Hollister v. State

SULLIVAN, C. J.,

Dissenting. — I am unable to. concur with my associates in the conclusion reached in this case. I am unable to find any allegation whatever in the complaint *662where section 31, township 10 south, of range 17 east of Boise meridian is mentioned. It is on that section that the court, by its judgment, grants the right to construct dams and remove rocks.

; In paragraph 3 of the complaint as quoted in the opinion of my associates, section 36 is mentioned three times, and it is mentioned the last time therein as follows: “That plaintiff is informed and believes and therefore alleges that the lands hereinafter described and sought to be taken for public use are within the limits of and are a portion of said section thirty-six, and that said state of Idaho is the owner thereof.”

Could language be plainer? We think not. It is there alleged “that the lands hereinafter described and sought to be taken for a public use are within the limits of and are a portion of said section thirty-six, and that the state of Idaho is the owner thereof.” There is no mention there of section 31. Paragraph 5 of the complaint contains the following allegations, to wit: “That the premises sought to be taken for public use are situate in Lincoln County, State of Idaho, and are bounded and described’ as follows, to wit.” Then follows a description, by metes and bounds, of a tract of land in said section 36, containing sixty-seven hundredths of an acre, and after the description it is alleged as follows: “As more fully shown on the plat of said premises hereto attached and marked exhibit ‘A/ and made a part hereof.” It is there alleged “That the premises sought to be taken for a public use are situate in Lincoln County, State of Idaho, and bounded and described as follows.” No other land is “bounded and described” therein except land situated in said section 36. It is true that in a separate and distinct subparagraph of said fifth paragraph of the complaint, and after the particular description of the land as given above,' it is alleged as follows: “That plaintiff also desires and proposes to construct the dams shown on said plat exhibit ‘A/ and to remove the rocks from Snake river at the point indicated thereon.”

It will be observed from that allegation that the respondent alleges that he desires and proposes to construct the dams *663shown on said plat, exhibit “A,” and remove rocks from Snake river at the point indicated thereon. No allegation is made that respondent desires to take for “a public use” the land on which said dams are to be constructed or from whence the rocks are to be removed. No description is given whatever of the amount or area of land desired on which to locate said dams or the area of land from whence he desires to remove the rocks. It was just as necessary for respondent to describe the area of land desired for the dams and the area from whence he desired to remove the rocks, as it was for him to describe the sixty-seven' hundredths of an acre of land on which he desired to place his poryer-house or other machinery. But the majority of the court would have us believe that only a line is needed on which to build a dam. I have always understood that it required some width of ground as well as length on which to erect a dam.

Beferring to the sufficiency of the description of the land on which it was desired to build dams as it appears on exhibit “A,” the opinion of the majority of the court says: “It [exhibit “A”] is also drawn to a north and south line as shown thereon, thus giving not only the scale but the angle to which the map is drawn. While the bearing of each line is not marked on the plat, nor is the length of the lines marked thereon, it is a simple matter for a practical surveyor or engineer to take this map and ascertain therefrom both the length and bearing of each line shown on this exhibit. Every line and point designated upon the map is capable of being definitely and certainly ascertained, and we must therefore conclude that the description and location of the premises as found upon this map falls within the maxim, ‘Id certim, est quod cerium reddi potest”

I have no fault to find with that maxim and concede that the length and bearing of each line marked on said map may be definitely ascertained by a competent engineer. But I do deny that an engineer, be he ever so competent, can from that map ascertain how many square feet or square yards or rods of land the respondent desires to use for the foundations of said dams.

*664Under the provisions of section 5216, Eevised Statutes, the description of the land sought to be taken for a public use must be such that from it the number of square feet, yards or rods, or the number of acres may be ascertained therefrom. Those dams are to be built near the brink of Great Shoshone Falls, where immense volumes of water make a perpendicular leap of about two hundred and ten feet, and must have broad and strong foundations, and can they be built to withstand the mighty pressure thrown against them by a volume of water several feet deep and about one thousand feet in width, which is the volume of water passing there at the high stage of said river, without a broad foundation? Could those dams be successfully built on a line? I think not. A dam is now being put in said river some twenty or twenty-five miles above said falls; the foundation thereof is, I am informed, more than three hundred and fifty feet wide and said dam is many hundred feet long. Now, if we had the length of said dam, could we ascertain from that the area of land covered by that dam? I think not. Both in the findings of fact and judgment the court refers to the land on which dams are to be erected, but nowhere is the amount of land mentioned nor a description thereof given. In all probability no two engineers would agree on the amount of land required for said dams. Even if they did, the complaint must contain a description of the land to be taken for a public use.

