No. 5004 | Wash. | Sep 27, 1904
This proceeding is to appropriate certain lands for a private irrigation ditch for agricultural purposes. It was instituted hy the respondents under the provisions of an act of the legislature approved March 14, 1899 (Laws 1899, p. 261). A complaint was filed, and summons served upon the appellants, who appeared in the action and filed a general demurrer to the complaint. This demurrer was overruled, and thereupon appellants filed an answer. The cause was thereafter tried to the court and a jury, the latter being called to assess the damages. The court found, among other things, that respondents’ lands are arid agricultural lands and require irrigation; that said lands are irrigated by water obtained from what is known as Tenum ditch; that said ditch does not touch any of respondents’ lands, and, in order to obtain water therefrom, it is necessary to carry the same through the appellants’ lands; that said water is obtained from a natural stream in Kittitas county. The court also found that appellants refused to grant respondents a right of way for the purpose of said ditch. The jury found and assessed appellants’ damages at $100.
Upon this appeal it is urged that the act in question is void for the reason, (1) that it is in contravention of § 19 of art. 2 of the constitution, which provides that no bill shall embrace more than one subject, and that shall be embraced in the title; (2) that due process of law for the taking of such property is not provided by the act; and (3) that the act does not provide for the payment of damages aside from the value of the land taken.
(1) The title of the act is as follows: “An act providing for condemnation proceedings for right-of-way for irrigating ditches, canals, and flumes for agricultural and mining purposes and relating to right of appropriation of water.” It is claimed by appellants that this act
Upon an examination of the act, we find that sections 1 and 2 define what persons are entitled to take certain AVaters for the purposes of irrigation and mining. Section 3 provides that a person, oAVUing lands requiring irrigation and not being a riparian proprietor, shall have a right of way, for purposes of irriagtion, through lands intervening between his lands and certain waters. Section -t defines such right of way. Section 5 provides that, upon the refusal of the owner of intervening lands to permit the passage of water over the same, the persons desiring such right of Avay shall proceed to condemn and take the right of way. The remainder of the act pro-Arides for the procedure. There can be no doubt that a subject embraced in the title of an act includes all subsidiary details Avhich are means for carrying into effect the object and purpose of the act disclosed in that subject. Sutherland, Stat. Constr., §96 and cases cited; Cooley, Const. Lim. (7th ed.), pp. 205-9. Under this rule, if the title of the act in question had been, “An act relating to the right of appropriation of waters,” there can be no doubt that the act, under such title, might have contained all the provisions it now contains, and not have been subject to the criticism of duplicity, for the reason that the provisions relating to the condemnation of rights of way are necessary to carry out the purpose of the act. The fact that the title contáins more of a synopsis of the details of the act than is necessary does not make it ob
(2) The act is next attacked upon the ground that it does not provide for tire taking hy due process of law. Section 6 provides that, in case of the refusal of owners of land, through which the ditch is proposed to be made, to allow the passage- of the ditch or right of way, the person desiring such right of way shall file in the superior court a complaint, describing the land to be crossed, the size of the ditch, the quantity of land required, the value of the land and damages to the property, setting forth the names of the owners or parties interested in the land to be crossed, and praying that a right of way be granted. It also provides that -a summons shall he issued and served as in other cases of a civil nature, and that, in case of default of the defendants, the court shall impanel a jury to determine the value of the land occupied, and the damages. The next section provides that, when the defendant shall appear, he shall allege in his answer the value of the land proposed to be used, and the jury shall thereupon determine the value and the damages. We think the provisions here provide for ample notice. It is true, as stated by appellants, that there is no express provision that the plaintiff shall maintain the requirements of the statute, or the allegations of his complaint, at the trial. But this it seems must follow as a matter of course, whether the defendants appear or not. These are questions for the court. They are jurisdictional to
(3) Upon the last question, appellants argue that the act does not provide for the payment of damages to lands, aside from the value of the land taken. The provision of the act upon this point is as follows: The jury “shall determine the valúe of the land occupied by said ditch, canal, or works, and the damages, and, upon the return of the verdict, the court shall enter a decree, directing that the right-of-way for the ditch, canal, or works be established according to the description in the complaint, and that the plaintiff shall pay to the clerk of the court the full amount of the value of the land and damages found by the jury, before the plaintiff shall begin work on said ditch, canal, or works.” The word “damages” as here used can refer only to damages to the whole tract in addition to the value of the land actually taken. It is true, this quotation is from section 6, which provides the procedure where the defendants make default] but section 1 provides the same procedure where the defendants appear. It makes no change in this respect.
We conclude that the act is valid upon the points suggested. The judgment is therefore affirmed.
Fullerton, C. J., and Dunbar and Anders, JJ., concur.