49 Wn.2d 442, THE STATE OF WASHINGTON, Petitioner, v. JACK C. HATCHARD et al., Respondents, EDWARD GACEK et al., Respondents and Relators, THE SUPERIOR COURT FOR PACIFIC COUNTY, Warner Poyhonen, Judge, Respondent

[No. 34002. Department Two.      Supreme Court      October 23, 1956.]

THE STATE OF WASHINGTON, Petitioner, v. JACK C. HATCHARD
           et al., Respondents, EDWARD GACEK et al., Respondents
                and Relators, THE SUPERIOR COURT FOR PACIFIC
                COUNTY, Warner Poyhonen, Judge, Respondent.1

[1] EMINENT DOMAIN - PROCEEDINGS TO TAKE PROPERTY - PUBLIC USE - EVIDENCE - SUFFICIENCY. In a proceeding by the state to condemn property for highway purposes, testimony of a state highway engineer that the use of the property was necessary to rectify a slide condition on a state highway met the required test that the use is really a public use, that the public interest requires it, and that the property appropriated is necessary for that purpose.

[2] SAME - PUBLIC USE - ADMINISTRATIVE DETERMINATION - ARBITRARY ACTION. In such a proceeding, questions of policy for determination by the administrative agency are raised by allegations that the proposed action will not remedy the slide condition but at most only prevent it from worsening, its real purpose is to remove the pressure of the slide from a water main, and the present road will probably be abandoned in two or three years; and in the absence of fraud or bad faith, such facts, if true, do not lead to the conclusion that the action of the highway department is arbitrary.

1 Reported in 302 P. (2d) 478.

[1] See 54 A. L. R. 7; 18 Am. Jur. 657 et seq.

 Oct. 1956]               STATE v. HATCHARD      443

[3] SAME - CONDITIONS PRECEDENT - BONA FIDE OFFER. Under Laws of 1955, chapter 156, 6, amending RCW 8.04.010, allegation and proof that a bona fide offer has been made to the property owner are no longer conditions precedent to the maintenance of a condemnation action.

Certiorari to review an order of the superior court for Pacific county, No. 13185, Poyhonen, J., entered September 13, 1956, in condemnation proceedings, adjudicating public use. Affirmed.

Fred M. Bond and James E. Duree, for respondents and relators.

The Attorney General and Newell Smith, Assistant, for petitioner.

WEAVER, J. -

The state of Washington commenced this eminent domain proceeding to acquire approximately one and seven-tenths acres of land owned by relators. It is alleged that the acquisition of this land is necessary for a public use-"the construction, maintenance and operation of public highways."

After trial, the court entered an order adjudicating public use. Relators seek a review of this order by writ of certiorari. Their three assignments of error present two questions: is there sufficient evidence to warrant the trial court's order of public use, and is the action of the highway department arbitrary?

The state presented in evidence a highway map, certified by the state director of highways that it represented the area selected for highway purposes and that he

". . . authorized and directed the institution of condemnation proceedings to secure the necessary rights of way for said highway so located and selected."

[1] The district construction engineer of the state highway department testified that a portion of primary state highway No. 13, which abuts relators' property, "has been sliding out for a number of years"; that the slide has taken the shoulder of the highway and part of the pavement; that a shear log has been in place along the roadway for the

 444    STATE v. HATCHARD.     [49 Wn. (2d)

past two years to protect traffic; that any further movement of the bank will increase the danger to traffic; that, by building an embankment along the toe of the slide, a counterbalance will be established which will prevent further movement of the slide area; that use of the described portion of relators' property is necessary in order to thus protect the existing condition of the highway.

This meets the required test (1) that the use is really a public use; (2) that the public interest requires it; and (3)that the property appropriated is necessary for the purpose. State ex rel. Bremerton Bridge Co. v. Superior Court, 194 Wash. 7, 18, 76 P. (2d) 990 (1938), and cases cited.

[2] Relators argue that the action of the highway department is arbitrary, because (1) it will not remedy the dangerous condition of the highway but, at most, only prevent it from worsening; (2) the real purpose of the "counterbalance" is to remove the pressure of the slide from a water main which crosses the slide area (this is denied); and (3)the present road will probably be abandoned in two or three years when a new highway is constructed. We do not agree.

These facts, if true, raise questions of policy for determination by the administrative agency. In the absence of proof of fraud or bad faith, they do not lead to the conclusion that the action of the highway department is arbitrary.

[3] We find no merit in relators' argument that the order of public use should be reversed, because the state did not allege and prove that a bona fide offer had been made to the property owner as a condition precedent to maintaining an action of eminent domain. RCW 8.04.010, which required that this be done, was amended by Laws of 1955, chapter 156, 6, p. 682; RCW (Sup. 1955) 8.04.010. This requirement was omitted, and such allegation and proof are no longer conditions precedent to the maintenance of a condemnation action.

The order of public use is affirmed.
DONWORTH, C.J., MALLERY, HILL, and ROSELLINI, JJ., concur.