(S. Ct. 1903). THE STATE OF WASHINGTON ON THE RELATION OF WILLIAM PITT
TRIMBLE
vs.
SUPERIOR COURT OF KING COUNTY
No. 4346
SUPREME COURT OF WASHINGTON
31 Wash. 445, 72 P. 89
March 30, 1903, Decided
HEADNOTE
EMINENT DOMAIN -- APPROPRIATION BY RAILWAY CORPORATION -- STATE
LANDS HELD UNDER CONTRACT OF SALE.
Under the power of eminent domain granted railway companies by
Bal. Code, §§ 4333, 4334, which authorize them to condemn such
"land, real estate, or premises" as may be necessary for right of
way, such companies are empowered to appropriate the equitable
interest in tide lands held by purchasers from the state under
contract of sale, subject only to the right of re-entry and
forfeiture on the part of the state for a failure to pay the
balance of the purchase price according to the terms of the
state's contract.
EMINENT DOMAIN -- CONDEMNATION PROCEEDINGS -- NECESSARY PARTIES.
Under Bal. Code, § 5638, which provides that notice of
condemnation proceedings shall be served on each and every person
named in the petition as owner, incumbrancer or otherwise
interested therein, and that want of service of such notice shall
render subsequent proceedings void as to the person not served,
but all persons or parties served with notice shall be bound, the
failure to serve all interested parties would not invalidate the
proceedings against such as were included as parties and properly
served with notice.
EMINENT DOMAIN -- LEASE OF ROAD -- EFFECT.
The fact that a railway company had leased its line of road to
another corporation and does not operate its road nor possess any
rolling stock of its own, would not deprive it of the power of
condemning private property.
SYLLABUS
Original Application for Certiorari.
Struve, Allen Hughes & McMicken, Preston, Carr & Gilman and
George E. de Steiguer, for relator.
Burke, Shepard & McGilvra, for respondent.
ANDERS, J. FULLERTON, C.J., and HADLEY, DUNBAR, and MOUNT, JJ.,
concur. ANDERS
{*446} The Seattle & Montana Railroad Company is a corporation
organized under the laws of the state of Washington for the
purpose of constructing, owning, and operating railroads and
telegraph lines within the state. As such corporation it is
vested by statute with the right to exercise the power of eminent
domain. The lands and premises involved in this controversy are
situated on the shore of Elliott Bay, in the harbor of Seattle,
and are "tide and shore lands," bounded on the north by King
street, on the east by Oriental avenue, on the south by
Connecticut street, and on the west by Occidental avenue. The
record title to the easterly ten feet of the above-described
tract is in William Pitt Trimble, but it seems to be conceded
that that part is in fact the community property of Trimble and
wife. The title to the remainder of said tract is still in the
state of Washington, but possession thereof is held by the
Trimbles under a contract made by the state, through its duly
constituted agent, the commissioner of public lands, on March 10,
1897, agreeing to convey the same by patent to one C. E. Remsberg
in consideration of the sum of $ 925.34, to be paid in ten equal
annual installments, the first at the time of the execution of
the agreement and the others annually thereafter, with interest
thereon at six per cent per annum, payable annually with each
installment on all unpaid installments. This contract is in the
usual form of such contracts, and provides, among other things,
that the conveyance shall be "subject, however, to any lien or
liens that may arise or be created in consequence of, or pursuant
to, the provisions of an act of the legislature of the state of
Washington entitled 'An act prescribing the ways in which
waterways for the uses of navigation may be excavated {*447} by
private contract, providing for liens upon tide and shore lands
belonging to the state, granting rights of way across lands
belonging to the state,' approved March 9, 1893"; that the vendee
"will pay all taxes and assessments of every kind that may be
levied or assessed on said land and premises"; that, if the said
vendee "shall well and faithfully keep and perform all the
covenants and agreements hereinbefore specified by him to be kept
and performed in the manner and at or before the times above
specified, he shall be entitled to a patent to said lands from
said state of Washington as provided by law upon the surrender of
said agreement and cancellation of the same"; and that "the terms
of this contract shall be binding in favor of and against the
said party of the second part, his heirs, executors,
administrators and assigns, but no assignment of this contract
shall in any way relieve the said party of the second part from
the performance of the conditions hereof on his part, nor be
recognized or admitted by the state of Washington, unless the
same shall be endorsed hereon and executed, witnessed and
acknowledged in the same manner as a conveyance of real estate is
required by law to be, and said assignment shall be accepted by
and entered on the records of the commissioner of public lands."