As to the uncertainty of the .description: There is no uncertainty in regard to the width said dams are to be built or the area of land required for them, as no allegation whatever of the width of said dams or of the area of land sought to be condemned for the foundations are contained in the complaint or indicated on said Exhibit “A.” So, as I view it, the question of-uncertainty or ambiguity of description does not arise in this case. There is a total lack of allegation, not a defective one, and for that reason the authorities cited on that point in the opinion of the majority have no application whatever. In the opinion of the majority it is stated as follows: “The complaint closes with a prayer that the premises described *665therein and also indicated on exhibit fA* be condemned to a public use,” etc. The prayer is as follows:

“Wherefore plaintiff prays that it be ordered adjudged and decreed herein that the premises described in paragraph five hereof may be taken for public use as claimed by plaintiff”; (It will be observed from a reading of said paragraph 5 that the only premises described therein is sixty-seven hundredths of an acre, and it is described by metes and bounds and is in said section 36.) Following the last word of the prayer above quoted, to wit, the word “plaintiff,” is a semicolon, and after that the prayer is as follows, to wit: “that plaintiff may place dams as indicated on exhibit ‘A,’ and may remove the rocks from said Snake river as indicated thereon; that the damages for the taking of property herein be assessed, that the conflicting claims of defendants herein be determined and plaintiff prays for all proper relief.”

It is clear to me from the language used there that the only land sought to be taken for a public use under the allegations and prayer of the complaint is the sixty-seven hundredths of an acre in said section 36. It is significant that wherever the “dams” are referred to in the complaint it is alleged that plaintiff also “desires and proposes” to construct dams as shown on said plat and remove rocks as shown thereon, giving no description of the area of land desired for that purpose, and does not state that he desires such lands for a public use.

The verdict of the jury clearly shows that in assessing tfie value of the area of land to be taken for a public use that all the land assessed by them was in said section 36.

The third and other finding of facts made by the court clearly indicate that there were three parcels of land referred to, and only one of the three were sought to be taken for a public use. The third finding of fact is as follows: “That defendants [here naming them] have no right, title or interest in the premises sought to be taken for a public use,” (here follows a comma), and the finding then proceeds, “in the land on which the dams are sought to be placed or in the land at the point where the rocks are to be removed from the bed of the river,” etc.

*666If by the allegations of the complaint all of said land was sought to be taken for a public use, why was it necessary to refer to the lands on which it was proposed to place the dams and from which the rocks were to be removed separately and distinctly from those lands to be taken for a public use, as the first sentence of that finding declares "that the defendants have no right, title or interest in the premises sought to be taken for a public use”? I ask, why follow that with the sentence "in the lands on which the dams are to be placed or from whence the rocks are to be removed,” if it was intended to take that for a public use? The judgment itself clearly indicates, to me, that it was only intended to condemn, for a public use, the sixty-seven hundredths of an acre of land in said section 36.

After the formal part of the judgment, it proceeds as follows: "It is therefore ordered, adjudged and decreed that plaintiff, H. L. Hollister, is entitled to take for a public use as specified in the complaint herein, the following bounded and described premises, situate in Lincoln County, State of Idaho, to wit”: Here follows a description by metes and bounds of the said sixty-seven hundredths of an acre of land in said section 36. After that description and in a subparagraph, is the following, to wit:

"And that plaintiff be and he is hereby permitted to build dams as shown on exhibit ‘A’ attached to the complaint, a duplicate whereof is attached to this judgment and hereby referred to, and made a part hereof and also to remove rocks from the bed of Snake river at the point marked ‘Rapids to be blown out/ on said exhibit ‘A/ ”

If it were intended to condemn for a public use sufficient area of land on which to place said dams, why did the court use the language last above quoted to wit: "He is hereby permitted to build dams as shown on exhibit ‘A/ ” instead of the language used in condemning the sixty-seven hundredths acres, to wit: "that the plaintiff is entitled to take for a public use” the land "bounded and described,” etc., and then bound and describe it?

*667The three distinctions referred to have been carried all through the pleadings, finding of facts and judgment, to wit, the sixty-seven hundredths of an acre in section 36 was to be taken for a public use, condemned, and the other land referred to as that on which plaintiff "desires and proposes” to build clams and the land or bed of the river from which rocks are to be removed.

The judgment, as I view it, only authorizes the taking for a public use the land described as being in section 36, and a permission to build dams on and remove rocks from portions of section 31, without describing the amount of land on which a desire was expressed to build dams, and from which respondent desired to remove rocks.

Section 5211, Bevised Statutes, contains a classification of the estates and rights in lands subject to be taken for a public use. The first subdivision is as follows: “1. A fee simple, when taken for public buildings or public grounds, or for permanent buildings, for reservoirs and dams and permanent flooding occasioned thereby, or for an outlet for a flow, or a place for the deposit of debris or tailings of a mine.”

