State Ex Rel. Whitman County v. Sup'r Ct., 123 Wash. 182,

212 Pac. 268 (1923).

182 STATE EX REL. WHITMAN COUNTY v. SUP'R CT.
Statement of Case. 123 Wash.

      [No. 17231. Department One. January 19, 1923.]
      THE STATE OF WASHINGTON, on the Relation of
      WHITMAN COUNTY, Plaintiff, v. THE SUPERIOR
                COURT FOR WHITMAN COUNTY, R. L.
                McCroskey, Judge, Respondent. «1»

CERTIORARI (3) - JURISDICTION - AMOUNT IN CONTROVERSY.
Certiorari lies to review an order dismissing proceedings
by a county to condemn land for a highway, regardless of
the value or amount in controversy.

EMINENT DOMAIN (158) - HIGHWAYS (21) - PROCEEDINGS - REVIEW

ON CERTIORARI. No appeal being provided for, certiorari lies to
review an order dismissing proceedings to condemn lands for a
highway.

EMINENT DOMAIN (102) - PROCEEDINGS - RIGHT TO INSTITUTE. In
proceedings to condemn lands for a county highway, it will be
presumed that the prosecuting attorney was authorized to apply
for the writ.

EMINENT DOMAIN (113) - HIGHWAYS (14) - NOTICE TO OWNERS -
JURISDICTION. Proceedings to condemn land for a highway cannot be
objected to for want of jurisdiction by persons brought in by due
process on the ground that other property owners had not been
notified, especially where the land of such persons is not taken,
in view of Rem. Comp. Stat., SS 6468, by which those interested
in the lands to be taken and not consenting are the only necessary
parties to the condemnation proceedings.

EMINENT DOMAIN (107, 115) - PROCEEDINGS - JURISDICTION - SERVICE

OF NOTICE. In proceedings to condemn for a county road,
nonappearance of minors at the hearing does not affect the
jurisdiction where each of them and their general guardian for
each of them were personally served with notice of hearing.

SAME (116) - PROCEEDINGS - NOTICE - PROOF OF SERVICE. Upon
proof of service of notice in condemnation proceedings by
affidavit of a deputy sheriff making the service, it will be
presumed that he was of legal age and qualified to make the
service.

Certiorari to review a judgment of the superior
court for Whitman county, McCroskey, J., entered
April 12, 1922, dismissing condemnation proceedings,
after a hearing before the court. Reversed.

«1» Reported in 212 Pac. 268.

STATE EX REL. WHITMAN COUNTY v. SUP'R CT. 183
Jan. 1923 Opinion Per HOLCOMB, J.

G. A. Weldon and Hanna, Miller & Hanna, for
appellant.

Pickrell & Stotler, for respondent.

HOLCOMB

HOLCOMB, J. - Whitman county, a municipal
corporation, through proceedings instituted by a petition and
bond filed with its board of county commissioners,
sought to establish a change in a county highway over
certain lands in that county, the highway being known
as the "Herman Schreiber Road," and the proceedings
upon the petition in question being known as
"A Change in the Herman Schreiber Road." Upon.
the filing of the petition and bond, the board of county
commissioners ordered the route of the road, with the
change the petition called for, to be surveyed by the
county engineer. The survey was made the engineer
filed in the commissioners' court the information required
by Rem. Comp. Stat., SS 6463, in full, and he
recommended that the change petitioned for and as
surveyed by him be made. The county commissioners,
by their order, fixed July 18, 1921, at 1 o'clock p.m.
at their court room as the time and place of hearing,
and caused notice of the hearing to be given.