The railroad company, in pursuance of the provisions of the
statute, filed a petition for condemnation in the superior court
of King county, in which it substantially set forth the state's
contract above mentioned, and annexed a copy thereof as an
exhibit, and alleged that after the making of the said contract
said Remsberg and his wife, for a valuable consideration, made
and delivered to one C. F. Webb their warranty deed, which was
duly recorded, conveying to her, the said Webb, all the tide
lands embraced {*448} in the said contract, and wherein and
whereby said Remsberg and wife authorized the commissioner of
public lands of the state of Washington, or the board of state
land commissioners, or their or either of their successors in
office, to make, issue, and deliver to said grantee in her name
any grant, contract, or conveyance of said lands, or any part
thereof, or to any person or corporation to whom said grantee
might convey the same, or any part thereof; that thereafter the
said C. F. Webb, for a valuable consideration, made and delivered
to said William Pitt Trimble her quitclaim deed, whereby she
released, remised, and quitclaimed unto him all right, title, and
interest which she then had in or to said tide lands, or any part
thereof, and wherein and whereby she "authorized the commissioner
of public lands and the board of state land commissioners, or
either of them, or their successors in office, to execute and
deliver to said William Pitt Trimble any contract or conveyance
of the above-described land, or any part thereof, or to any
person or corporation to whom he might convey the same"; that the
said Remsberg, at or soon after the time of receiving from the
state its contract for the conveyance of said tide lands to him,
went into possession of the same, and upon executing and
delivering said warranty deed to said Webb he delivered the
possession of said lands to her, and upon executing and
delivering said quitclaim deed to said William Pitt Trimble she
delivered the possession of said lands to him, and he has ever
since remained and now is in possession thereof, claiming under
said contract of the state. Counsel for the petitioners state in
their brief that Remsberg and wife, as well as Trimble and wife,
were joined as respondents in the condemnation proceeding, on
account of the informality of these assignments, under the
provisions of the contract. The petition specifically describes
{*449} the lands sought to be appropriated to the use of the
railroad company, as required by law, and alleges, in substance,
that the use to which the land is to be devoted is a public use;
that the public interest requires the prosecution of the said
enterprise; and that the land, real estate, and premises sought
to be appropriated are required and necessary for the purposes of
such enterprise. The petition also states that the petitioner
seeks to appropriate the entire fee-simple estate of the
respondents Trimble in the strip of land ten feet in width which
they hold by deed, and "to appropriate, condemn, and acquire the
entire interest of said William Pitt Trimble and Connie Ford
Trimble, his wife, in the remainder of said lots, tracts, and
parcels of land, to wit, their said equitable ownership thereof,
and their entire interest in said agreement with the state of
Washington for the sale and conveyance thereof; and also the
entire apparent interest of said C. E. Remsberg and Belle F.
Remsberg, his wife, therein -- all subject to the obligation
imposed by the terms of said agreement upon the said C. E.
Remsberg, the vendee therein named, and upon his assigns, to pay
to the state of Washington the balance of the purchase price
therein specified, with interest as therein required." It is
further stated in the petition that the railroad company seeks to
appropriate the aforesaid land and the aforesaid interests
therein for the purpose of tracks and a site for terminal
buildings and facilities. The petition prayed that a jury be
impaneled by the court to ascertain and determine the
compensation to be made in money, irrespective of any benefit
from any improvement proposed by the petitioner, to the
respective owners, tenants, and incumbrancers of, and other
persons interested in, the said lands and the said interests
therein, and in said agreement for the sale and {*450} conveyance
of a part thereof, for the taking or injuriously affecting the
same, or, if a jury be waived, that said compensation be
ascertained by the court or a judge thereof.
