46 Wash. 35 | Wash. | 1907
On December 22, 1906, Pierce county, acting through its board of commissioners, began proceedings in the superior court of that county to condemn certain lands belonging to the relators, for a right of way over which to establish a county road. At the time appointed for the hearing, the relators appeared and demurred to the petition on the ground, among others, that the court was without jurisdiction over the subject-matter of the proceedings. The demurrer was overruled, and a hearing had at which the court adjudged the proposed use of the property to be a public
With reference to the first objection, it is provided by the statute that the county commissioners in the establishment of roads, in cases where the owner of the land does not accept the award the county makes him, shall direct proceedings to procure a right of way to be instituted in the superior court' in the manner provided by law for the taking of private property for public use under the statutes.of eminent domain, and of course the procedure provided in that statute governs the proceeding in the superior court. In the case of Western American Co. v. St. Ann Co., 22 Wash. 158, 60 Pac. 158, we held that the statute of appeals relating to proceedings in eminent domain permitted an appeal only from the propriety and justness of the amount of damages awarded, and did not permit an appeal from the order of condemnation. In numerous subsequent cases we have held that this order could be reviewed by the writ of review, and to so review it has become the established practice. Our attention is called to the statute of 1901, p. 213, as allowing an appeal from this order, but that statute was held invalid, in State ex rel. Seattle Elec. Co. v. Superior Court, 28 Wash. 317, 68 Pac.
As to the second objection, it may be that certain matters are enumerated in the relator’s petition and assigned as error which are not subject to review in this court for the reasons asserted by the county, but clearly there are questions suggested by the petition that are reviewable. Without prejudging the case upon its merits, it may be suggested that the question whether the contemplated use of the property is really a public use is made by the constitution a judicial question, notwithstanding any legislative assertion that the use is public, and, certainly, when a court of original jurisdiction makes an order declaring a particular contemplated use of property to be a public use, this court has power to review that order when the question is properly brought before it. But what questions suggested by the relators are reviewable and what of them are not, can best be determined at the hearing upon the merits.
The writ applied for will be granted, returnable in this court on May 1, 1907, at which time the clerk will assign it for argument with the appeal cases from Pierce county at the May, 1907, session of this court. The relators will prepare a printed brief , and serve the same on the attorney for the respondents on or before April 17, 1907, and the respondents will have twenty days thereafter to serve and file an answering brief. The heading ordered for the purpose of assessing the amount of damages to be awarded the relators will be stayed pending the further order of this court.
Hadley, C. J., Mount, Root, and Cuow, JJ., concur.