Lewis County v. Gordon

20 Wash. 80 | Wash. | 1898

The opinion of the court was delivered by

Reavis, J.

Action by respondent to condemn a right of way through appellants’ premises for a ditch, which had previously been constructed under the provisions of an act “ To provide for the construction, repairing and protection of drains and ditches for agricultural, sanitary and domestic purposes, and to provide for the organization of drainage districts,” approved March 19, 1890. Laws 1889-90, p. 652. The proceedings to condemn were -taken under the act approved March 19, 1895 (Laws 1895, p. 142, Bal. Code, §§ 3755-3762), entitled, “An act providing for the payment of expenses incurred in compliance with an act entitled, An act to provide for the construction, repairing and protection of drains and «ditches for agricultural, sanitary and domestic purposes, and to provide for the organization of drainage districts.’ ”, A trial was had without the intervention of a jury, and the facts found by the court.

The court found that on the 12th of August, 1890, a, petition was filed in writing with the board of county commissioners of the respondent, in accordance with § 4 of the act approved March 19, 1890, praying for the construction of a public ditch along the route designated, and at the same time petitioner filed his bond required by § 5 of said act, which bond was duly approved. Thereafter .the county commissioners, under the provisions of the act, undertook the construction of the ditch, and ordered the same surveyed by the county surveyor, in conformity to the provisions of the act; that the surveyor filed his-report, showing the location and survey of the ditch, with the estimates of the cost of location arid construction; that notices were given to the owners of the land over which the survey was made and the ditch located; that contracts were made for the construction of the ditch under the provisions of said act, and that the ditch was completed about the 8th day of July, 1894; that all the owners of the land had actual knowledge of the entry upon said lands and the construction of the ditch, during the progress of the work; that the commissioners, at the request of A. F. Gordon, one of the appellants, and under his instructions, placed a frame culvert over the ditch at the mouth of the same and covered it, at an additional expense of $380; that, subsequent to the construction of the ditch, the commissioners, under the provisions of the said act of 1890, assessed the lands benefited as provided in the act, and that none of the assessments were ever paid; that the cost of the construction and location of the ditch was $7,584.50. The court found that the route selected by the commissioners for the ditch was the natural and most practicable route for the drainage of the lands, and that all of the lands over which the ditch was constructed were low, wet and swamp lands, except lots 3 and 4 of appellants, and that the ditch afforded ample facilities for the proper drainage of the lands; that all of said lands were agricultural lands and, with proper drainage, valuable for agricultural purposes. The court assessed the damages for right of way through appellants’ premises, irrespective of the benefits from the construction of said drainage ditch, and found as a conclusion of law that respondent was entitled to condemn the strip of land through appellants’ premises, and that the route selected for the ditch was practicable; that necessity exists for condemnation of the right of way through appellants’ premises; that the construction of the ditch is conducive to the public health, convenience and welfare.

Appellants have objected to several material findings of fact made by the superior court as not sustained by the testimony; but, after an examination of the evidence from the statement of facts, we are not disposed to disturb the findings. The compliance with the law of 1890 was substantially correct. The opportunity for appellants to be heard before the ditch was ordered constructed was given as required in the drainage law of 1890, and appellants also requested certain particular work to be done in connection with the ditch, which request was complied with by the county commissioners. TTo assessment was collected for the construction of the ditch, including the right of way, because the act of 1890, supra, was adjudged unconstitutional by this court in the case of Skagit County v. Stiles, 10 Wash. 388 (39 Pac. 116), following Askam v. King County, 9 Wash. 1 (36 Pac. 1097). The latter case involved the right of the county to condemn lands for right of way for a ditch for drainage purposes, and it was said that, under the provisions of the law, there was no attempt to have the damages incident to taking of private property assessed and compensated for in the first instance; and, if the property owner did not appear and himself take the initiative, the law provides that his property can be taken without there being an assessment of damages, and without the payment of any compensation whatever, and therefore was in conflict with § 16 of article 1 of the constitution. In Skagit County v. Stiles, supra, it was further adjudged that the whole act was unconstitutional, because of the failure to provide for compensation for land taken for right of way. By the law of 1895, supra, the legislature provided for the payment of expenses incurred in substantial compliance with the act of 1890. It is, however, urged by counsel for appellants, that the legislature could not validate the unconstitutional law of 1890 and authorize the payment of expenses incurred thereunder; and it is maintained that, the law of 1890 having been adjudged unconstitutional, it was as if no law had been enacted, and that no subsequent legislation could give such invalid law any validity. But the legislature in 1895 did not attempt to give virtue to the act of 1890. It did, however, recognize a moral obligation to pay expenses incurred under the law of 1890; arid' this it might do, and, though an act of the legislature may he unconstitutional, yet subsequent legislation may properly direct expenditures incurred under such legislation to he paid. 3 Am. & Eng. Enc. Law, p. 678; People v. Bradley, 64 Barb. 228; Ritchie v. Franklin County, 22 Wall. 67 (22 L. ed. 825).