It thus appears that the petition set forth all facts necessary
under the statute to give the superior court jurisdiction of the
subject-matter of the proceeding. Remsberg and wife and Trimble
and wife were duly served with notice of the application for
condemnation. The first-named parties failed to appear, but
Trimble and wife appeared, and thereafter a hearing was had
before one of the judges of the superior court of King county for
the purpose of determining whether the alleged use for which the
lands and property were sought to be appropriated was really a
public use, and whether the same were required and necessary for
the purposes of the petitioner, as set out in said petition. On
this "preliminary hearing" the fact set out in the petition, as
above noted, relative to the contract by the state for the sale
of the tide lands in question, and the subsequent transfers of
the vendee's interest therein, were clearly established by
documentary evidence; and we think the petitioner also
satisfactorily proved that the premises were required and
necessary for the purposes specified, namely, a right of way for
its tracks and a site for a passenger station and for platforms,
warehouses, etc. But it was shown by the testimony of the
petitioner's engineer that the petitioner is not the owner of any
locomotives or cars, and that it does not operate its railroad,
but the same is operated by the Great Northern Railway Company,
under some kind of an agreement between them, the terms of which
were not disclosed by the evidence. It further appeared that
neither the state of Washington nor the Seattle & Lake Washington
Waterway Company was made a party to or served with notice of the
proceeding.
{*451} The respondents Trimble and wife objected to the
proceeding on the grounds (1) that the lands and premises sought
to be appropriated were not subject to condemnation under the law
of this state, and (2) that there was a defect of parties, and
the court had no right or authority to make any order in the
premises without bringing in all parties interested in the lands
in controversy. The court, however, made an order declaring that
the contemplated use for which the said railroad company sought
to appropriate said lands was really a public use, and that the
public interest required the prosecution of the enterprise
mentioned in the petition and that the lands, real estate, and
premises sought to be appropriated were required and necessary
for the purpose of said enterprise, and that all interested
parties had been served with notice, and directing the sheriff to
summon a jury to assess the damages to be paid to the owner or
owners respectively, and to all tenants, incumbrancers of, and
others interested in, said lands, real estate, and premises,
towit, the said William Pitt Trimble and Connie Ford Trimble, his
wife, for the taking or injuriously affecting the same by said
petitioner. The said Trimble and wife, respondents in the
condemnation proceeding, thereupon sued out a writ of certiorari
from this court to review the action of the superior court as to
the order and rulings above mentioned. And the said relators
allege that "the court erred in making and entering the order of
June 19, 1902, declaring the public use and necessity of the
appropriation and ordering a jury to be impaneled for the
assessment of the damages of Trimble and wife."
It follows from what we have already said that the objection to
the findings of the court as to the public use and necessity of
the appropriation is without merit, and it must be conceded that,
if the particular property sought {*452} to be appropriated is
subject to be taken by virtue of the power of eminent domain, and
that the owners and other persons interested therein, within the
meaning of our statute, were served with notice of the hearing of
the petition for condemnation, the court committed no error in
ordering the summoning of a jury to determine the resulting
damages. It is provided in § 4333, Bal. Code, that "a corporation
organized for the construction of any railway . . . shall have
the right to enter upon any land, real estate or premises . . .
between the termini thereof for the purpose of examining,
locating and surveying the line of such road." And § 4334
provides that "such corporation may appropriate so much of said
land, real estate or premises . . . . as may be necessary for the
line of such road not exceeding two hundred feet in width: . . .
and . . . sufficient quantity of such land, real estate or
premises . . . in addition to that before specified in this
section, for the necessary side tracks, depots and water
stations, and the right to conduct water thereto by aqueduct."
But this court has held that the interest of the state in tide
lands cannot be taken under the power of eminent domain granted
to railway corporations by the above-mentioned statute, for the
reason that the law contemplates the taking of private and not
public property, unless the right to take the latter is
specifically conferred by law. Seattle & Montana Ry. Co. v.
State, 7 Wash. 150 (34 P. 551, 22 L.R.A. 217, 38 Am. St. Rep.
866). And, such being the law in this state, the learned counsel
for the relators contend that the tide lands in question are not
subject to condemnation and appropriation by the railroad
company, because they are still the property of the state, and
the relators have no estate, either legal or equitable, therein;
and they cite several {*453} authorities holding, in effect, that
in law the vendee in a mere executory contract for the sale of
land obtains no real property or interest in real property; that
the relations between the parties to the contract are wholly
personal; that the vendee's right is a mere thing in action, and
that it is only when the vendee performs, or offers to perform,
all the acts necessary to entitle him to a deed, that he has an
equitable title and may compel a conveyance. Pomeroy, Contracts,
§ 314; Warvelle, Vendors, p. 188, § 3. See, also, Smith v. Jones,
21 Utah, 270 (60 P. 1104 -- 1106); Ruggles v. Nantucket, 11 Cush.
433; Railway Co. v. Prescott, 16 Wall. 603; Railway Co. v.
