100 Wash. 481 | Wash. | 1918
Relators,by this writ, seek a review of the order of the lower court dismissing condemnation proceedings as to lands of the relators. The condemnation proceedings were commenced in the lower court on September 7, 1909, by the Chicago, Milwaukee & Puget Sound Railway Company, seeking to condemn,
These facts present the question whether or not the railway company abandoned the condemnation proceedings. We think it clear that it has done so, and that such abandonment took place when it filed its motion to dismiss on September 2,1910, which was within a reasonable time after the return of the verdict awarding damages. Further evidence of abandonment is shown by the fact that the railway company, upon building its line into Spokane from the east, abandoned that part of the route crossing relators’ lands and proceeded by a different route under a trackage agreement with an established railway line. That a railroad may abandon condemnation proceedings after the award of damages is well settled in this state. Port Angeles Pac. R. Co. v. Cooke, 38 Wash. 184, 80 Pac. 305; Port Townsend Southern R. Co. v. Barbare, 46 Wash. 275, 89 Pac. 710. Such is also the general rule, in the absence of statutory provisions. Nixon v. Marr, 190 Fed. 913, 36 L. R. A. (N. S.) 1067; Cunningham v. Memphis Railroad Terminal Co., 126 Tenn. 343, 149 S. W. 103, Ann. Cas. 1913E 1058-1062; Lewis, Eminent Domain (2d ed.), § 656.
The reason for this rule, in states with constitutional and statutory provisions such as ours, is that the land cannot be taken until the damages have been first ascertained and paid. Until that time the rights of the parties have not changed. The condemning party has acquired nothing and the landowner has lost nothing. By the same reasoning that prevents the condemning
The reason for the long delay in this case is apparent. The railway company regarded the condemnation award as excessive and did not desire to appropriate the lands of the relators at that price. Relators obtained an award which they desired to enforce as a money judgment and not subject themselves to the chances of a second condemnation or the return of a smaller award. If relators’ desire had been only to clear their lands of the condemnation proceedings, they could, at any time after the railway company had filed its motion to dismiss, have obtained an order from the lower court dismissing the proceedings on the ground of abandonment; they cannot, therefore, throw the whole burden of this delay upon the railway company, since the opportunity to proceed was as much within their power as within that of the railway company.
We find no error in the order complained of, and the writ is denied.