State ex rel. Davies v. Superior Court

Mackintosh, J. The relator, Eleanor Davies, is a minor and is the owner of an undivided interest in certain real property in King county. The board of county commissioners of King county, acting under [396] the law' giving them power to lay ont and open county roads (Rem. Code, § 5623 et seq.), receivéd the report of the county engineer, and fixed a time for the hearing of the report under § 5633, and attempted to cause notice of such hearing to he given the owners of the land to be taken. Had the relator been under no disability, the service of the notice would have been valid, but no guardian had ever been appointed for her. The county commissioners proceeded to a hearing on the report,' and having heard and considered testimony for and against the establishment of the road and as to the amount of damages which should be awarded, thereupon passed a resolution declaring a public necessity for the construction of a public road across the relator’s land, and fixed the damages for the taking of the relator’s land in the sum of one dollar, and tendered that amount to her. The award of damages not being accepted, the board of county commissioners thereafter directed proceedings to procure the right of way to be instituted in the superior court, and a guardian ad litem having been appointed for the relator by the court, through him she comes here, questioning the validity of the proceedings by this writ of review. When the law provided that a property owner should have notice of the proceedings before the county commissioners in regard to the establishment of public roads it meant, and could only mean, that notice must be given to one competent to respond thereto and to one who would be bound thereby. The minor, in response to such notice, could neither bind herself nor be bound by any action of the county commissioners at their hearing. We have held that, “in proceedings under the law . . ., the petition is not relied upon as notice to the landowners as to [397] the exact route the road will finally take. Specific notice to the landowner is now given and he is accorded a hearing before the board on that question. The reference in the petition to terminal points and course is no longer jurisdictional.” State ex rel. Havercamp v. Superior Court, 101 Wash. 260, 172 Pac. 254. This minor has had no opportunity to be heard as to the route of the proposed highway that has been established at a hearing where she, on account of her disability, has had no standing. She could not be heard as to the necessity for the establishment of the road nor as to the amount of damages which should be awarded her, nor has she even been able to accept or reject the award proffered her, and the determination of public use has been made without her having the ability to object thereto or acquiesce therein. All the preliminary acts necessary to give the court jurisdiction have been done against one whose voice could not be raised in her own behalf, and yet it is attempted to bind her by these acts. When considering the lack of notice to a wife in a hearing before the county commissioners involving the establishment of a road across community property, we said: “If there is any merit in the notice of the action of the county commissioners which is to be given, it is that the rights of the owners may be there announced, and, under the theory that it is not necessary for the wife to have notice of the proceedings before the commissioners, the husband could consent to the award which is offered, and the wife would be estopped from questioning it. It was not the intention of the law to thus deprive owners of land, whether wives or husbands, of their property without notice. The right of eminent domain is an arbitrary right, and, before owners’ property can be subjected to the use of the public, notice must be given of all the essential steps. ’ ’ Chehalis County v. Ellingson, 21 Wash. 638, 59 Pac. 485. [398] Certainly, if a wife’s property cannot be condemned where she has failed to receive notice of the proceedings preliminary to the condemnation suit, much less can the minor in this case have her property subjected to condemnation when, at the commencement of the action before the county commissioners, she was under a legal disability. The appointment of a guardian for her, followed by proper service of the notice of the hearing before the board, would have made possible the necessary preliminary steps before the board and have given the court jurisdiction. Jurisdiction never having been obtained, the order of the board was void and open to attack in this proceeding. The action will be remanded to the superior court with directions to dismiss. Ellis, C. J., Holcomb, Fullerton, Chadwick, and Webster, JJ., concur.