McShane, 22 Wall. 444; Northern Pacific R.R. Co. v. Traill
County, 115 U.S. 600-609 (6 Sup. Ct. 201). In the last three
cases cited the real question for determination was whether lands
granted to railroad companies by the United States were subject
to taxation before all the conditions of the grant had been
performed, and it was decided that they were not. But the
authorities cited by counsel for the relators do not seem to us
to be decisive of the question here under consideration. We have
no doubt that, as between the parties to a contract for the sale
and purchase of land, the vendee therein named does not become
the full equitable owner until he performs or offers to perform
all the acts necessary to entitle him to a conveyance of the land
and to a specific performance of the contract in a court of
equity; but it does not necessarily follow that a vendee in such
a contract has no interest or estate whatever in the land covered
by the agreement, which may not be controlled or divested by law.
In fact, as we shall hereafter see, there are interests in real
property, less than estates in fee simple, which may be taken for
public uses by authority of the sovereign power. And, {*454} it
must be borne in mind that the respondent corporation is not
seeking to appropriate the interest of the state in the tide
lands described in the petition for condemnation, or the interest
of any person or persons therein other than the state's vendee
and the relators herein. It simply seeks, as we have already
said, to appropriate, condemn, and acquire the entire interest of
the relators in said tide lands, namely, their equitable
ownership thereof, and their entire interest in said agreement
with the state of Washington for the sale and conveyance thereof,
and also the entire apparent interest of said Remsberg and wife
therein, all subject to the obligation imposed by the terms of
said agreement upon the vendee therein named, and his assigns, to
pay to the state the balance of the purchase price therein
specified, with interest as therein provided for. And the first
question, therefore, to be determined is whether the interest
sought to be appropriated by the respondent is fairly included in
the grant to corporations organized for the construction of
railways of the power of eminent domain. It is contended on
behalf of the relators that it is not, for the alleged reason
that the power to condemn and appropriate such interest is not
conferred upon the respondent corporation either expressly or by
necessary implication, and therefore cannot be exercised by it
for the purpose of depriving the relators of property which is a
mere chose in action, and not "land, real estate or premises" in
contemplation of our statute. And if it be true, as claimed by
their counsel, that the relators have no present interest in the
lands described in the contract between their assignors and the
state, it certainly follows that the condemnation proceeding must
fail.
But we are clearly of the opinion that counsel are in error in
assuming that the relators have, as between themselves {*455} and
the railroad company, no interest in the lands in controversy,
which is subject to be taken under the power of eminent domain.
They are in possession, with the consent of the state, of all the
tide lands described in the petition, and have the right to
receive the rents, issues, and profits thereof, without
interference on the part of the state except for a breach of the
covenants set forth in the state's contract, and which we have no
right to presume will be broken. Indeed, it is stated in the
brief of the relators that "he [Mr. Trimble] has the right, under
the contract pleaded, to make payment for this land during the
period of ten years, in accordance with the terms of the
agreement. He has the absolutely vested right to the possession
of this land under the law, to enjoy its use, rents, issues, and
profits during this period unmolested by the law of eminent
domain." It is true that the relators have a vested right to the
possession and use of this land, as stated by counsel, but we
think it is not true that such vested right may not be molested
"by the law of eminent domain." The interest of the relators is,
to say the least, an interest in land, and as such may be taken
for a public use by condemnation, upon payment of just
compensation therefor. It is an interest that may be sold for
taxes (State v. Frost, 25 Wash. 134, 64 P. 902), and which may be
assigned, transferred, and disposed of by the relators; and the
state cannot deprive them of this right. Washington Iron Works
Co. v. King County, 20 Wash. 150 (54 P. 1004).
"The term 'land,' in statutes conferring power to condemn, is
taken in its legal sense, and includes both the soil and
buildings and other structures on it, and any and all interests
therein. An easement may be taken under authority to take land."
1 Lewis, Eminent Domain (2d ed.) § 285.
{*456} In People ex rel. Heyneman v. Blake, 19 Cal. 579, the
court held (FIELD, C.J., delivering the opinion) that the right
to condemn private lands under the water company act of 1858, in
accordance with the railroad act of 1853, included the right to
condemn any estate or interest in the land necessary for the
purposes of the company, and that the company might, therefore,
seek in its petition for condemnation only the right of
excavating a tunnel through the land, and of running pipes
through the tunnel to convey its water, without seeking to obtain
a title to the land. In In re Metropolitan El. Ry. Co., 2 N.Y.
