36 Wash. 381 | Wash. | 1904
Application was made here for a writ of review for the purpose of reviewing the action of the lower court in a condemnation proceeding. Hpon issu
The first contention urged by the attorney general is that there is no law authorizing the condemnation of common school lands for such a purpose as stated above. Our attention is directed to the history of legislation in this state upon the subject of the power of' corporations to condemn. In 1873 the legislature of the territory passed an act entitled, “An act to provide for the formation of corporations.” Laws 1873, p. 398. The act repealed all former laws'upon the subject. It was subdivided into four chapters. The third chapter is prefaced by the following words: “Corporations when authorized to appropriate land for corporate purposes.” We fail to find in said chapter any expression that directly, or by implication, confers power upon corporations to condemn lands belonging to the state. It is true, the first section states that corporations organized for certain purposes “shall have a right to enter upon any land between the termini thereof, etc.” The following remark made by this court in Seattle & Montana R. Co. v. State, 7 Wash. 150, 34 Pac. 551, 38 Am. St. 866, 22 L. R. A. 217, is pertinent:
“As well might it be contended that because a railroad is authorized to enter upon and condemn ‘any’ land for its tracks, depots, shops, round houses, etc., it could, by*383 serving notice upon the auditor of Thurston county, take the entire ten acres upon which the state capitol stands for a depot and shops.”
The entire context of the chapter shows that the legislature was considering lands of private ownership, and also the right to appropriate portions of public highways or public grounds. The term “public grounds” cannot be said to comprehend common school lands, but rather tracts that are used and occupied for some public purpose. The act of 1873 conferred no authority to condemn any lands except upon corporations organized for the construction of “any railroad, macadamized road, plank road, clay road, canal, or bridge.” It will thus be seen that the purposes of the condemnation, in the case at bar, as stated above, are not comprehended in the act of 1873, even as relates to private property. The legislature of 1879, however, passed an act amendatory of that of 1873. See, Laws 1879, p. 134. The first section of the act is as follows:
“That all corporations, authorized to do business in the territory, and who have been or may hereafter be organized for the purpose of erecting and maintaining flumes or aqueducts to convey water for consumption or for mining, irrigation, milling or other industrial purposes, shall have the same right to appropriate lands for necessary corporate purposes, and 'under the same regulations and instructions as are provided for other corporations in the act to which this is amendatory, and such corporations organized for such purposes, in order to carry out the object of their incorporation, are authorized to take and use any water not otherwise legally appropriated or legally claimed.”
That section appears to confer power to appropriate lands for such corporate purposes as are sought to be accomplished here. It will be noticed, however, that the new statute does not enlarge upon that of 1873 as to what
“In ease tbe land, real estate, premises or other property sought to be appropriated is state, school or county land, tbe notice shall be served on tbe auditor of tbe county in which the land, real estate, premises or other property sought to be appropriated is situated.”
From the fact tbat tbe words “state, school or county land” are used as above quoted, it is argued here that tbe power to condemn such lands exists, and is applicable to tbe subject matter of this ease. At tbe time of tbe passage of this act there was no law authorizing the condemnation of school lands; at least, our attention has not been called to any such statute. If the power to condemn exists in the said statute of 1890, it is discoverable by implication only. In using tbe words, the legislature was speaking of the manner of serving tbe notice in condemnation cases, and tbe words were clearly intended to apply only to cases where tbe power to condemn should be created by other independent acts. Tbat tbe legisla
Bland’s Ch. (Md.), 95; Belcher Sugar Ref. Co. v. St. Louis Grain Elev. Co., 82 Mo. 121; Matter of Water Com'rs of Amsterdam, 96 N. Y. 351; Miami Coal Co. v. Wigton, 19 Ohio St. 560. Since the rule prevails that condemnation statutes must be strictly construed, as far as they relate to the taking of private property, it follows, with even more force,' that the same rule must apply where the lands of the .sovereign are sought to be taken. In Hollister v. State (Idaho), 71 Pac. 541, the court well said:
“That a people in their collective capacity, exercising the rights, privileges, duties and obligations of sovereignty, cannot he sued except by their consent is a principle too well established to require discussion.”
The state also argues, extensively, that condemnation should be denied for the reason that the use sought to be made of the land is not a public one, within the 'doctrine of Morris v. Healy Lumber Co., 33 Wash. 451, 74 Pac. 662. In view of the fact that this corporation has not the power, in any event, to condemn the lands sought, it becomes unnecessary to discuss the question as to whether the use sought to be made of the lands is a private or public one.
The cause is remanded with instructions to the trial court to vacate the order of condemnation, sustain the demurrer to the petition, and grant the motion to dismiss the proceeding.
Pullebton, O. J, and Dunbab, Anders, and Mount, JJ., concur.