76 Wash. 376 | Wash. | 1913
This is an original application for a writ of prohibition, and in the alternative for a writ of review.
On October 7,1910, Ham, Yearsley & Ryrie, a corporation, instituted eminent domain proceedings against the Northern Pacific Railway Company, a corporation, Arthur L. Pettigrew, F. S. Pettigrew, R.. F. Pettigrew, and Bessie Pettigrew, his wife, “and all unknown owners and all persons unknown having or claiming an interest or estate in the lands affected by the action,” to condemn certain lands at the outlet to Moses lake, in Grant county, averring in its petition that the land was to be used for the purpose of constructing a dam across the outlet of such lake, and “thereby raise the height of the water to said Moses lake and to convert the said Moses lake, which is now a large navigable body of water, into a storage reservoir” for water to be used in irrigating certain of its arid lands.
The defendants served with process in the proceedings were those individually named in the petition. These appeared and put in issue the allegations of the petition, and a trial on the issues made resulted in a judgment in the superior court denying the right of the petitioners to condemn. A review of the proceedings was taken to this court, where the judgment of the superior court was reversed, with directions to enter an order of condemnation for the land necessary to be taken for the dam site, and to proceed to ascertain the damages to be awarded to owners of the land for such taking in the manner provided by law. State ex rel. Ham, Yearsley & Ryrie v. Superior Court, 70 Wash. 442, 126 Pac. 945.
The relators thereupon tendered an answer in the proceedings, supported by affidavits, in which it was alleged that the present relator F. H. Nagel had acquired, by mesne conveyances from the Northern Pacific Railway Company, and the other defendants, by mesne conveyances, all their right, title and interest to the land sought to be condemned, in trust, however, for other persons; that he, in his trust capacity, and the other present relators are possessed of the sole right to the use of the waters of Moses lake, which such right was acquired by purchase and appropriation prior in point of time to the purported appropriation of Ham, Yearsley & Ryrie, and which had been perfected and completed by actual storage of the waters, and by diversion and use of the same upon lands owned by them abutting upon and adjacent to such lake, and that their rights to use of such waters had not been adjudicated in the proceedings leading up to the order of condemnation. They further alleged abandonment of the project by'Ham, Yearsley & Ryrie, after their purported appropriation, delay, such as to work a forfeiture of any rights that corporation may have acquired by its attempted appropriation, and further facts, all tending to show a want of
The questions presented by the record do not, in our judgment, require an extended discussion. The writ of prohibition, it must be remembered, arrests the proceedings of a court of record only when such court is acting without or in excess of its jurisdiction, and there is no plain, speedy and adequate remedy at law. Rem. & Bal. Code, §§ 1027, 1028 (P. C. 81 §§ 1781, 1788). It will not restrain the erroneous exercise of acknowledged jurisdiction. Here there was no question of the jurisdiction of the court to make the order it did make. Whether it would, in this proceeding, set aside its .former order of condemnation and try anew that question, or whether it would relegate the parties to a separate and independent action to try the question and proceed with the trial of the question of damages actually before it, were matters wholly within its jurisdiction to determine, and prohibition will not lie to control its action, whether it acted erroneously or otherwise. State ex rel. Foster v. Superior Court, 30 Wash. 156, 70 Pac. 230, 73 Pac. 690; State ex rel. Griffith v. Superior Court, 71 Wash. 386, 128 Pac. 644.
Nor will the writ of review lie at the present stage of the proceedings. The order made was intermediate and interlocutory, and if it is subject to review at all, a question we do not now determine, it can only be reviewed after the final judgment in the cause is entered.
Some question was made at the argument as to the conclusiveness of the order of the court denying the relators the
The application for the writ is denied.
Crow, C. J., Parker, and Morris, JJ., concur.