57 Wash. 225 | Wash. | 1910
Appeal from a decree of the lower court enjoining appellant from entering upon certain lands in King county, cutting and removing timber therefrom,- and also from constructing a logging railroad upon and across the lands. The facts, except a few that are not material to this discussion, are admitted, and from them it appears that, in
Respondent made a motion for a new trial, which being denied, a decree was duly entered, awarding “the fee simple” to the land to the city, upon payment of the sum fixed in the verdict, which was subsequently paid into court from the city’s general fund, and the same was withdrawn by respondent. In 1907 the city passed an ordinance whereby it granted a license to appellant to construct a logging railroad over the lands, such right to exist for ten years. Appellant entered upon the lands for the purposes granted in its license, when respondent brought this action to restrain it, claiming to be the owner of the lands as against all persons save the city, and that the use of the city was confined to the express uses and purposes indicated in its condemnation petition, which did not include the construction of railroads, and that the building of the railroad created an additional burden upon the land. This was the view taken by the trial judge, and the ground upon which the injunction was decreed.
Under the petition upon which the condemnation case was tried and the decree therein entered, the city acquired the absolute fee to the land. We must assume that, in the use of the words “fee simple” in the petition, it was the express purpose and intention of the city to acquire the absolute title, and such purpose and intention was found by the court to be a public and necessary use in its decree of appropriation, and that the subsequent use of the expression in the
“Where a fee simple is taken, the weight of authority is that there is no reversion, but, when the particular use ceases, the property may, by authority of the state, be disposed of for either public or private uses.” Lewis, Eminent Domain (2d ed.), § 596.
See, also, 2 Dillon, Municipal Corporations (4th ed.), § 589.
This question was directly before this court in Seattle Land & Imp. Co. v. Seattle, 37 Wash. 274, 79 Pac. 780, where the city condemned land for a public park and after-wards used the same to erect thereon an “In Town Terminal Substation,” for use in connection with its lighting plant, and it was there said that,
“Where property is taken, and paid for from the general fund, with the intention of using it for a certain purpose specified in the ordinance authorizing the taking, as was. done in this case, the city, doubtless, has the authority to change said contemplated use to another and entirely different use, whensoever the needs and requirements of the city suggest.”
In that case stress was laid by the court upon Rem. & Bal. Code, § 7507, subd. 3, wherein it is provided that cities of the first class shall have power “to acquire, by purchase or
In Gasaway v. Seattle, 52 Wash. 444, 100 Pac. 991, 21 L. R. A. (N. S.) 68, it was sought to obtain a tax title to certain lands acquired by the city under the same condemnation proceedings reviewed here, and in referring to the title of the city to the lands there in controversy, it is said:
“It is a necessary deduction from the premises that the city took the full fee simple title and the interest, both present and prospective, of all concerned in the property.”
These cases and the reasoning and authority upon which they are based are decisive of the questions here presented.
Respondent places much reliance upon the case of Spokane v. Colby, 16 Wash. 610, 48 Pac. 248, in which it appears that the city of Spokane had condemned land “for the purpose of securing a right of way to lay and maintain a pipe line to connect its pumping station with its distributing station.” Afterwards the city made a contract with a telephone company to construct a line from the pumping station to a central fire station, and we held the erection of such a telephone line was an additional burden or element of damage, and could not be enforced upon the rights obtained by the city in the original condemnation proceedings.
It is apparent that the right obtained by the city in that case was a mere easement in the land, a right to use only for the purpose of the specific easement granted, and that
Rudkin, C. J., Gose, Chadwick, and Fullerton, JJ., concur.