The town of Ballard was incorporated in this state under act of Eebruary 2, 1888, which law was held unconstitutional in Territory v. Stewart, 1 Wash. 98 (23 Pac. 405). Afterwards the town attempted to reincorporate under act of March 27, 1890. The latter act was also

held void in Town of Denver v. Spokane Falls, 7 Wash. 226 (34 Pac. 926). After the attempt to reincorporate was made, proceedings were taken for the improvement ■of a large number of streets in the city, and assessments were levied to pay the expenses. The assessments were not paid, and street grade warrants were issued by the city to contractors in payment of labor and material. These warrants were presented, but not paid; and on March 9, 1893, the legislature legalized and validated the reincorporation of the towns and cities under the act of March 9, 1890. It was ruled in State ex rel. Hemen v. Ballard, 16 Wash. 418 (47 Pac. 970), that contracts for local improvements in towns illegally incorporated under the acts •of 1888 and 1890 are expressly validated by laws of 1893, p. 183 (Bal. Code, § 705), providing for the legalization ■of towns which have attempted to incorporate or reincorpórate, and a reassessment for such improvements is aufhorized by Laws 1893, p. 226 (Bal. Code, §§ 1139-1149). See, also, Pullman v. Hungate, 8 Wash. 519 (36 Pac. 483); State ex rel. Traders’ National Bank v. Winter, 15 Wash. 407 (46 Pac. 644); United States v. Realty Co., 163 U. S. 427 (16 Sup. Ct. 1120).

The objection, that the title to the law of 1895 is insufficient to provide for an assessment according to benefits upon lands drained for the payment of right of way, is not tenable, under the decisions in this state. The law •of ,1895 is not special legislation. It applies alike to all lands and persons similarly situated, and where action is taken under its provisions to drain lands for the purposes mentioned in the act. Neither is the law open to the ■objection that private property is taken for private use. The construction of ditches for drainage of land otherwise useless for agricultural purposes is recognized as a public use. Cooley, Constitutional Limitations (5th ed.), p. 659.

It is not necessary that the public at large shall be benefited, but only that part of the public affected by want, of proper drainage or by the improvement to be made. Chesbrough v. Commissioners, 37 O. St. 508; Lewis, Eminent Domain, § 185; Wurts v. Hoagland, 114 U. S. 606 (5 Sup. Ct. 1086); Ellinghouse v. Taylor, 19 Mont. 462 (48 Pac. 757); Lindsay Irrigation Co. v. Mehrtens, 97 Cal. 676 (32 Pac. 802); In re Central Irrigation District, 117 Cal. 382 (49 Pac. 359).

Cooley on Taxation (2d ed.), p. 616, observes:

“ The expense of constructing drains in order to relieve-swamps, marshes and other low lands ... is usually provided for by special assessments. . . . But where any considerable tract of land, owned by different persons, is in a condition precluding cultivation, by reason of excessive moisture which drains would relieve, it may-well be said that the public have such an interest in the-improvement, and the consequent advancement of the general interest of the locality, as will justify the levy of' assessments upon the owners for drainage purposes. Such a case would seem to stand upon the same solid ground with assessments for levee purposes, which have for their object to protect lands from falling into a like condition of uselessness.”

See, also, Hagar v. Supervisors, 47 Cal. 222.

As observed by some of the authorities cited, it is sometimes difficult to draw a precise line of distinction between-the public and private objects of improvements of the-nature under consideration here. It is true, the owner of land may use it and cultivate it as he desires, so long-as he does not injuriously affect the rights of others. But the public also has an interest beyond that of the mere-sanitary condition of land, and founded upon other and different principles than the controlling or abatement of nuisances, where any considerable number of persons are concerned, or tract of land is useless, and improvements-may be made commensurate to tbe benefits received, and tbe land itself may be taxed for sucb benefits. The principle requires careful application, but many illustrations, of its existence can be found sustained by the highest ’ authority.

But the condemnation of right of way through the premises of appellants being for a public use, there only remains a consideration of the provision made for the payment for the injury to the land taken. The provisions made for such payment in the act under consideration here seem to be fully met and approved in the case of Hansen v. Hammer, 15 Wash. 315 (46 Pac. 332). In that case the act for establishing diking districts (Laws 1895, p. 304, Bal. Code, §§ 3673-3714) was construed,, and the court said:

“We are not disposed to hold the act unconstitutional. While the cost is to be paid for by an assessment upon the property benefited, authority can be given by the legislature ... to collect the assessments in advance of the commencement of actual construction. While the owners of land to be taken for a right of way have a right to compensation before they are dispossessed, whether by a municipal or any other corporation, and the money therefor must be provided in some manner for all such owners not waiving advanced payment, still all the preliminaries, including condemnation proceedings, to ascertain the cost and everything in advance of the commencement of actual construction, can be carried on and completed before it is necessary to take the land, and the decree of condemnation can provide for payment before the owner is dispossessed, and for a forfeiture of the right if not made within a reasonable time.”'

The judgment of the superior court is affirmed.

Sgott, C. J. and Awdebs and Gobdoít, JJ., concur.

Dunbab, J., dissents.