Supp. 278, which was a condemnation proceeding, the property
sought to be acquired by the railway company was described
generally as "so much of the privilege, easement, or other
interest in said street as is taken, appropriated, or interfered
with by the construction and maintenance of the elevated railroad
of the petitioner belonging to or claimed by . . ., and
appurtenant to the lots and premises known as . . ., and bounded
and described as follows." And the supreme court of New York
there ruled that the term "real estate," as used in the statutes
granting the right of condemnation to the petitioner, "covers all
the incorporeal hereditaments, easements, rights, and privileges
which it is sought to acquire in these various proceedings." In
Story v. New York El. R.R. Co., 90 N.Y. 122 (43 Am. Rep. 146), it
was decided, in effect, that the right of access to an improved
lot abutting on a street and the right to have light and air pass
to a building thereon were property, and subject to condemnation.
See, also, Lahr v. Metropolitan El. Ry. Co., 104 N.Y. 268 (10
N.E. 528); State ex rel. Smith v. Superior Court, 30 Wash. 219
(70 P. 484); State ex rel. Smith v. Superior Court, 26 Wash. 278
(66 P. 385). {*457} This court held, in Seattle & M. Ry. Co. v.
Scheike, 3 Wash. 625 (29 P. 217), that the lessee of land
condemned by a railroad company is entitled to the damages
resulting to his leasehold estate. And in Enoch v. Spokane Falls
& N. Ry. Co., 6 Wash. 393 (33 P. 966), we held that, where a
railroad company appropriates public lands of the United States
upon which a pre-emption entry has been properly made prior to
the filing of a profile of the road in the office of the
secretary of the interior, the railroad company is liable for
damages, although the pre-emption claimant is not at the time
entitled to a patent from the government. The decisions of this
court above cited are based upon the conception that the interest
of the respective parties therein mentioned is included in the
terms "land" and "real estate," for on no other theory could such
interest be condemned at all.
In Fish v. Fowlie, 58 Cal. 373, the supreme court of California,
having under consideration the interest of the vendee under an
executory contract of sale of land, said: "The words 'real
property' are co-extensive with lands, tenements, and
hereditaments. 'Land' also embraces all titles, legal or
equitable, perfect or imperfect, including such rights as lie in
contract -- those which are executory as well as those which are
executed. Any interest, therefore, in land, legal or equitable,
is subject to attachment or execution, levy and sale."
And this court has held that under § 5200, Bal. Code, which
provides that "all property, real and personal, of the judgment
debtor, not exempt by law, shall be liable to execution,"
equitable as well as legal estates may be sold on execution.
Calhoun v. Leary, 6 Wash. 17 (32 P. 1070).
It was held by the supreme court of Wisconsin in {*458} Martin v.
Scofield, 41 Wis. 167, that a vendee in an ordinary land
contract, with right of possession, is to be regarded as the
equitable owner, and as such owner may maintain an action of
trover or replevin for timber taken from the land without his
consent. In that case it appeared that the owner of the lot from
which the logs in controversy were taken executed to the
plaintiff in the year 1871 a contract to convey to him, upon his
paying to her $ 200, with interest thereon, in one year, in
addition to $ 57.04 paid at the time the contract was executed.
At the time of the trial the $ 200 had not been paid, but the
interest had been paid up to February 1, 1875. The contract
provided, among other things, for re-entry in case the vendee
should make default in his payments, for a right of distress upon
the premises for arrears of interest, and for the recovery of
damages for waste. In regard to the relation between the parties
to the contract, and the effect of the contract upon the
ownership of the land, the court said:
"It has often been held that the relation between the parties to
a contract for the conveyance of land is analogous to that of
equitable mortgagor and mortgagee in fee of the land affected by
the contract. And such is the relation the plaintiff and Mrs.
Whitney [the vendor named in the contract] sustain to each other
in respect to the land in question. . . . We have no difficulty,
therefore, in holding that, when the logs were cut by
Coppersmith, the equitable estate in the land upon which they
were cut, and the possession and right to the possession of the
land, were in the plaintiff. It follows, on the authority of
Northrup v. Trask, 39 Wis. 515, that the plaintiff was the owner
of land, and, of course, of any timber cut upon it, subject only
to the right of Mrs. Whitney as mortgagee, and that he alone
could maintain trover or replevin for timber and logs taken
therefrom without his consent."