That subdivision provides that a fee simple title is taken when lands are taken for "dams,” and on the oral argument counsel for respondent contended that the dams referred to in the complaint were not for the purposes of the dams mentioned in said subdivision of said section, thereby implying, at least, that the land or title described for the construction of said dams was more in the nature of an easement than a fee simple. And in my view of the matter, the complaint was drawn upon that theory and not upon the theory that a fee simple title was desired except for the said sixty-seven hundredths of an acre of land particularly described in the complaint. A dam being a permanent structure, a fee simple title must be taken to the land on which it is to be located. This fact -further emphasizes the construction that I have placed upon the allegations of said complaint and the prayer thereof and the finding of facts made by the court and the judgment.

Section 5216, Bevised Statutes, provides what facts must be stated in the complaint in a proceeding like that at bar.

*668“1. Must be stated the name of the one fin charge of the public use’ as the plaintiff.

“2. The names of all owners and claimants of the property if known, or a statement that they are unknown, and such par- ■ ties are to be made defendants.”

“5. A description of each piece of property sought to be taken, and whether the same includes the whole or only a part of an entire tract or parcel,” etc.

It is alleged in the fourth paragraph of the complaint that appellants claim to be the owners of the lands thereinafter described “and sought to be taken for a public use,” and the only description of any land in the complaint is that of sixty-seven hundredths of an acre, situated in section 36; and, of course, as appellants claimed no land in section 36, they did not appear. It is nowhere alleged that any land whatever in section-31 is sought to be taken for a public use and as said appellants are the owners of lands in section 31, and not in section 36, they failed to appear, as they had a right to do. It is not alleged in said complaint that appellants are the owners of section 31, or that the names of the owners are unknown. There is-a total absence of allegation on that point. The complaint is fatally defective for that reason.

As to the provisions of the fifth subdivision of said section, there is no description whatever of the land sought to be taken for a public use for dams, nor does the complaint allege whether the land desired to be taken “includes the whole or any part of the entire tract.” As before shown herein, the area, of land required for said dams cannot be ascertained from exhibit “A,” nor is there any allegation in said complaint that said plat is a correct plat or that it is drawn on a scale of one inch to forty feet. While there is a note of that kind on the map, is that a sufficient allegation that said map correctly describes the lands sought to be taken in section 31, and that it is drawn on a scale of one inch to forty feet? If all such allegations can be supplied by an exhibit, we had as well make all material allegations by exhibits and let the opposing party employ an expert to figure them out. The complaint is totally lacking in the allegations referred to.

*669In regard to Snake river being a navigable stream: I understand the doctrine in this country is that streams are navigable in law which are navigable in fact, and that actual navigability is a question of fact. If that be true, and the question of navigability is necessarily an issue in this case (and it was so treated by the court in its findings of facts), it must be alleged in the complaint, and it was not. Certain facts (of which the court may take judicial notice under the law) if necessary to a recovery in an action must be alleged in the complaint, and after making such allegations the party making them need not prove them, but the court will take judicial notice thereof.

The question arises whether Snake river is a navigable stream at the point where said dams are to be placed and rock to be removed. The said exhibit “A” indicates that that point is just above the brink of the Great Shoshone Falls, where Snake river is about nine hundred feet wide. At said falls the waters of said stream have a perpendicular drop of about two hundred and ten feet, and about .three miles above and up the river from them are situated Twin Falls, where the waters of said stream have a perpendicular drop of aboilt one hundred and sixty feet; thus within about three miles Snake river has a fall of about three hundred and seventy feet. Then will it be contended that that river is navigable at that point or would ever be made so ? I think not. If it is not navigable the appellants own the land in section 31 to the point where the township line passes between said sections 36 and 31, and they should have been named as such owners in the complaint.

The facts above stated are a part of the history of this state and are significant in this case, and for that reason I refer to them.

It is admitted by my associates that this complaint could not have withstood the assault of a special demurrer and apply the same rule of construction as are applicable to pleadings in ordinary actions. I do not concede the latter proposition.

The statute, section 6216, provides what a complaint in a proceeding of this kind must contain, and unless it contains substantially every fact required, the court acquires no jurisdic*670tion over a defaulting defendant. And as the complaint failed to state the names of the owners of the land on which it was proposed to place dams and from which rocks may be removed, and failed to describe those lands, the court acquired no jurisdiction over the defaulting defendants and the judgment, so far as all land is concerned in section 31, is absolutely void.

(June 17, 1904.)

In Canyon County v. Toole, ante, p. 561, 75 Pac. 609, which was a proceeding to condemn land for a public road, this court held that where the noneonsenting land owner failed to appear at the hearing, the board of county commissioners had no jurisdiction to hear the same unless the petition contained substantially a statement of all of the facts required by the statute in such cases.

So in the case at bar, as the statute declares what facts must be alleged in the complaint and it fails to contain them, the court acquires no jurisdiction of defaulting defendants, and in such case a judgment rendered therein is absolutely void. Facts required and not pleaded ought not to be placed therein by construction.

The judgment should he reversed.