Public Utility District No. 1 of Douglas County and its commissioners appeal from a writ of mandamus compelling them to grant respondents Madden and Hymer perpetual easements. These easements were granted *Page 220 pursuant to RCW 54.16.220 on land acquired by appellants from respondents.
This case presents three issues: (1) whether the trial court properly ruled that a prior common-law rule does not prevail over a later statute in derogation of that rule; (2) whether the trial court properly exercised its discretion in excluding testimony of appraisers; and (3) whether article 8, section 7 of the Washington State Constitution prohibits the trial court from granting respondents the easements requested in this case. We hold the trial court acted properly and affirm the entry of the writ of mandamus.
In contemplation of the construction at Azwell, Washington of the Wells Hydroelectric Project, licensed by the Federal Power Commission, appellant public utility district brought a condemnation action against land owned by respondents. The condemnation action later was settled by stipulation and judgment in United States District Court. The stipulation did not, however, either reserve an easement or mention RCW 54.16.220, hereinafter called the Hallauer act.1 *Page 221
Within 60 days of the acquisition by appellants of the property, respondents requested a perpetual easement over the land conveyed, pursuant to the Hallauer act. Appellants refused respondents' request, claiming that no perpetual easement was provided for expressly in the stipulation and judgment conveying the land and that, therefore, none was contemplated by the parties. It is the appellants' position that the respondents are without power to demand a perpetual easement because no right to such was reserved expressly in the stipulation and judgment by which the property was conveyed. Appellants argue that a fee simple was conveyed to it, that there were no restrictions on the deed allowing for a perpetual easement in the grantor and that, therefore, respondents are without power to require appellants to grant them a perpetual easement. They rely on the common-law rule to this effect expressed in Bartlett v. Bartlett, 183 Wn. 278,48 P.2d 560 (1935).
This argument leads to the proposition that, in a contract and deed for the sale of real estate, an earlier rule of common law controls over a later statute in derogation of the common-law rule unless the statute is expressly incorporated by reference into the deed. We cannot agree.
[1] There is no vested right in an existing law — common law or statutory — which precludes its change or repeal. Truax v.Corrigan, 257 U.S. 312, 66 L.Ed. 254, 42 S.Ct. 124, 27 A.L.R. 375 (1921); Henry v. McKay, 164 Wn. 526, 3 P.2d 145, 77 A.L.R. 1025 (1931). A statute which is clearly designed as a substitute for the prior common law must be given effect. UnitedStates v. Matthews, 173 U.S. 381, 43 L.Ed. 738, 19 S.Ct. 413 (1899); Bolles v. Toledo Trust Co., 144 Ohio St. 195,58 N.E.2d 381, 157 A.L.R. 1164 *Page 222 (1944). Where, as here, the provisions of a later statute are so inconsistent with and repugnant to the prior common law that both cannot simultaneously be in force, the statute will be deemed to abrogate the common law. State v. Wilson, 43 N.H. 415 (1862).
It is a general rule of interpretation to assume that the legislature was aware of the established common-law rules applicable to the subject matter of the statute when it was enacted. Sullivan v. Ward, 304 Mass. 614, 24 N.E.2d 672, 130 A.L.R. 437 (1939). In ascertaining the legislative intent in the enactment of a statute, the state of the law prior to its adoption must be given consideration. Peet v. Mills, 76 Wn. 437,136 P. 685 (1913). But where, as here, a statute is plain and unambiguous, it must be construed in conformity to its obvious meaning without regard to the previous state of the common law. Northridge v. Grenier, 278 Mass. 438, 180 N.E. 226 (1932).
[2, 3] Appellants also contend the trial court erred in sustaining objection to the testimony of their real estate appraisers, offered as rebuttal to respondents' direct testimony that they never intended a waiver of their rights under the Hallauer act.
"Waiver" is an intentional relinquishment of a known right, but the existence of an intent to waive that right must clearly appear in order to show a waiver. O'Connor v. Tesdale, 34 Wn.2d 259,209 P.2d 274 (1949). The testimony which the trial court refused to admit, at most, would have demonstrated the true value of land without the grant back of a perpetual easement. It would not have shown respondents' waiver of their right to such access under the Hallauer act. Admission of rebuttal evidence is within the trial court's discretion. W.E. Roche Fruit Co. v. NorthernPac. Ry., 184 Wn. 695, 52 P.2d 325 (1935). We find no abuse of that discretion.
[4, 5] Appellants next argue that the Hallauer act violates article 8, section 7 of the Washington State Constitution which forbids a municipal corporation from giving "any . . . property .. . to or in aid of any individual." *Page 223 The appellant public utility district is a municipal corporation.Roehl v. PUD 1, 43 Wn.2d 214, 261 P.2d 92 (1953). Respondents are clearly "individuals" within the contemplation of article 8, section 7.
We cannot, however, find a gift under the facts of this case. We have previously held the Hallauer act applies. By its terms appellants did not receive complete control of all the rights in respondents' land until the passage of the time period within which respondents could request a perpetual easement. When that timely request was made, appellants were required to grant the perpetual easement. It was not a gift of something they had the power to refuse, but rather confirmation in respondents of an absolute right they had until the passage of time mentioned in the act. As such, there was no intent to give by the appellants, but simply the confirmation of a right never divested from respondents. The elements of a gift were not present and the constitutional provision does not apply. In re Estate ofSlocum, 83 Wn. 158, 161, 145 P. 204 (1915); Oman v. Yates,70 Wn.2d 181, 422 P.2d 489 (1967).
The judgment of the trial court is affirmed.
HALE, C.J., and FINLEY, ROSELLINI, HUNTER, HAMILTON, STAFFORD, WRIGHT, and BRACHTENBACH, JJ., concur.
Petition for rehearing denied March 4, 1974.