At the time the hearing was set, it was continued
by order of the board to September 7, 1921, at 9:30
o'clock a.m. On that day the commissioners proceeded
with the hearing and entered an order awarding damages
to the non-consenting property owners, and an
order establishing changes in the road, as such changes
were surveyed and recommended by the report of the
county engineer, which included a change over and
across the land of John O'Neil, and the others interested
therein, and in the order the commissioners
directed the county attorney to institute proceedings
pursuant to the provisions of the statute. Subsequently
and before any condemnation proceedings

184 STATE EX REL. WHITMAN COUNTY v. SUP'R CT.
Opinion Per HOLCOMB, J. 123 Wash.

were begun, on October 3, 1921, it appearing to the
commissioners that the tenants upon the land of John
O'Neil had not been made any award in the former
order and award of damages, they made a further
award to these tenants. Thereafter on October 7,
1921, the clerk of the board of county commissioners,
acting for the county, made tenders of the awards of
damages, as determined and fixed by the board, to
each of the persons who were subsequently made respondents
in an action by the county to condemn the
land, including tenders to the guardian of the minors,
and the minors themselves in person, except as to the
award to Mamie Neal, who was at that time a nonresident
of the county. The awards having been refused
upon such tenders, the clerk of the board of
commissioners cashed the warrants drawn for the
awards made and paid the money into the registry of
the superior court of Whitman county, including the
award to Mamie Neal, to whom tender had not been
made.

The petition and amended petition, prepared by the
county attorney and filed in the superior court of
Whitman county to condemn a right of way, made
John O'Neil and the others who had not consented to
the taking of their lands and accepted the compensation
and damages awarded, and others, as the parties,
designated respondents, to the action. They were all
served with the notice of the petition as required by
the statute.

At the time of the hearing in the superior court as
fixed by the notice, all the respondents, so called,
appeared specially by motion, objecting to the jurisdiction
of the court, which motion was overruled. The
respondents then made answer, seeking to maintain
their special appearance, denied certain paragraphs
of the amended petition, and denied the validity and

STATE EX REL. WHITMAN COUNTY v. SUP'R CT. 185
Jan. 1923 Opinion Per HOLCOMB, J.

legality of all the allegations of the proceedings as
alleged in the amended petition, whereby they sought
to raise questions of jurisdiction before the superior
court only.

The county then made proof of the proceedings in
the commissioners' court by producing the records of
the commissioners, and also made parol proof of their
allegations in their petition as to tenders and other
matters. Respondents, in the superior court, moved
to dismiss the action, which was denied, and they then
made proof under their answer, but over the objection
of the county, from the commissioners' records and by
certified copies of certain instruments from the auditor's
record, and by parol proof, to show that certain
landowners, and certain mortgagees holding incumbrances
upon the land through which the change in
the Herman Schreiber Road as petitioned for and
surveyed, none of whom had filed waivers, and none
of whom had any interest in the land sought to be
condemned in the proceedings before the court, had
not been served, so far as the record of the commissioners
showed, with notice of the hearing before the
board.

The trial court later made an order finding that the
county commissioners of Whitman county did not have
jurisdiction of the proceedings concerning the road
sought to be changed and established, nor of certain
persons interested therein, and that the superior court
had not acquired jurisdiction in the action pending,
and adjudged that, because of the lack of jurisdiction
of the county commissioners, the superior court had
not acquired and did not have jurisdiction of the
action, and dismissed the condemnation proceedings,
refusing to grant any relief prayed for in the amended
petition. The county excepted to these conclusions,

186 STATE EX REL. WHITMAN COUNTY v. SUP'R CT.
Opinion Per HOLCOMB, J. 123 Wash.

and the order of the court, and brought the
proceedings here by writ of review.

Respondents in this court object to the jurisdiction
of this court to entertain this proceeding, for the
reasons that the amount involved is less than $200, that
petitioner has an adequate remedy at law, and that
there is no authority shown herein for the proceeding,
in that there is no allegation that the county commissioners
have directed or authorized the application
herein.

