73 Wash. 188 | Wash. | 1913
The respondent commenced this action on December 23, 1908, to condemn certain real estate situated in the city of Spokane, the legal title to which was at that time in the Northwestern & Pacific Hypotheek Bank. The appellants held a contract to purchase the property, upon which there was a balance owing to the bank. The order of public use and necessity was regularly entered, and in March, 1909, the cause was tried to a jury, which returned a verdict assessing the damages at $85,000. Thereupon, the respondent paid to the clerk of the court the sum of $85,111.05, covering the award and costs, and procured the entry of a decree and judgment for the amount of the verdict and $111.05 costs, and decreeing that the land described “be and the same is hereby appropriated to the use of the petitioner, the North Coast Railroad Company, a corporation, and the legal title is hereby vested in said corporation.” The appellants here, as defendants in the original action, appealed from the award made in the original decree. This court reversed that judgment, and remanded the cause for a new trial upon the issue
In October, 1910, a second trial was had on the issue of damages, in which the jury assessed the damages at $96,-868.75. A judgment and final decree of condemnation was entered on November 18, 1910, and on the same day the full amount of that judgment and costs, amounting to $97,192.25, was paid into court by the respondent, and was by the clerk of court paid over to the appellants’ attorneys, and the second judgment was satisfied of record. Between the first and second trials, general taxes for the year 1909 accrued and became a lien against the property in the sum of $597.72, with interest thereon at the rate of fifteen per cent per annum from June 1, 1910. On May 26, 1911, respondent filed a petition setting up the foregoing facts, except that it made no reference to the first trial or the payment of the amount of the judgment therein to the clerk, nor its withdrawal by the respondent. The petition prayed for an order requiring the appellants to answer and show cause why they should not be required to pay into the registry of the court a sum sufficient to liquidate these taxes, and that upon final hearing an order be made to that effect, and for general relief. The appellants appeared and filed an affidavit setting forth the facts substantially as above stated, which affidavit was not contro
Both parties concede that the taxes must be paid by the party in whom the title was when the lien of the taxes attached. The appellants contend that the first decree of appropriation vested the legal title of the real estate in the respondent for corporate purposes; that by the appeal the propriety and justness of the amount of damages was the sole question in issue; that respondent had no right to withdraw the money paid to the clerk; and that its withdrawal in no manner divested the title acquired by the first decree. The respondent makes the counter contention that the condemnation could have been abandoned at any time prior to the entry of the last judgment and payment of damages thereby awarded to the parties entitled thereto, and that, therefore, no title passed by the first decree of appropriation.
The exact question here presented has never been determined by this court. It must be solved by reference to the statute governing the exercise of the right of eminent domain. That statute (we cite Hem. & Bal. Code by section number), so far as here material, is as follows:
“Sec. 927. At the time of rendering judgment for damages, whether upon default or trial, if the damages awarded be then paid, or upon their payment, if not paid at the time of rendering such judgment, the court, or judge thereof, shall also enter a judgment or decree of appropriation of the land, real estate, premises, right of way, or other property sought to be appropriated, thereby vesting the legal title to the same in the corporation seeking to appropriate such land, real estate, premises, right of way, or other property for corporate purposes.”
Section 929, after providing that, upon the entry of the judgment, the condemner may pay the damages assessed and costs by depositing the same with the clerk of the superior
“And in that case, only for the amount in excess of the sum paid into said court, and the costs of appeal; Provided, that in case of an appeal to the supreme court of the state by any party to the proceedings, the money so paid into the superior court by such corporation as aforesaid shall remain in the custody of such court until the final determination of the proceedings by the said supreme court.”
Section 931 gives a right of appeal from the judgment for damages, declares that “such appeal shall bring before the supreme court the propriety and justness of the amount of damages,” and provides that no bond shall be required of the person interested in the property sought to be appropriated; but that if the condemner is appellant, it shall give a bond like that prescribed in the following section. The next section is as follows:
“Sec. 932. The construction of any railway surface tramway, elevated cable tramway, or canal, or the prosecution of any works or improvements by any corporation as aforesaid shall not be hindered, delayed or prevented by the prosecution of the appeal of any party to the proceedings: Provided, the corporation aforesaid shall execute and file with the clerk of the court in which the appeal is pending a bond to be approved by said clerk, with sufficient sureties, conditioned that the persons executing the same shall pay whatever amount may be required by the judgment of the court therein, and abide any rule or order of the court in relation to the matter in controversy.”
The respondent paid into court the amount of the original judgment and costs and procured a decree of appropriation. Under the positive terms of the statute (§ 927), it thereby became vested with the legal title for its corporate purposes. The language can mean nothing else. It is too plain for construction. The appeal from the award did not ipso facto
“The weight of authority undoubtedly is that, in the absence of statutory provisions on the question, the effect of proceedings for condemnation is simply to fix the price at which the party condemning can take the propeiiy sought,*194 and that even after confirmation or judgment the purpose of taking the property may be abandoned without incurring any liability to pay the damages awarded.”
Our statute does not in express terms define or fix the limits of the right of abandonment, but in the main leaves the question open to be decided upon general principles. There is, however, one provision of the statute which by necessary implication limits the right of abandonment. Section 929 provides that, in case of appeal, the money which has been paid into the superior court shall remain in court until final determination of the appeal. The plain inference is that the payment of the money suspends the right of abandonment pending the appeal. The respondent’s withdrawal of the money was in direct violation of the terms of this section. It did not, and could not, operate as an abandonment. The money remains in court as earnest that the condemnation will not be abandoned pending the appeal. By its deposit there was an election to take and retain, pending the appeal, the title vested by the terms of § 927. Under a similar provision in a statute of Nebraska, which did not undertake to declare when rights should become vested, as ours does, the supreme court of that state held that a condemning railroad company could not, after an appeal to the district court and judgment upon an award of the commissioner appointed to assess the damages, abandon the location and avoid payment. Drath v. Burlington & M. R. Co., 15 Neb. 367, 18 N. W. 717.
If in the case before us, on the original appeal there had been an affirmance of the original judgment for damages, the right of abandonment so suspended by payment of the award into court would have been forever lost, and the respondent’s title would have related to the date of the original judgment and decree of appropriation, not to the date of affirmance. Without doubt the respondent would have then taken the land subject to the taxes which accrued pending the appeal. In such a case, it would be absurd to say that it could charge these taxes against the appellants, or against the fund in
The cases cited by the respondent are not pertinent. In Seavey v. Seattle, 17 Wash. 361, 49 Pac. 517, the appeal was by the city from a judgment entered at the instance of the landowner. The award could only be paid by assessments against the property benefited. No money had been
The order appealed from is reversed.
Mount, Fullerton, Main, and Morris, JJ., concur.