[No. 17419. Department Two. May 3, 1923.]
PORT OF EVERETT, Respondent, v. EVERETT IMPROVEMENT
COMPANY et al., Appellants. «1»
EMINENT DOMAIN (104) - BY PORT DISTRICT - PROCEEDINGS -
CONDITIONS PRECEDENT - ADOPTION OF PLAN - POWERS OF COMMISSION -
STATUTES. It is not a compliance with the Port District Act, Rem.
Comp. Stat., SSSS 9694 and 9695, requiring the adoption of a
comprehensive scheme for improvements before condemning lands, to
adopt a resolution which in effect does no more than declare the
port commission's purpose, at some indefinite time in the future,
to exercise the general powers conferred on port districts, without
any map, plan, specification or description of the work intended to
be constructed; especially in view of SS 9695, providing that the
improvement shall be made substantially on the plans adopted,
unless changes are authorized by a majority vote of the qualified
electors.
SAME (39) - NECESSITY FOR APPROPRIATION - EVIDENCE -
SUFFICIENCY. Where there are no general plans for a port district
improvement, it cannot be said that there is any "necessity" for
the condemnation of particular property which the district believes
it may have use for in the future.
«1» Reported in 214 Pac. 1064.
PORT OF EVERETT v. EVERETT IMP. CO. 487
May 1923 Opinion Per FULLERTON, J.
Appeal from judgments of the superior court for
Snohomish county, Alston, J., entered April 20, 1922,
adjudging a public use and necessity and awarding
damages in condemnation proceedings. Reversed.
Lyle, Henderson & Carnahan and J. A. Coleman, for
appellants.
Clifford Newton, for respondent.
FULLERTON, J. - The legislature of the state of
Washington, at its biennial session of 1911, authorized
the establishment in the various counties of this state
of "Port Districts, for the acquirement, construction,
maintenance, operation, development and regulation of
a system of harbor improvements, and rail and water
transfer and terminal facilities within such district."
Laws of 1911, p. 412; Rem. Comp. Stat., SSSS 9688-9718.
Section 9692 of the act provides:
"All port districts organized under the provisions of
this act shall be and are hereby authorized to acquire
by purchase or condemnation, or both, all lands,
property, property rights, leases or easements necessary
for the purposes of the port districts, and
to exercise the right of eminent domain in the acquirement
or damaging of all land, property, property
rights, leases or easements, and the levying
and collection of assessments upon property for the
payment of all damages and compensation in carrying
out the provisions for which said district
shall have been created, and such right shall be
exercised in the same manner and by the same procedure
as is or may be provided by law for cities of the
first class, except in so far as such may be inconsistent
with the provisions of this act, and the duties devolving
upon the city treasurer under said law be and the same
are hereby imposed upon the county treasurer for the
purposes of this act; to lay out, construct, condemn,
purchase, acquire, add to, maintain, conduct and operate
488 PORT OF EVERETT v. EVERETT IMP. CO.
Opinion Per FULLERTON, J. 124 Wash.
any and all systems of seawalls, jetties, piers,
wharves, docks, boat landings, warehouses, storehouses,
elevators, grain-bins, cold storage plants, terminal
icing plants, bunkers, oil tanks, ferries, canals,
locks, tidal basins, bridges, subways, tramways,
cableways, conveyers, together with modern appliances for
the economical handling, storing and transporting of
freight and handling of passenger traffic, and other
harbor improvements, rail and water transfer and terminal
facilities within such port district; and in connection
with the operation of the improvement of the
port district to perform all customary services
including the handling, weighing, measuring and
reconditioning all commodities received; . . ."
Section 9694 provides:
"It shall be the duty of the port commission of any
port district, before creating any improvements hereunder,
to adopt a comprehensive scheme of harbor improvement
in such port district, after a public hearing
thereon, of which at least ten days' notice shall be
published in a daily newspaper of general circulation
in such port district, and no expenditure for the
carrying on of any harbor improvements shall be made by
said port commission other than the necessary salaries,
including engineers, clerical and office expense of such
port district, and the cost of engineering, surveying,
preparation and collection of data necessary for the
making and adoption of a general scheme of harbor
improvements in such port district, unless and until
such comprehensive scheme of harbor improvement
has been so officially adopted by the port commission
and ratified by a majority vote of the people of such
port district voting thereon in favor thereof at an
election which shall be held for such purpose."
Section 9695 provides:
"When such general plans shall have been adopted
or approved, as aforesaid, every improvement to be
made by said commission shall be made substantially
in accordance therewith unless and until such general
PORT OF EVERETT v. EVERETT IMP. CO. 489
May 1923 Opinion Per FULLERTON, J.
plans shall have been changed by a majority vote of the
qualified electors of the port district voting thereon at
an election held for such purpose."
