3 Wn. App. 536, THE STATE OF WASHINGTON, PARKS AND RECREATION COMMISSION, Respondent, V. LESLIE SCHLUNEGER et al., Appellants

[No. 196-3. Division Three. Court of Appeals      October 30, 1970.]

THE STATE OF WASHINGTON, PARKS AND RECREATION COMMISSION, Respondent, V. LESLIE SCHLUNEGER et al., Appellants.

[1] Eminent Domain - Proceedings - Phases. A condemnation action consists of an adjudication of public use and necessity, determination of damages to be awarded to the owner, and payment of the amount of the award and entry into possession.

[2] Eminent Domain - Public Use and Necessity - State Park - Benefit to Adjacent Lake - "Park Purpose". The Parks and Recreation Commission's acquisition of an easement to stabilize a lake adjacent to but not a part of a state park, was for a "park purpose" within the intent of RCA 43.51.040(7), which permits acquisition of land for park purposes, where a stable level of the lake would enhance, if not be imperative to, future use of the state park.

[3] Eminent Domain - Public Use and Necessity - Benefit to Other Governmental Agency. A governmental unit's right to acquire property by eminent domain is not affected by the fact that another governmental agency, without the power of eminent domain, receives an incidental benefit from the condemnation and accordingly contributes a part of the cost of the project.

[4] Eminent Domain - Administrative Selection - Weight. In condemnation proceedings, selection of the property to be condemned is an administrative decision and is conclusive in the absence of bad faith or arbitrary, capricious, and fraudulent action. The issue of public use and necessity is purely judicial [See 26 Am. jur. 2d, Eminent Domain 113.]

[5] Eminent Domain - Public Use and Necessity - Evidence - Contract With Property Owner. Evidence of the existence of a contract between the state and a condemnee was irrelevant and inadmissible in a condemnation proceeding on the issue of public use necessity, where, although the contract did concern the property involved in the dispute, the contract would not have provided results identical to those which would be achieved by eminent domain.

[6] Eminent Domain - Extent of Power - Restrictions. The state's power of eminent domain cannot be surrendered, bargained away, or restricted by agreement.

[7] Eminent Domain - Extent of Power - Contract Rights - Effect. The right to condemn may be exercised without reference to contract rights a condemnee has with the state regarding the property.

[8] Eminent Domain - Proceeding - Related Contract Action - Joint Trial. An action by a property owner for alleged breach of contract against the state can be tried together with the issue of damages in

 Oct. 1970]          PARKS & RECREATION v. SCHLUNEGER         537 
3 Wn. App. 536, 475 P.2d 916

an eminent domain proceeding, where the contract breach arises directly from the condemnation.

[9] Eminent Domain -Public Use and Necessity - EvIdence - Formal Resolution - Necessity. Evidence of necessity may be presented through the testimony of agents or employees of the condemning body, and need not be fully stated in a formal resolution of the condemning body absent a statutory requirement therefore.

Certiorari to review a judgment of the Superior Court for Okanogan County, No. 17882, Felix Rea, J., entered March 20, 1970. Affirmed.

Condemnation proceedings. Property owners seek review of an order of public use and necessity.

Hancock & Kohls and Kelly Hancock, for appellants.

James H. Dailey (of Lawson & Dailey) and Slade Gorton, Attorney General, for respondent.

GREEN, J. -

The Parks and Recreation Commission brought this action to condemn an easement over appellants' land for a pipeline to carry water from the Methow River to Alta Lake for the purpose of rehabilitating and stabilizing the water level of the lake. Appellants, Leslie and Marjorie Ruth Schluneger, and John and Veronica Schluneger, challenge and seek review by writ of certiorari of an order adjudicating public use entered in favor of the Parks and Recreation Commission of the State of Washington.

Alta Lake State Park borders the waters of Alta Lake in Okanogan County. Those using the park also use the lake for fishing, swimming and boating. Since 1960, the water level of Alta Lake has been receding. By 1968, when this action was commenced, the lake was 11 to 12 feet below the 1960 level. As a result, the swimming areas became muddy; the beach was unacceptable to users of the park; the boat launch facilities became inoperative and required relocation; and the esthetic beauty of the park was affected. To correct this situation, the Parks and Recreation Commission concluded that water should be piped from the Methow River to the lake for the purpose of restoring and

 538    PARKS & RECREATION v. SCHLUNEGER     [Oct. 1970 
           3 Wn. App. 536, 475 P.2d 916

maintaining the water level. To this end, this condemnation proceeding was commenced.

[1] A condemnation action consists of three phases: (1) adjudication of public use and necessity, (2) determination of damages to be awarded to the owner, and (3) payment of the amount of the award and entry into possession. State ex rel. Lange v. Superior Court, 61 Wn.2d 153, 156, 377 P.2d 425 (1963). The issues raised on appeal relate solely to the first phase.