{*459} The doctrine announced in the case last cited as to the
relation between the parties to a valid contract for the sale of
land is so firmly settled against the contention of the relators
"by a train of uncontroverted authority" that it is now beyond
the realm of legitimate controversy. This doctrine of "equitable
conversion" has been applied in a great variety of cases, and
under divers circumstances. It was recognized and applied,
without hesitation, by the supreme court of Pennsylvania in an
action of ejectment (which was, of course, an action at law) in
the case of Kerr v. Day, 14 Pa. St. 112 (53 Am. Dec. 526). In
that case the trial court instructed the jury as follows:
"(2) That an agreement to give a party an option of purchasing
certain land is a mere personal covenant or agreement, and not
such an agreement as vests any interest, legal or equitable, in
the land the subject of the contract; and that the defendant,
claiming under such agreement alone, without any act of election
previous to the sale to the plaintiff, has no such title to the
land as furnishes the foundation of a defense to an action of
ejectment."
The defendant held the land there in question under an optional
contract of sale, and the plaintiff claimed it as owner by virtue
of a conveyance made to him by defendant's vendor, the holder of
the legal title. Upon that state of facts the appellate court
held that the instruction above set forth was erroneous. And the
ground upon which the court rested its decision is clearly and
tersely stated in the opinion delivered by BELL, J., in the
following language:
"The ground upon which a chancellor executes an executory
contract for the sale of lands is that equity looks upon things
agreed to be done as actually performed; consequently, when an
agreement is made for the sale of an estate, the vendor is
considered as a trustee for the purchaser of the estate sold, and
the purchaser as a trustee of the purchase money for the vendor.
The vendee is, {*460} in contemplation of equity, actually seised
of the estate, and is, therefore, subject to any loss that may
happen to it between the agreement and the conveyance, and will
enjoy any benefit which may accrue in the same interval. As a
consequence, he may sell or charge the estate before conveyance
executed; and the death of either vendor or vendee, even before
the time of completing the contract, is held to be entirely
immaterial. As a result of this principle, which seems to be of
general application, it is settled that an estate under contract
of sale is regarded as converted into personalty from the time of
the contract, notwithstanding an election to complete the
purchase rests entirely with the purchaser; and, if the seller
die before the election be exercised, the purchase money, when
paid, will go to his executors as assets."
In the case of Lysaght v. Edwards, L.R. 2 Chan. Div. 499, JESSEL,
M.R., speaking of the effect of a contract for the sale of lands,
said:
"A valid contract actually changes the ownership in equity. . . .
It must, therefore, be considered to be established that the
vendor is a constructive trustee of the purchaser of the estate
from the moment the contract is entered into. . . . The fact of
the purchaser's being able to pay or not being able to pay is
immaterial. tract is made, if valid."
See, also, King v. Ruckman, 21 N.J. Eq. 599; Keep v. Miller, 42
N.J. Eq. 100 (6 Atl. 495); 1 Sugden on Vendors (8th Am. ed. by
Perkins), p. 270 et seq.; Craig v. Leslie, 3 Wheat. 563;
Haughwout v. Murphy, 22 N.J. Eq. 531, 546. In the New Jersey case
last above cited, the court observed:
"In equity, upon an agreement for the sale of lands, the contract
is regarded, for most purposes, as if specifically executed. The
purchaser becomes the equitable owner of the lands, and the
vendor of the purchase money. After the contract, the vendor is
the trustee of the legal {*461} estate for the vendee. . . .
Before the contract is executed by conveyance, the lands are
devisable by the vendee, and descendible to his heirs as real
estate; and the personal representatives of the vendor are
entitled to the purchase money."
And Warvelle, in his work on Vendors, vol. 1, p. 197-8, lays down
the rule as follows:
"Where the purchaser has been let into possession, he is, in
equity, the owner, subject only to the lien of the vendor for the
unpaid purchase money. He has a right to the free use and
enjoyment of the property, and to the rents, issues, and profits
thereof, so long as he is not in default under the contract. He
may mortgage it for the payment of his debts; may sell and assign
his rights to another; or may create a privilege or easement upon
any part of the premises which will be valid and binding, but
liable to be defeated should there be a failure to pay the
balance of the purchase money according to the terms and
conditions of the contract of purchase."
The doctrine of equitable conversion has also been frequently
invoked in determining upon whom should fall the loss, and who
should be entitled to the insurance, if any, in case of
destruction by fire of buildings situated upon land under an
executory contract of sale. See Reed v. Lukens, 44 Pa. St. 200
(84 Am. Dec. 425); Marks v. Tichenor, 85 Ky. 536 (4 S.W. 225);
Brewer v. Herbert, 30 Md. 301 (96 Am. Dec. 582); Taylor v.