Under and in pursuance of the foregoing statutes,
the respondent, Port of Everett, was organized. Thereafter
its commissioners, as a comprehensive scheme of
harbor improvement, adopted the following:
"RESOLUTION No. 15
"A RESOLUTION OF THE PORT OF EVERETT COMMISSION
ADOPTING A COMPREHENSIVE SCHEME OF HARBOR
IMPROVEMENT OF THE PORT DISTRICT OF THE PORT
OF EVERETT.
"BE IT RESOLVED BY THE PORT COMMISSION OF THE PORT
OF EVERETT AS FOLLOWS:
"That the Port of Everett Commission does hereby
officially adopt a comprehensive scheme of harbor improvement
in the Port District of the Port of Everett
after having a public hearing thereon after ten days'
notice thereof published in a daily newspaper of general
circulation in said Port District as follows:
GENERAL FEATURES.
"The acquirement, construction, maintenance, operation,
development and regulation of a system of harbor
development, and rail and water transfer and terminal
Facilities within the Port District of the Port of
Everett.
"These general features to be accomplished by the
acquisition of a tract or tracts of shore or tidelands
with adjacent land as may be found necessary or convenient
and by the construction thereon of sea walls,
jetties, piers, quays, slips, gridirons, wharves, docks,
boat landings, warehouses, storehouses, elevators,
grain-bins, terminal icing plants, bunkers, bridges, oil
leaks, cold steerage plants, together with modern
appliances for the economical handling, storing and
transporting of freight, and handling passenger traffic;
also the construction of highways, railways and terminal
tracts and yards and the equipment and operation
of the same so as to accomplish the convenient
490 PORT OF EVERETT v. EVERETT IMP. CO.
Opinion Per FULLERTON, J. 124 Wash.
and economical transfer between ship and railway, and
to and from warehouses, or storehouses, to or from
land or sea; also the acquirement or construction and
operation of tramways, cableways, ferries and conveyance
to be operated in connection with the foregoing.
"(1) The particular features of the plan which, in
connection with the foregoing general features and
general method of accomplishment of the same, constitute
said comprehensive scheme of harbor improvement,
consist of the following:
"(1) (A) The acquiring by purchase of condemnation,
or both, of all lands, property, property rights,
leases or easements necessary for the purpose of the
Port District of the Port of Everett appertaining and
belonging to that certain tract of land situated in
Snohomish county, Washington, lying west of the Northern
Pacific right-of-way at the westerly end of Hewitt
Avenue, Everett, Washington, known as the City Dock
Site, more particularly described as follows:
[Here follows a description by metes and bounds of
a tract of land containing 1.71 acres.]
"(1) (B) The acquiring by purchase or condemnation,
or both, of all lands, property, property rights,
leases or easements necessary for the purpose of the
Port District of the Port of Everett appertaining and
belonging to that certain tract of land situated in
Snohomish county, Washington, lying west of the Federal
Pierhead line on the west side of the Snohomish river
channel, more particularly described as follows:
[Here follows a description by metes and bounds of
a tract of land containing 1,860 acres.]
"(1) (C) The acquiring by purchase or condemnation,
or both, of all lands, property, property rights,
leases or easements necessary for the purpose of the
Port District of the Port of Everett appertaining and
belonging to that certain tract of land situate in
Snohomish county, Washington, lying north of Front street
in Mukilteo and at the foot of Lincoln street, more
particularly described as follows:
PORT OF EVERETT v. EVERETT IMP. CO. 491
May 1923 Opinion Per FULLERTON, J.
[Here follows a description by metes and bounds of
a tract of land containing 0.16 acres.]
"(2) The waterways and properties above set forth
to be developed as follows:
"The properties described in Paragraph (1) (a), by
the improvement of said wharf and warehouses located
on said tract of land, by renewal of floors and floor
system, extension of wharf, if necessary, and any other
improvements of a maintenance character or otherwise.
"The properties described in (1) (b), by the construction
of several waterways of different widths.
From certain of these waterways, slips will run towards
the center of the tract at an angle of about fortyfive
degrees, and others to be improved by the construction
of quay walls. Such slips, wharves, and quay
walls to be constructed at such intervals as will provide
piers of suitable widths for the construction thereon
of the improvements herein mentioned. Such arrangement
of waterways provides strips of land
several hundred feet in width on which roadways, railroad
tracts, warehouses, or industrial plants and buildings
may be located and maintained, all in accordance
with the plans set forth in the comprehensive scheme
as approved.