[2] First, appellants challenge the authority of the Parks and Recreation Commission to acquire the proposed easement. It is contended that since the lake is not a part of the park, the piping of water into it is not for a "park or parkway purpose" within the meaning of RCW 43.51.040(7). While the park borders Alta Lake, title to the lake bottom is not vested in the Parks and Recreation Commission; however, the Parks and Recreation Commission are owners of the abutting shore lands. Nevertheless, the waters of Alta Lake were used by the public in conjunction with the park for swimming, boating and fishing. To this extent Alta Lake is an integral part of the park. This became even clearer when receding lake waters jeopardized public use of the park. The portion of RCW 43.51.040 upon which appellants rely provides in part:

The commission shall:     . . .     (7) . . . select and purchase or obtain options upon, lease, or otherwise acquire for and in the name of the state such tracts of land, including shore and tide lands, for park and parkway purposes as it deems proper. (Italics ours.) Considering the circumstances outlined above, we conclude the easement sought to be acquired is for a park purpose within the meaning of the statute. It is undenied that stabilizing the lake level will enhance, if not be imperative to, the future use of Alta Lake State Park. Public use and necessity therefore exists. Decatur Park Dist. v. Becker, 368 Ill. 442, 14 N.E.2d 490 (1938); Chicago Park Dist. v. Canfield, 370 Ill. 447, 19 N.E.2d 376, 121 A.L.R.

 Oct. 1970]     PARKS & RECREATION v. SCHLUNEGER         539 
3 Wn. App. 536, 475 P.2d 916

557 (1939); Otto v. Bobo, 287 S.W.2d 274 (Tex. Civ. App. 1956); and Hogue v. Port of Seattle, 54 Wn.2d 799, 341 P.2d 171 (1959) cited by appellants are not in point. Appellants,' first challenge must fail.

[3] Second, appellants contend Alta Lake is under the control of the Department of Game of the State of Washington who agreed to contribute $30,000 toward raising the water level. It is asserted that since the Department of Game does not have the power of eminent domain, the Parks and Recreation Commission cannot condemn for the use of the Department of Game. The record does not support appellants. The primary reason for raising the water level of Alta Lake is to benefit Alta Lake State Park. True, an incidental benefit would result to the Department of Game; hence their financial contribution. However, the record shows only minimal benefit to the interests of the Department of Game.

[4] Third, appellants contend that because the Parks and Recreation Commission had a franchise to establish a pipeline to carry water from the Methow River to Alta Lake along a county road, no necessity for condemnation of an easement across appellants' land exists. We disagree. This franchise was secured as part of a preliminary study. The testimony does not support the conclusion that the route represented by the franchise was economically feasible. To the contrary, the route selected across appellants' land was the most direct and economical route. While the issue of public use and necessity is a judicial one, the administrative selection is conclusive in the absence of bad faith, arbitrary, capricious, or fraudulent action. State ex rel. Lange v. Superior Court, supra. Since the record does not support this conclusion and appellants do not contend that it does, the selection of the route over appellants' land must be sustained.

[5] Fourth, appellants contend the trial court erred when it refused evidence of an alleged contract between them and the Parks and Recreation Commission. By offer of proof, appellants stated they would prove a contract

 540    PARKS & RECREATION v. SCHLUNEGER     [Oct. 1970 
           3 Wn. App. 536, 475 P.2d 916

whereby they agreed to deliver 3,500 acre feet of water to Alta Lake during a 30-month period for $90,000; that such contract was contingent upon a contribution of $30,000 by the Department of Game; that the contingency has been satisfied; that appellants at all times were ready to perform; and the agreed price under the contract is less than the costs under the plan proposed in the condemnation. It is argued the existence of a contract to provide water for Alta Lake renders the acquisition of the easement unnecessary; therefore, the evidence of the contract was relevant to the issue of necessity. It is noted this proceeding seeks to condemn a perpetual easement for a pipeline to carry water to Alta Lake; whereas, the alleged contract is to provide a limited amount of water within a limited period of time. The interests covered by the contract are different from the interests sought to be acquired in this proceeding.

[6,7] The power of eminent domain cannot be surrendered or bargained away, nor can an agent of the state bind it to a restricted exercise of that power. Further, the right to condemn may be exercised without reference to contract rights. State v. Charlton, 71 Wn.2d 748, 430 P.2d 977 (1967). As in Charlton, appellants do not contend there was any express or implied promise that a condemnation action would not be commenced in the future. In view of this circumstance and the fact that the interests covered by the alleged contract are not identical to the interests sought to be condemned in this proceeding, admission of the contract on the issue of public use and necessity was properly denied. Cf. State ex rel. Preston Mill Co. v. Superior Court, 91 Wash. 249, 157 P. 689 (1916); State ex rel. Henry v. Superior Court, 155 Wash. 370, 284 P.788 (1930).

[8] However, appellants are entitled, if they desire, to a determination as to whether or not a valid contract exists between themselves and the Parks and Recreation Commission; and if so, damages, if any, for the breach of that contract should be ascertained. Since the matter arises directly from the condemnation proceeding, these issues may be tried and separately determined upon the trial of the

 Nov. 1970]     FED. AMER. INS. CO. v. HARGROVE          541 
3 Wn. App. 541, 475 P.2d 912

second phase of this action. Cf. State v. Shain, 2 Wn. App. 656, 469 P.2d 214 (1970).

[9] Last, appellants contend the resolution of the Parks and Recreation Commission was deficient for reciting only the conclusion the easement was necessary in connection with the development of Alta Lake State Park without setting forth the precise reasons for such necessity. This contention is without merit. RCW 43.51.040(7) makes no such requirement. The court properly allowed a representative or employee of the Commission to testify as to the facts showing necessity. Those facts disclosed the gradual lowering of the water level of Alta Lake with an adverse effect upon the swimming and the boat launching area, as well as the general esthetics and public use of the park. It was not necessary to state these facts in the resolution.

Judgment affirmed.

EVANS, C. J., and MUNSON, J., concur.

Petition for rehearing denied December 23, 1970.

Review denied by Supreme Court February 9, 1971.