55 Wash. 392 | Wash. | 1909
This action was commenced by the Olympia Light & Power Company,, a public service corporation, in the superior court of Thurston county, under the eminent domain act, against the Olympia Brewing Company, a corporation, to condemn certain water rights and an easement. The defendant affirmatively alleged that it was the owner in fee of the property, sought to be condemned; that on July 9, 1907, the Tumwater Power & Water Company, a public service corporation, was incorporated and organized under the
Upon permission first obtained by order of court, the Tum-water Power & Water Company filed its complaint in intervention, setting up its rights .to the water power and easement, as lessee of the Olympia Brewing Company; alleging that it had devoted the same to a prior public use; that it held, by assignment, a franchise from the town of Tumwater, granting it the use of streets and alleys for laying mains and supplying the inhabitants of the town with water, and also the right to supply them with electricity for lighting, heating, and power purposes, and asked that the petition be dismissed. The petitioner interposed separate demurrers to the answer and complaint in intervention, which being sustained, the intervener declined to plead further, and an order was entered dismissing its complaint in intervention. From this order it has appealed.
The respondent has moved to dismiss the appeal. This is a condemnation proceeding. It is prosecuted under the eminent domain act, a special statute defining procedure in such cases, and authorizing an appeal for the sole purpose of presenting to this court the question of the propriety and justness of the amount of damages in respect to the parties to the appeal. Bal. Code, § 5645 (P. C. § 5110). No damages have yet been awarded, and it is evident that no appeal authorized by the eminent domain act could be prosecuted by an original party from the order here involved. In Western American Co. v. St. Ann Co., 22 Wash. 158, 60 Pac. 158,
The appellant contends that it is entitled to maintain this appeal under the general statute (Bal. Code, § 6500 et seq.; P. C. § 1048), for the reason that it was not an original party; that it is an intervener; that no order adjudging a. public use has been entered; that no damages have been awarded; that it has been improperly dismissed from the action, and that it is entitled to prosecute the appeal for the purpose of securing its reinstatement, so that it may contest respondent’s right to condemnation, and resist the obtaining of an order adjudging a public use. We fail to understand how the appellant, after filing its complaint in intervention, can be recognized or treated otherwise than as a party to the action. Fairfield v. Binnian, 13 Wash. 1, 42 Pac. 632. It is manifest that it could not thereafter occupy a more favorable position than if it had been an original party. The eminent domain act confers upon it no further or additional rights. After it had intervened, it was a party to a proceeding prosecuted under a special statute, which expressly limits, the right of appeal.
The appellant, however, insists that as an intervener it is. entitled to prosecute this appeal under the general appeal act. The difficulty with this position is that it would necessitate one method of procedure to be adopted by an original party in a condemnation proceeding, and a different and inconsistent method for an intervener. In other words, the Olympia Brewing Company as an original defendant would have to apply to this court for a writ of certiorari to secure
As this court, in State ex rel. Pagett v. Superior Court, 46 Wash. 35, 89 Pac. 178; State ex rel. Alexander v. Superior Court, 42 Wash. 684, 85 Pac. 673, and other condemnation cases, recognized the right of a party to a review by certiorari of an order adjudging a public use, the appellant seems to infer that it could not proceed by certiorari, for the reason that the order here involved was not one of that character. As no public use has yet been adjudged, it insists that it can only obtain reinstatement as an intervener by appeal, or that it would be without remedy. The difficulty with the appellant’s argument is that, in its final analysis, it appears to be predicated on the assumption that an order adjudging, or refusing to adjudge, a public use, is the only one that can be reviewed by certiorari. This, however, is not an accurate
The appeal is therefore dismissed.
Mount, Dunbar, Parker, and Morris, JJ., concur.
Rudkin, C. J., Fullerton, Gose, and Chadwick, JJ., dissent.