Apex Transp. Co. v. Garbade

• Decision Date: 21 March 1898
• Parties: APEX TRANSP. CO. v. GARBADE.
• Court: Oregon Supreme Court

52 P. 573

32 Or. 582

APEX TRANSP. CO. v. GARBADE.

Supreme Court of Oregon

March 21, 1898

Appeal from circuit court, Multnomah county; Henry E. McGinn, Judge.

Action by the Apex Transportation Company against T.A. Garbade. Judgment for plaintiff, and defendant appeals. Reversed.

Frank Schlagel, for appellant.

Joseph Simon and R.R. Duniway, for respondent.

BEAN J.

The Apex Transportation Company, a corporation organized for the construction of a skid road (Laws 1895, p. 6), brought this action against the defendant to condemn for its corporate use a right of way over certain lands belonging to him. The right to the relief demanded was controverted on the ground, among others, that the use for which the land sought to be condemned was required by the corporation was not a public but a private, use. This question was raised by motion for a nonsuit, and also by a request for an instruction to the jury. The statute under which the action was brought (Laws 1895, p. 6), so far as material to this question, provides that "any corporation organized for the purpose *** of transporting timber, lumber, or cordwood *** shall have the right to construct and operate railroads, skidroads tramways, chutes and flumes between such points as may be indicated in their articles of incorporation, and shall have a right to enter upon any land between such points for the purpose of examining, locating and surveying the line of such railroads, skidroads, tramways, chutes and flumes, *** and shall have power to appropriate so much of said land as may be necessary for the same, not exceeding sixty feet in width and may maintain an action for the appropriation thereof in the manner and form as by law provided by any railway, *** and with like effect"; and that "all such *** skidroads, tramways, chutes and flumes shall be deemed to be for the public benefit, *** and shall afford to all persons equal facilities in the use thereof for the purposes to which they are adapted, upon payment or tender of reasonable compensation for such use." The articles of incorporation of the plaintiff declare that it is organized for the purpose of transporting logs, timber, lumber cordwood, etc., by means of a skid road from a certain log pond, in section 24, township 1 N., range 5 E., in a southeasterly direction to the center of section 27, township 1 N., range 6 E., a distance of about four or five miles. At the time action was commenced, it owned and had in operation such a road for a short distance from the log pond referred to; but the route of the principal part of its proposed road had not been surveyed or located or indeed definitely determined. The road built and proposed to be constructed is the ordinary logging dirt road, with timbers from eight to twenty inches in diameter laid crosswise, at intervals of seven or eight feet, and imbedded in the earth so that two or three inches project above the surface, thus forming a track or way upon which logs or heavy timbers may be more readily drawn by logging teams than upon the ground.

The facts and circumstances from which to determine the nature of the use to which the plaintiff proposes to put the land sought to be taken are practically undisputed, and we feel constrained to say that, in our judgment, they do not show such a use as would authorize the taking of private property without the consent of the owner. It appears...