Holmes, 14 Fed. 498. In the well-considered case of St. Louis,
etc., R.R. Co. v. Wilder, 17 Kan. 239, it was held that a vendee
under a bond for a deed is regarded as the real owner of the
land, even before full payment of the purchase price is made, and
that he, and not the vendor, is entitled to receive the damages
if part of the land is taken in a proceeding for condemnation.
See, also, Kuhn v. Freeman, 15 Kan. 423; Pinkerton v. Boston &
A.R.R. Co., 109 Mass. 527; {*462} 2 Lewis, Eminent Domain (2d
ed.) § 319. And in a recent publication it is said that:
"The vendee under an executory contract of sale is the equitable
owner, entitled to a deed upon performance of his contract. If,
therefore, pending that performance, a part of the land is taken
by sovereign authority, he still remains liable to the vendor for
the entire purchase money, is entitled to the entire damages, is
a necessary party to the condemnation proceeding, and may
maintain the proceeding in his own name." 7 Enc. Pl. & Pr. 507.
It seems clear to us, in view of the authorities, that the
relators must be regarded as the real owners of the lots in
question, subject only to the right of re-entry and forfeiture on
the part of the state in the event of a failure on their part, or
that of their successors or assigns, to pay the balance of the
purchase price according to the terms of the state's contract.
Indeed, this court said in Washington Iron Works Co. v. King
County, supra, where the question under consideration was whether
tide lands under a contract of sale like the one now before us,
were subject to taxation before the contract was fully executed
by the vendee, that: "In equity, appellants are the owners,
possessing a real and substantial interest, which they can
assign, transfer, and dispose of as they choose; and the state
cannot deprive them of this right. . . . The naked legal title is
in the state, but for one purpose only -- to secure the unpaid
purchase price."
It is true that this case was distinguished in the subsequent
case of State v. Frost, supra, where it was very properly held
that only the interest of the vendee in a contract of sale of
state lands can be charged with taxes, and that the state's right
to the purchase price, or its right to forfeit the contract for
nonpayment thereof, cannot be divested by a tax sale of such
lands. But the doctrine announced {*463} in the former case as to
the equitable ownership of the vendee of tide lands under an
executory contract of sale was neither repudiated nor questioned.
It is provided in § 5637, Bal. Code, that any corporation
authorized by law to appropriate land, real estate, premises, or
other property for corporate purposes may present to the superior
court a petition describing the property sought to be
appropriated and "setting forth the name of each and every owner,
encumbrancer, or other person or party interested in the same, or
any part thereof, so far as the same can be ascertained from the
public records, the object for which the land is sought to be
appropriated, and praying that a jury be impaneled to ascertain
and determine the compensation to be made in money," etc. And §
5638 provides that a notice stating briefly the objects of the
petition shall be served on each and every person named therein
as owner, incumbrancer, tenant, or others interested therein, at
least ten days previous to the time designated in the notice for
the presentation of the petition. But the same section further
provides that want of service of such notice shall render the
subsequent proceedings void as to the person not served, but all
persons or parties having been served with notice as in this
section provided shall be bound by the subsequent proceedings.
Section 5640 provides, in effect, among other things, that if the
court or judge thereof shall have satisfactory proof that all
parties interested in the land, real estate, or premises
described in the petition have been duly served with the
prescribed notice, the court or judge thereof may make an order
directing the sheriff to summon a jury to determine the
compensation to be paid to the respective parties entitled
thereto. As we have seen, the state of Washington was not served
with notice of the hearing of the petition, {*464} and it is
therefore insisted by the relators here (as they insisted in the
superior court) that the court, under the provisions of said §
5638, requiring each and every person named in the petition to be
served with such notice, had no right to make the order now under
consideration. But we are of the opinion that the provision
requiring notice to be served on all interested parties is not
jurisdictional, except as to persons or parties not served. The
statute expressly declares that all persons duly served with
notice shall be bound by the "subsequent proceedings," but that
want of service shall render such proceedings void "as to the
person not served." Owen v. St. Paul, etc., Ry. Co., 12 Wash. 313
(41 P. 44). And it seems to be the general rule that: "The
omission of any proper party will not invalidate the proceeding
as against such persons as are made parties. The only consequence
is that as against the omitted persons the condemnation will be
nugatory." 7 Enc. Pl. & Pr. 504. See, also, Matter of Boston,
etc., Ry. Co., 79 N.Y. 69, wherein it was held that, where the
lessee alone is made a party, the estate in reversion will not be
affected. While it is true that the state holds the naked legal
title to these tide lands as trustee for the relators and their
assigns, and is, to that extent, interested therein, it is also
true that it is no more concerned in the condemnation suit than
it would be in a voluntary transfer by the relators of their
interest to the respondent herein. The state cannot be
involuntarily deprived of its title by condemnation or otherwise,
and the fact that it was not made a party to the proceeding
cannot affect its rights or those of the relators in any manner
or degree whatever. All that the relators are entitled to is just
compensation for their interest in the land, and such
compensation can readily be determined without regard to the
rights of the state or any other person or party.
