34 Wash. 347 | Wash. | 1904
The respondents in this appeal, who were the relators below, applied to the superior court for a writ of mandate directed to the respondents below, who are the appellants here. The affidavit in support of the application for the writ states, in substance, that on the 30th day of January, 1902, in an action entitled “In the Matter of the Petition of the City of Seattle, Condemnation Proceedings under Ordinance No. 6041, Rainier Avenue, Cause
The appellants, as respondents to the application in the superior court, answered that the judgment mentioned in relators’ affidavit was rendered in a proceeding brought by the city of Seattle, a city of the first class, under and by virtue of the laws of the state of Washington relative to the right of eminent domain in cities of the first class, and in pursuance of an ordinance providing for the condemnation of certain property to be used as a public street in said city; that in said proceeding a judgment was rendered against the city and in favor of one hundred and seventy-seven owners, aggregating the total sum of $8,442.50, as compensation for property taken or damaged, and in said
To the answer, which is in substance stated above, the relators demurred on the ground that it does not state facts sufficient to constitute a defense. The demurrer was overruled. The appellants elected to stand upon their said answer, and refused to plead further. Judgment was thereupon entered, directing the issuance of the peremptory writ prayed. This appeal is from that judgment.
We have, somewhat at length, set out the averments in the pleadings in order that the points raised by the ruling on the demurrer may be more readily understood. Appellants contend that an award to one or more individual owners of property proposed to be taken, in a condemnation proceeding by a eity of the first class, where the ordinance directing such proceeding provides for a local assessment, is not payable until the collection by the city of the entire amount of such local assessment. It is said by them that the constitution of the state, art. 1, § 16, gives the city the right to make payment into court. The following extract from that section is referred to as giving that right: No private property shall be taken or damaged for public or private use without just compensation having been first made or paid into court for the owner, . . It is also stated that said provision is carried into effect by the statute wherever the subject of payment is mentioned, and attention is called to the fact that the judgment relied upon
The argument, it seems to us, does not reach the real point involved here. Respondents are not asking any directions to appellants touching the custodianship of this condemnation fund. They are asking only the issuance of a warrant, drawn upon such fund, for the amount of their judgment. When the moneys have once been paid into such fund, they become a part of it, and must remain such until applied to the purposes intended. The mere deposit of the money in court, if done to carry out the purposes of the fund, would not remove it from the fund. If the city should insist upon the right to deposit the money in court, it must be done in trust for the purposes of the fund, and the surrender of the warrants drawn upon it would doubtless be required as a condition precedent to individual payments from such deposited fund.
The city may, however, satisfy this judgment as it does any other when the holders are willing to accept satisfaction in that manner. Following the provisions of §5676, Bal. Code, respondents have caused said judgment to be satisfied on the docket thereof, and have presented to appellants a transcript showing the judgment and its satisfaction of record. If the judgment is such as is contemplated by the above section, then they are entitled to their warrant. We see no reason why it is not such a judgment It ad
“All moneys received or collected by the treasurer upon assessments for any purpose authorized by this chapter shall be kept as a separate fund, and in nowise used for any other purpose whatever, except for the redemption of warrants drawn against such fund.”
The above section applies to this fund, and we think in reason it is contemplated that warrants shall he drawn to the order of the several judgment holders in the condemnation proceedings. When the transcript of the satisfied judgment is presented, and the warrant issued, the latter thereafter becomes the evidence of the city’s obligation. It represents a liquidated sum, which the city is obligated to pay from a given fund. We do not see that any confusion can arise as to the proper parties to receive payment, as suggested by appellants. This is not a demand for cash, but for a warrant representing cash. If the property holder were demanding cash before possession taken by the city, a different question would be presented as to his constitutional right to a money compensation as a condition precedent to such possession. Appellants are, however, asking a warrant only, and we think it is their right to have it.
It is assigned that the court erred in directing the issmanee of a warrant including interest on the amount of the judgment from the date thereof. The first suggestion in support of this assignment is that the adjudication of condemnation and the award of damages is not a judg
It is further urged that § 776, Bal. Code, authorizes the city to provide the entire cost by local assessment, and that it is impossible for the commissioners making the assessment in such proceedings to determine the amount of interest that may become due the holders of the condemnation judgments, and provide for its payment by assessment. This argument is based upon the theory that the commissioners would have no means of determining when the assessments would be paid or collected, so as to make it possible to pay the awards to the property holders. A possible deficit of tide kind mentioned would largely be covered by the ten per cent penalty, which must be added to the amount of the assessment upon the day of sale, under § 808, Bal. Code. If there are no delinquent payments, the amount of accumulated interest must be small, and if the sale of delinquent property is timely made, the penalty will largely meet the accumulated interest. In any event, the law authorizes, and the city in this instance provided, that whatever sum is not assessed against the property shall be paid by the city out of its general fund. That the judgment in question is such as bears interest from the date of its entry, see, Alloway v. Nashville, 88 Tenn. 510, 13 S. W. 123, 8 L. R. A. 123; Plum v. City of Kansas, supra; 2 Lewis, Eminent Domain (2d ed.), § 499; 3 Sutherland, Damages (2d ed.), § 1091.
But may the judgment holder retain the rents and profits of the land, and for the same time recover interest upon the condemnation award? Respondents urge the following quotation from Plum v. City of Kansas, supra, as applicable to this point:
“The long delay in reaching the end of the condemnation case arose from the acts of other parties. During it the plaintiff remained in possession of the land, but his enjoyment and use thereof were not such as belonged to complete ownership. His tenure then, might be characterized as a sort of base or qualified fee, liable to be. determined at any moment by the issue of the appellate proceedings. He could not, with any degree of confidence, improve the property, or make any but the most transient agreements for its use. He could not dispose of it except subject to the paramount public easement which had become impressed upon it. So far as concerned his bene*356 ficial rights as owner, the judgment of condemnation amounted to the ‘taking’ of tire property for public use, and the price for such taking then became justly due him.”
It will he observed that the above quoted argument goes only to the point that, under the circumstances detailed, the condemnation judgment amounted to a taking, and the owner was entitled to the price for such taking, but it does not say that interest on that price may he collected without accounting for rents when the owner remains in possession.
In that case it was held, as we have seen, that the judgment of condemnation draws interest, hut there, as in the case at bar, the owner remained in possession for a time, and the court expressly held that it would he inequitable to permit him to recover interest and at the same time retain the benefits of the possession held by him, meanwhile, as trustee for the city. The landholder sought to enjoin the city from taking possession without paying lawful interest from the date of the award of damages. The court stated that before obtaining relief he should do equity, and should account for rents and profits which accrued to him after the condemnation. Thus, in a measure, the rents and profits were held to offset the interest. But that the one was the necessary legal equivalent of the other was not held. Neither can it he so held here. The rate, of interest upon the judgment is fixed by law, but the value of rents and profits depends upon market conditions. We think the rule followed in the Missouri case cited is eminently just, and under that rule the respondents here are not entitled to a warrant including interest, inasmuch as there has been' no accounting for rents and profits. If an accounting' were here, and an excess of interest over rents appeared, respondents would he entitled to have such excess in-
The judgment is sustained as far as it relates to the principal sum of the condemnation judgment, but it should be modified to the extent of excluding from the warrant interest upon the judgment. The cause is therefore remanded, with instructions to modify the judgment in accordance with what is said above. Appellants shall recover costs.
Anders, Mount, and Dunbar, JJ., concur.