BOOM COMPANIES ‑- FILING PLATS WITH SECRETARY OF STATE ‑- NECESSITY FOR WHERE NO CONDEMNATION INVOLVED

BOOM COMPANIES ‑- FILING PLATS WITH SECRETARY OF STATE ‑- NECESSITY FOR WHERE NO CONDEMNATION INVOLVED.

A corporation organized as a boom company must file with the Secretary of State, the plat or survey referred to in Rem. Rev. Stat., section 8400 (section 76.07.02 [[RCW 76.28.020]], RCW) even though it is unnecessary for such corporation to acquire private property by condemnation.

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                                                                   March 6, 1951

Honorable Earl Coe
Secretary of State
Olympia, Washington                                                                                                Cite as:  AGO 49-51 No. 463

Attention:  Ray J. Yeoman, Assistant

Dear Sir:

            By letter of February 27, 1951, you ask our opinion on the question:

            "Must a corporation organized as a boom company file a boom plat with this office as required by section 76.07.02 RCW [[RCW 76.28.020]], if they own, rent or lease the property being used and are not condemning or appropriating private property?"

            Our conclusion is:

            A corporation organized as a boom company must file with the Secretary of State, the plat or survey referred to in Rem. Rev. Stat., section 8400 (section 76.07.02 RCW [[RCW 76.28.020]]) even though it is unnecessary for such corporation to acquire private property by condemnation.

                                                                     ANALYSIS

            Rem. Rev. Stat., 8399 (section 76.07.01, RCW [[RCW 76.28.010]]) authorizes the organization of corporations for boom company purposes, and gives such corporations the power of eminent domain.  Rem. Rev. Stat., section 8400 (section 76.07.02, RCW [[RCW 76.28.020]]) provides in part that:

             [[Orig. Op. Page 2]]

            "Any corporation hereafter organized for the purpose mentioned in the last preceding section, shall within ninety days after its articles of incorporation have been filed, proceed to file in the office of the secretary of statea plat or survey of so much of the shore lines of the waters of the state and lands contiguous thereto as are proposed to be appropriated for said purpose by said corporation.  * * *" (Emphasis supplied).

            Subsequent portions of section 8400 make provision for the filing of additional plats or surveys when the corporation desires to extend its operations "to portions" or tributaries of streams not embraced in the original plat, or whenever "by reason of floods or otherwise," the channel of any stream is so changed as to put such stream upon the limits of plats previously filed.

            The plat required to be filed in section 8400 is "of so much of the shore lines of the waters of the stateand lands contiguous thereto" as are proposed to be "appropriated" for boom company purposes.  Section 8400 makes no reference to property sought to be acquired under the exercise of power of eminent domain as authorized in section 8399, unless it be through the phrase "as are proposed to be appropriated."

            The term, "appropriation of land" is defined as "the act of selecting, devoting, or setting apart land for a particular use or purpose, as where land is appropriated for public buildings, military reservations or other public uses."  Black's Law Dictionary, 2d Ed., page 81.

            We do not believe that the word "appropriated" as used in section 8400 refers only to property which may be condemned under the power of eminent domain given by section 8399.  On the contrary, the provisions of section 8400, including those relating to the filing of additional or supplemental facts, indicate that the plat or survey to be filed is a designation of the boundaries of the water and land area which the boom company proposes to use for its purposes.  It is an appropriation plat or location plat by which the company, as a public service corporation officially defines the area which it proposes to devote to the public service involved in its operations.  As stated by the court in the case of St. Martin v. Skamania Boom Company, 79 Wash. 393, 401, 140 Pac. 355:

             [[Orig. Op. Page 3]]

            "* * * In such a case, it is elementary that the company making, in good faith, the first location, has the better right.  * * *"

            InNicomen Boom Co., v. North Shore, etc. Co., 40 Wash. 315, 328, 82 Pac. 412, our Supreme Court compared the rights of the boom company which had filed the plat required by Rem. Rev. Stat., section 8400, to the rights of a railroad company which had complied with the law with respect to the filing of a plat of a location of its lines.  The court there said:

            "* * * Applying the rule followed in the railroad cases, appellant had the right, after filing its plat of location, to acquire the title to the lands within the limits of its location.  It was an absolute right which it could enforce by condemnation proceedings to the exclusion of any other boom company that might seek to appropriate the same land.  It did acquire these lands, not by condemnation, but by purchase.  * * *"

            In the case ofState ex rel. Wash. Boom Co. v. Chehalis Boom Co., 82 Wash. 509, 514; 144 Pac. 719, involving conflicting claims of two boom companies to land and water areas sought to be condemned for boom company purposes, a part of which was owned outright by one of the parties, the court said:

            "The mere fact of ownership of this property by respondent, even though it is a public service corporation, is no impediment to the acquisition of such property through eminent domain proceedings by relator.  * * *"

            By way of summary, therefore, we are of the opinion that the filing of the appropriation or location plat referred to in Rem. Rev. Stat., section 8400, is an essential step in the designation of the land and water area which is to be devoted to the public service operations of a boom company.  The entire area desired for such purposes must be included in, and defined by the boundaries of the plat, irrespective of ownership.

             [[Orig. Op. Page 4]]

            We may add that even though the ninety day period referred to in section 8400 has expired, it is our opinion that an organized boom company would still be entitled to file its plat, subject, however, to the rights of any other boom companies which may have accrued in the meantime.  It would appear that the ninety day period is provided to protect the rights of an unplatted boom company conditionally for that time as against the conflicting claims of other boom companies.  If more than ninety days expire before the plat is filed, there is no protection against the intervening rights of other boom companies.

Very truly yours,

SMITH TROY
Attorney General

FRED L. HARLOCKER
Assistant Attorney General