99 Wash. 439 | Wash. | 1918
This action was brought by Tukwila, a municipal corporation of the fourth class, Minnie M. Lutz intervening, to restrain King county and the board of county commissioners thereof from paving a portion of a highway within the corporate limits of the town of Tukwila with any other material than first-class paving brick. From a judgment of the trial court dismissing the action, both plaintiff and the intervener have appealed.
About May 20, 1913, the board of county commissioners of King county, by resolution, decided to condemn a right of way for a portion of what is known as the Seattle-Tacoma (Pacific) highway. The part of the right of way desired was on the streets of the town of Tukwila and across the property of the intervener. The county right of way agent and M. L. Hamilton, one of the county commissioners, together with the deputy prosecuting attorney of King county, represented to the mayor and city council of Tukwila and to the intervener that the highway would be paved with first-class brick. Relying, as they contend, upon these representations and the promise that the highway would be so constructed, the town, by ordinance, granted King county a right of way on its streets, and the intervener deeded a strip of land from her lots in Tukwila to the county without compensation.
Clearly it was not within the apparent scope of the authority of the right of way agent or the deputy prosecuting attorney to bind the county as to the character of the paving to be used. The right of way agent’s duties were limited to procuring deeds for the right of way and ascertaining what compensation would be accepted by the property owners without resort to condemnation proceedings, and the deputy prosecuting attorney’s duties were limited to seeing that the deeds were in proper form, and attending to other legal formalities. Their acts were all subject to approval or disapproval by the board of commissioners. The right of way agent’s only authority for making such representations and promises is found in the oral instructions of Mr. Hamilton, the commissioner from the district in which the highway was to be constructed.
King county is divided into three districts, the north, central and south, there being one commissioner from each district. The central district comprises the city of Seattle, in which no highways are constructed by the county. Appellants insist that it has been the custom for the commissioners from the north and south districts to have exclusive control over the construction of the roads and highways in their respective districts, and suggest that there was an understanding by which they agreed in advance to vote in support of each other’s recommendations. We do not so read the testimony. But even if it were so, the county is entitled to have each commissioner exercise his own independent judg
Counsel for appellants cite Robertson v. King County, 20 Wash. 259, 55 Pac. 52, and Green v. Okanogan County, 60 Wash. 309, 111 Pac. 226, 114 Pac. 457, but neither of these cases is in point. In the Robertson case, it appears that two of the commissioners stated in advance that the board would ratify whatever was done by the third commissioner; we are not inclined to extend the doctrine of that case. In the Green case, the contract was held void, a recovery being allowed on a quantum meruit; while in the present case, appellants are seeking to establish a contract and- to have it specifically enforced or violation thereof enjoined. See, also, Bier v. Clements, 98 Wash. 310, 167 Pac. 903.
When we consider that, under Rem. Code, § 5879-7, all plans and specifications for proposed highways are subject to the supervision of the state highway commissioner, it is still more apparent that a single commissioner has no authority to bind the county on a matter in which the action of the board itself is subject to supervision.
Appellants further contend that, even if the agreement made by the right of way agent and one of the commissioners was not binding when originally made, it became binding when the board, with full knowledge of these representations and promises, accepted the deed and franchise and retained possession of the right of way granted thereby. This contention is made on the theory that, by accepting and retaining the right of way with knowledge of the promises that induced appellants to grant it, the board of county commissioners ratified the promises and thereby bound the county to construct the highway with brick paving.
Even conceding that the county commissioners have power to contract with the various property owners as to the type of pavement which shall be used on the highways across their
In the present case, King county had the power to condemn a right of way for the purposes of this highway across the lands of the intervener and through a municipal corporation of the fourth class, such as the town of Tukwila. Rem. Code, §§ 5879-8, 5879-18, 5879-19; State ex rel. Floyd v. Superior Court, 86 Wash. 410, 150 Pac. 618. Hence we find the county retaining possession of lands which it could have acquired by condemnation proceedings. We have repeatedly held that, where one, such as the county in this case, has the right to condemn property and has taken possession of it, the original owner’s only remedy is to recover compensation for the land so taken and that such owner cannot interfere with the possession by injunction or other proceeding. Kakeldy w. Columbia & Puget Sound R. Co., 37 Wash. 675, 80 Pac. 205; Kincaid v. Seattle, 74 Wash. 617, 134 Pac. 504, 135 Pac. 820; Thorberg v. Hoquiam, 77 Wash. 679, 138 Pac. 304; Stewart v. Fitzsimmons, 86 Wash. 55, 149 Pac. 659; Domrese v. Roslyn, 89 Wash. 106, 154 Pac. 140; State ex rel. Twiss v. Superior Court, 93 Wash. 429, 161 Pac. 68.
Although, in the present case, appellants do not seek to disturb the county’s possession, they do seek to interfere with that possession by dictating the type of paving the county shall install. The prayer of their complaint is that the county may be restrained from installing any other material than first-class paving brick. In the application of the rule there is no distinction in principle between the facts in cases cited and the facts in this case. As King county could not be disturbed in its possession or restrained from building a
In oral argument, counsel contended that, if appellants were denied injunctive relief, they were at least entitled to damages for the substitution of concrete for brick paving. This proceeds upon the theory that there is a valid contract for brick paving. As there is no such contract, there can be no breach of a contractual duty on which either appellant can predicate a claim for damages.
Judgment affirmed.
Ellis, C. J., Mount, Main, Morris, Webster, Parker, and Chadwick, JJ., concur.