"The properties described in Paragraph (1) (c) , by
the construction of a pier suitable for small boats,
together with a movable landing for a ferry. The
foundation to be of pile structure and the superstructure to
be of wood."
The foregoing resolution was adopted by the port
commissioners, after a public hearing had thereon of
which due notice was given, and was subsequently ratified
by a majority vote of the people of such port district
voting thereon at an election held for such purpose.
Following the ratification of the resolution, the
port commissioners passed a further resolution authorizing
the acquisition of the real property described
therein by condemnation. The present action was
492 PORT OF EVERETT v. EVERETT IMP. CO.
Opinion Per FULLERTON, J. 124 Wash.
thereupon begun for that purpose. The land comprising
the 1,860 acre tract was at that time owned in part
by the Everett Improvement Company, in part by the
heirs of Charles Whitman, deceased, in part by A. M.
Bailey and his wife, and in part by C. E. Sutherland
and his wife. These parties appeared and resisted the
proceedings, basing their principal objection on the
ground that the comprehensive scheme adopted by the
port commissioners was too indefinite and uncertain to
comply with the requirements of the statutes, and insufficient
upon which to base a condemnation proceeding.
The objection was overruled by the court and an
adjudication of public use entered. Thereafter a trial
was had before a jury as to the compensation to be paid
for the property taken; the jury finding its value to be
two dollars per acre. From the judgments entered, the
owner's of the property appeal.
The appellants urge in this court the objections
made in the court below. It is our opinion that the
objections should have been sustained. The whole of
the contemplated comprehensive scheme is embodied
in the resolution above quoted; no map, plan, specification,
or detailed description of the work intended to
be constructed accompanied the resolution. The resolution,
it will be noted, is nothing more in effect than a
declaration that the port commission purposes to
exercise at some indeterminate time in the future the
general powers the statute confers on port districts. The
comprehensive scheme provided for in SSSS 9694 and
9695 of the code must mean something more than this.
In our opinion, to comply with the statute, the commission
must adopt, and have approved, at least a general
outline plan of the improvements it intends to construct.
If it is intended to construct sea walls, jetties,
piers, quays, slips, gridirons, and the other structures
PORT OF EVERETT v. EVERETT IMP. CO. 493
May 1923 Opinion Per FULLERTON, J.
and things enumerated in the resolution, a general plan
of the several structures must be outlined, showing
with definiteness their location, character and general
dimensions, so that one examining the plan may know
with some degree of certainty what is intended to be
done. This we think evident from the general tenor
of the port district act, and particularly so from SS 9695
thereof. This section provides, it will be observed, that,
when such general plans have been adopted, every
improvement to be made by the commission shall be made
substantially in accordance therewith, and that changes
therein can be made only by a majority vote of the
qualified electors of the port district at an election held
for that purpose. Manifestly, if it was the intent of
the statute that the port commission could adopt as its
comprehensive scheme the general powers conferred
on the district, and thereafter construct such of the
enumerated things as they please, this clause of the
statute would have no meaning; there could be no departure
from the comprehensive scheme without a departure
from the powers conferred on the port district
by the legislature.
Again, the port commission, by the terms of the act,
is limited in its acquisition of property by eminent
domain to property "necessary for the purposes of the
port district." While the term "necessary" as here
used undoubtedly means such property as is reasonably
necessary for its purposes, that is, such property as
its comprehensive scheme will require when completed,
it does not mean all such property as the port commission
may deem that it all possibly need for its purposes
at some remote time in the future. Indeed, it
may be seriously questioned whether the legislature
can grant to a municipal corporation the power to acquire
by condemnation property which the municipality
494 PORT OF EVERETT v. EVERETT IMP. CO.
Opinion Per FULLERTON, J. 124 Wash.
desires merely because it believes that at some
time in the future it may have use for it, as this would
be to say that the legislature could grant to the
municipality power to acquire property for speculative uses;
but certainly where the grant is of power to acquire
only necessary property, there must be a showing that
the particular property sought to be acquired is thus
necessary, and without some definite stated plan of
improvement, this necessity cannot be shown. So here,
since there is no such definite plan, it is impossible for
the court or anyone to know whether all or what particular
part of the property here sought to be condemned
is necessary for the use of the port district,
and the right of condemnation must fail for this reasons.
But we think it unnecessary to pursue the inquiry.
The trial court erred in directing a condemnation, and
its judgment is reversed with instructions to dismiss
the proceedings.
MAIN, C. J., PARKER, and TOLMAN, JJ., concur.