State Ex Rel. Henry v. Superior Ct. , 155 Wash. 370 ( 1930 )

I am unable to agree with the majority opinion. One of the basic principles on which the right of eminent domain rests is that there must be a necessity in fact for the taking of the property sought to be condemned.

Without reviewing the record in this case, it sufficiently appears, and in fact is conceded by the majority opinion, that the respondent mortgage company now has a right in perpetuity to cross the lands of relators for the purpose of maintaining a pipe line. This is all they can obtain or hope to obtain in the condemnation proceedings which have been instituted. It is inconceivable to me that one can start proceedings to secure a right he has already obtained by private contract, particularly where, as in this case, he can obtain no other, further or greater right than the contract already gives him.

In this connection, it might be well to call attention to the trial court's finding No. 5, which reads as follows:

". . . at all times prior to filing this proceeding has had and now has and enjoys a right of way easement under and by virtue of that certain agreement hereinabove mentioned for a ten-inch pipe line and has had and now has said pipe and pumping plant of sufficient capacity to fully supply all its said lands both irrigated and possible of irrigation, in, over, and upon or across the lands of relators Henry and has had and now has the right of ingress and egress for the purpose of maintenance and repair of said pipe line and plant."

This finding shows conclusively that every right obtainable by condemnation has already been obtained years ago by private contract, and that there is in fact no necessity for condemnation.

It is true that, generally speaking, the courts will not inquire into the motives actuating the condemnor in seeking to condemn particular property, although there are cases to the contrary; but in this particular case, it is apparent that the only object and purpose in condemning this land is to obtain relief from the obligations imposed by the contract in question. Public policy requires that persons competent to contract shall have the right to contract, and that their contracts, if entered into fairly and voluntarily shall be held sacred and enforced by the courts.

The respondent mortgage company and its predecessor in interest having obtained by contract every right which it can obtain by eminent domain, justice and fair dealing demand that it be required to abide by the terms of the contract under which it and its predecessors have been operating for a period of about ten years last past.

I therefore dissent.

FULLERTON, J., concurs with FRENCH, J.