73 Wash. 693 | Wash. | 1913
This is an appeal by the city of Spokane, from an order of the superior court of Spokane county, dismissing a special assessment proceeding, upon motion of owners whose property was sought to be assessed by eminent domain commissioners to pay costs and expenses incurred by the city in an eminent domain proceeding, looking to the widening and extension of Monroe street in that city. The facts determinative of the right of the city to'have the assess
The eminent domain and special assessment proceedings here involved were instituted under our statutes relating to the exercise of the power of eminent domain by municipal corporations, Rem. & Bal. Code, § 7768, and following. On April 26, 1910, the city passed an ordinance providing for the widening and extension of Monroe street, for the prosecution of condemnation proceedings to acquire the necessary land therefor, and for the payment of compensation to be awarded owners of such land, by the levy of special assessment upon the property to be benefited by the widening and extension of the street. Thereafter condemnation proceedings were accordingly instituted, resulting in verdicts in favor of the owners whose lands were proposed to be taken fixing the amounts of their compensation. Thereafter, on June 22, 1911, judgment was entered upon the verdicts in favor of the several landowners for the amount of their respective awards and for their costs.
On July 18, 1911, the city passed an ordinance declaring its abandonment and discontinuance of the proceedings, and providing for the payment of all costs taxable in favor of the defendants to whom awards of compensation had been made. On August 17, 1911, the auditor of the city caused to be issued and delivered to the clerk of the superior court warrants upon the city treasurer payable to the several defendants in the condemnation proceeding sufficient in amount to cover all of the sums awarded to the several defendants, including their taxable costs, which warrants were delivered to and accepted by the defendants. At the /time of the delivery of these warrants to the clerk of the superior court, there does not appear to have been any authorization by the city council for the payment of the judgment fixing the amount of compensation awarded to the defendants; the city council having only authorized the payment of their costs, which we have noticed was provided for by the ordinance pur
The learned trial court evidently proceeded upon the theory that, when the city passed the ordinance declaring its abandonment and discontinuance of the condemnation proceeding, and the city auditor delivered to the clerk of the superior court the warrants for the payment of the defendants’ costs, though the warrants were also for an additional amount sufficient to cover the award made to the several defendants, the discontinuance of the proceedings thereby became effective so as to prevent the city and the defendants, even by common consent, considering the proceedings as not abandoned and
“At any time within two months from the date of rendition of the last judgment awarding compensation for any such improvement in the superior court, or if any appeal be taken, then within two months after the final determination of the appeal in the supreme court, any such city may discontinue the proceedings by ordinance passed for that purpose before making payment or proceeding with the improvement by paying or depositing in court all taxable costs incurred by any parties to the proceedings up to the time of such discontinuance. If any such improvement be discontinued, no new proceedings shall be undertaken therefor until the expiration of one year from the date of such discontinuance.”
A critical reading of the statutes relating to eminent domain and special assessment proceedings, such as are here involved, will render it apparent that, while these proceedings are ordinarily conducted as one case in the superior court, they are, in substance, two separate proceedings. The defendants in the condemnation proceeding proper are brought into court by summons to respond to the issues involved in the taking of their property and awarding compensation therefor and none other; while the defendants in the assessment proceeding thereafter to be commenced by supplemental petition, as provided by Rem. & Bal. Code, § 7787, are brought into court by another notice which is in effect an original process (Rem. & Bal. Code, § 7792), to respond to the issues involved in the assessment of their property to pay the costs and expenses incurred in the condemnation proceeding. The defendants in the respective proceedings are not necessarily the same persons. Indeed, they are seldom, if ever, all the same persons. Having this comprehensive view of the statute before us, let us inquire what are the rights of these two classes of defendants touching the abandonment and discontinuance of the condemnation proceeding as provided by § 7816 above quoted, during the two months following the entry of the judgment in that proceeding.
We conclude that the order of dismissal must be reversed and the cause remanded to the superior court for further proceedings not inconsistent with the views herein expressed.
It is so ordered.
Cnow, C. J., Mount, Gose, and Chadwick, JJ., concur.