition for lack of jurisdiction. The trial court granted both motions, holding in abeyance until termination of this appeal the determination of whether to dismiss the action as to the defendants St. Regis Paper Company and Northern Pacific Railway Company. King County appeals.

The proposed right-of-way, sometimes referred to as the “Lester Road,” has already been the subject of much dispute. It begins near the western King County community of Kangley and proceeds southeasterly through Seattle’s Cedar River Watershed, skirting the Howard A. Hanson Reservoir, and continuing through the center of Tacoma’s Green River Watershed to the community of Lester. Other •than infrequent and inconveniently timed railroad service, this road furnishes the sole means of ingress and egress for the town of Lester during several months of each year. The major portion of the existing road was built by the United States Forest Service in 1938, and is now designated Forest Service Road 212. That portion of the road which traverses the Cedar River Watershed is a Bonneville Power Company right-of-way to which King County has a permit of use.

We will treat the contentions of the parties as they pertain to the two orders separately. In granting Seattle’s motion for summary judgment, the trial court based its order upon several grounds:

(1) That King County lacks specific statutory authority to condemn property owned by another municipal corporation;
(2) That the property sought to be condemned from The City of Seattle is property already devoted to a public use, namely a municipal watershed for the protection from pollution of the water supply of The City of Seattle, and that King County lacks specific statutory authority to condemn property already devoted to a public use;
[690]*690(3) That the present public use is a higher and superior public use than the public use for which King County seeks said property; and
(4) That RCW 8.08.090 has no applicability to this action; ....

With regard to the granting of this motion, King County first assigns error on the basis that there is an issue of fact whether the road 'area which crosses the Cedar River Watershed is devoted to a public use. We need not determine whether such a factual issue exists, since the first ground for the trial court’s order furnishes an adequate basis for its order regardless of the issue, if there be one, of public use.

It is King County’s contention that it derives authority to condemn property owned by Seattle, which is not devoted to public use, under the general condemnation statutes authorizing counties to condemn land and property for public use within its boundaries. RCW 8.08.010 to RCW 8.08.080. Seattle argues that since these statutes do not delegate specific authority for a county to condemn lands or property belonging to another municipal corporation, King County is without power to do so.

An examination of our cases, as well as the text authorities, discloses that statutes which delegate the condemnation power of the state to its political subdivisions are strictly construed; that such power must be given in express terms or by necessary implication; that the power of eminent domain is one of the attributes of sovereignty; and that “[l]ands belonging to a State cannot be taken under a general grant of power made by the legislature.” Lewis, Eminent Domain § 414, p. 746 (3d ed. 1909). Also, see Nichols, Eminent Domain § 3.213, p. 346 (Rev. 3d ed. 1964); Seattle v. State, 54 Wn.2nd 139, 143, 338 P.2d 126 (1959), and authorities cited; State ex rel. Tacoma School Dist. No. 10 v. Stojack, 53 Wn.2d 55, 330 P.2d 567, 71 A.L.R.2d 1064 (1958); State ex rel. Attorney General v. Superior Court, 36 Wash. 381, 78 Pac. 1011 (1904).

In the early case of Seattle & Montana Ry. v. State, 7 Wash. 150, 34 Pac. 551 (1893), we said: .

[691]*691Our eminent domain act, as applied to railroads (Gen. Stat., §§ 1569-70; Code Proc., title 9, chap. 5), must be construed, as are all such acts, as having regard only to the taking of private property, unless there is either express or clearly implied authority to extend them further. (Italics ours.)

This rule of construction was approved in State ex rel. Trimble v. Superior Court, 31 Wash. 445, 72 Pac. 89 (1903); State ex rel. Attorney General v. Superior Court, supra.

In State ex rel. Cle Elum v. Kittitas Cy., 107 Wash. 326, 181 Pac. 698 (1919), we said:

the law does not give the county the right to take a city’s property for county road purposes by implication; such right must, if it exist, be given expressly.

Consistent with this rule of construction of eminent domain statutes, we held in Tacoma v. Taxpayers, 49 Wn.2d 781, 307 P.2d 567 (1957), (reversed on other grounds, 357 U.S. 320, 2 L. Ed. 2d 1345, 78 Sup. Ct. 1209 (1958)), that even Where a statute specifically delegates to a city the power to condemn state-owned land it applies only to state lands not devoted to public use. We there said:

After a careful review of RCW 8.12.030 and RCW 80.40.010, and other statutes to which our attention has been directed, we do not find that the legislature has expressly authorized a municipal corporation to condemn .state-owned land previously dedicated to a public use; hence, we conclude that the city of Tacoma has not been endowed with the statutory capacity to condemn such lands.

It is significant to note that subsequent to State ex rel. Attorney General v. Superior Court, supra, that the then existing general statute, Laws of 1905, ch. 55, § 1, p. 84 (now codified as RCW 8.12.030), authorizing the exercise of the power of eminent domain by cities, was amended by Laws of 1907, ch. 153, § 1, p. 316, which expressly delegated the additional power to cities to condemn state, county and school lands.

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Bluebook (online)
414 P.2d 1016, 68 Wash. 2d 688, 1966 Wash. LEXIS 791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-county-v-city-of-seattle-wash-1966.