These objections must be overruled. This is not a
proceeding "for the recovery of money or personal
property where the original amount in controversy or
the value of the property does not exceed the sum of
$200," but is an action to condemn real property.
Moreover, this court has entertained jurisdiction in
just this kind of proceeding by review where it was
shown that the relators, the landowners, had been
adjudged damages of only $65. State ex rel. Schroeder
v. Superior Court, 29 Wash. 1, 69 Pac. 366. And we
have entertained such proceedings in subsequent cases;
State ex rel. Davies v. Superior Court, 102 Wash. 395,
173 Pac. 189, and State ex rel. Cation v. Superior
Court, 110 Wash. 506, 188 Pac. 546. Nor is there any
merit in the other grounds of objection by respondents.
No appeal is provided for in such cases as this, and
we have uniformly entertained jurisdiction by way of
review in such matters.

As to the contention that the county attorney was
not shown to have been authorized to apply for the
writ, it will be presumed that the county attorney had
the necessary authority before proceeding.

While respondents showed that certain mortgage
incumbrances existed against certain lands over which
the changes in the Herman Schreiber road was

STATE EX REL. WHITMAN COUNTY v. SUP'R CT. 187
Jan. 1923 Opinion Per HOLCOMB, J.

surveyed, yet the record and the engineer's plat of the
road and his testimony showed that the lands covered
by these mortgages were not affected by any change
in the road, except in the instances where waivers
were obtained.

There is also objection by respondents in that one
Marion Freeman and wife, whose lands were shown
to be affected by the survey as made by the engineer,
are not shown by the record of the commissioners'
proceedings to have been served with the notice of
hearing before the commissioners. There is evidence,
however, by the county engineer and by Marion Freeman
showing that there was an agreement between
Freeman and the board of county commissioners that
the road would not be changed at the particular point
where it would affect his land, and it was agreed that
there would be no change in the location of the road
in establishing a new survey which would take any of
the land belonging to the Freemans.

There was objection also on behalf of respondents
in that two Schreiber minors, who were shown to be
parties interested in land not sought to be condemned
in the action pending, as shown by the report of the
engineer, had not been served with notice, except that
there was an attempted waiver in the record signed
by Fred A. Schreiber, as guardian, and by Hattie
Schreiber, his wife. There is some doubt as to the
sufficiency and validity of the waiver on behalf of
these minors by the purported guardian.

As to these objections respondents contend that the
board of commissioners should obtain jurisdiction over
all parties to the road between the terminal points
named as "owners, lessees and incumbrancers," specified
in the statute, or they obtain no jurisdiction.

None of the parties alluded to above are
respondents in this proceeding, or, so far as shown in this

188 STATE EX REL. WHITMAN COUNTY v. SUP'R CT.
Opinion Per HOLCOMB, J. 123 Wash.

record, are complaining. As to some of them, the
proceedings might be void, should they question them
when their legal disability has been removed, or
otherwise in proper manner and time.

Ordinarily only those who are not notified have a
just right to complain; if the proceedings against them
are valid, those who are notified cannot be injured by
the failure to give notice to other persons. Proceedings
in highway cases, therefore, are not void as to
those persons who by due process of law have been
brought into court, although other property owners
may not have received notice. There may be, of
course, exceptions to the general rule that failure to
notify one party will not invalidate the proceedings
as to others having different interests, as, for instance,
a case where the consequences of the failure
to give notice extend so far as to make it impossible
for a road or street to be opened. Elliott, Roads &
Streets (3d ed.), SS 359. The same work, in SS 358,
has this:

"It is not, however, to be understood that where
there is jurisdiction of the subject-matter and there
are many persons interested as owners of different
parcels of land, failure to give notice to some of the
property owners will vitiate the entire proceedings.
In such cases the better opinion is that the proceeding
is void only as to those who have not been notified,
but valid as to those who have had notice."

In this case the statute, Rem. Comp. Stat., SS 6468,
gives the commissioners power to determine ". . .
whether the road shall be established in accordance
with the report of the viewers [engineer], *or
otherwise*, or at all . . . . " The decision and
order of the board of commissioners as to where
changes should be made, and where not, in the road
petitioned to be changed, is final and conclusive. The