{*465} What we have already said concerning the omission to make
the state a party virtually disposes of the objection that the
Seattle & Lake Washington Waterway Company is a necessary party
to the condemnation proceeding, and should have been served with
notice of the hearing of the petition. It must be remembered that
the respondent is not seeking to condemn any interest that that
company may have in the premises in question, and we are unable
to see how the failure to serve it with notice of the preliminary
hearing can affect its interest, if it has any, in the land
sought to be appropriated by the respondent. The railroad company
has elected to carry on its condemnation suit without making the
waterway company a party, and it will, therefore, be responsible
to the latter company for whatever damages it may suffer in
consequence thereof. And the relators will neither gain nor lose
anything by reason of the fact that the waterway company was not
notified of the hearing in the superior court, and did not appear
in that proceeding.
It is also objected that the respondent, the Seattle & Montana
Railroad Company, has no right to condemn this property for the
purposes indicated in its petition, because it appears from the
evidence that it has no rolling stock of its own, does not
operate its road, and does and will permit the Great Northern
Railway Company and other railroad companies to run their
passenger and freight trains over its line into Seattle, and to
use its depot and terminal grounds there situated. In other
words, it seems to be claimed that the proof shows that the
respondent company is seeking, through the exercise of the power
of eminent domain, to take the property of these relators not for
its own use and benefit, but for the use and benefit of other
corporations. We think this objection is wholly untenable. {*466}
Under what agreement or understanding between the two companies
the respondent's railroad is used and operated by the Great
Northern Railway Company, or upon what terms and conditions the
cars of other railroad companies are or may be transported over
its road, is not disclosed by the evidence; but, whatever the
arrangement is under which this may be done, it cannot be
presumed to be illegal. Indeed, it is not only the right, but the
duty, of the Seattle & Montana Railroad Company, under the law
and the constitution of this state, to permit such use of its
road by other railroad companies. Bal. Code, § 4318; Const. art.
12, § 13. And, if it be true that said company has leased its
railroad to the Great Northern Company, or any other company or
companies, or agreed to do so, it is not thereby precluded from
condemning and appropriating private property for a public use,
which may be necessary for its tracks, side tracks, depots, etc.
In re Metropolitan E. Ry. Co., supra; Crolly v. Minneapolis,
etc., Ry. Co., 30 Minn. 541 (16 N.W. 422); Mayor v. Norwich &
W.R.R. Co., 109 Mass. 103; In re New York, etc., Ry. Co., 99 N.Y.
12 (1 N.E. 27); Chicago, etc., R.R. Co. v. Illinois Central R.R.
Co., 113 Ill. 156. In In re Metropolitan El. Ry. Co., 2 N.Y.
Supp. 278, supra, it was objected that the condemnation
proceedings could not be maintained by the petitioner because of
the lease of its line of road to another company. Concerning the
objection, the court said:
"This objection is not well founded, because it has been
repeatedly decided that the leasing of the line of a railway
corporation to another corporation does not deprive the former of
the power to exercise the right of eminent domain."
The Illinois case above cited (113 Ill. 156) is an {*467}
interesting and instructive one, and is directly in point here,
especially on the question of the power of a lessor railroad
company to condemn private property for corporate purposes. In
that case, as in this, the company seeking to appropriate the
property did not own any cars or locomotives, and did not
transport passengers or freight, and had leased its line to other
companies, and yet the court there held that it was not thereby
deprived of the right to take property under the power of eminent
domain.
We see no prejudicial error in the proceeding in the superior
court, and the order under review is affirmed.
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