Bridal Veil Lumbering Co. v. Johnson

• Decision Date: 09 November 1896
• Citation: 46 P. 790,30 Or. 205
• Parties: BRIDAL VEIL LUMBERING CO. v. JOHNSON.
• Court: Oregon Supreme Court

46 P. 790

30 Or. 205

BRIDAL VEIL LUMBERING CO. v. JOHNSON.

Supreme Court of Oregon

November 9, 1896

Appeal from circuit court, Multnomah county; H. Hurley, Judge.

Condemnation proceedings by the Bridal Veil Lumbering Company against D.S Johnson. There was a judgment for plaintiff, and defendant appeals. Affirmed.

This is an action to condemn a right of way for a railroad. The defense is that plaintiff was organized for the operation of a sawmill for the manufacture of lumber, and the proposed railroad is intended for its own private use and benefit in connection therewith, and not for the ordinary purposes of a railroad for the transportation of freight and passengers and that therefore the use for which the land is required by the plaintiff corporation is not public, so as to justify the exercise in its behalf of the power of eminent domain. The cause was tried without the intervention of a jury, and on July 31, 1892, the court filed its findings of fact and conclusions of law, from which it appears that plaintiff was incorporated in 1889; that by its original and supplementary articles of incorporation one of its purposes is that of constructing and operating a railroad for the transportation of freight and passengers from Bridal Veil, Or., by way of the mill of the Bridal Veil Falls Lumbering Company to the center of section 1, township 2 S., of range 7 E. of the Willamette meridian, near the base of Mt. Hood, in the state of Oregon, both of its terminal points being in Multnomah county; that it was not organized for the sole purpose of operating a sawmill, or for supplying the mill with saw logs or for constructing and maintaining a logging road thereto that a portion of the railroad has already been constructed and so operated and maintained that "the general public have had the use and benefit thereof, for the transportation of freight and passengers, whenever freight was offered or passengers desired to ride"; and that, "so far as completed, it provides means of transportation useful and beneficial to the people living in the section of country in which it is built," and "gives to them and persons having business in that vicinity improved facilities for the transportation of freight not possessed before." From these findings the court concluded, as a matter of law, that the plaintiff was entitled to exercise the power of eminent domain. A short time after they were filed the defendant moved for additional findings of fact, and presented a series of proposed findings, some of which the court adopted. From these it appears that the northern terminus of that portion of plaintiff's road, as located and constructed, is at the sawmill referred to, about two miles from, and at an elevation of 1,300 feet above, the town of Bridal Veil; that no line or route of the proposed road has ever been surveyed, located, or constructed from Bridal Veil to the sawmill; that, as surveyed and constructed, it extends a distance of 5 1/2 miles, to lands owned by plaintiff; that the southeastern terminus of the route, as described in the articles of incorporation, is near the base of Mt. Hood, upon land owned by the government of the United States, and that there is not, at or near thereto, any town, city, or settlement, or other railroad; that the country along such route is rough, mountainous, covered with timber, and sparsely settled, and, except the town of Bridal Veil, there is at no place on the line or in its vicinity any town, city, or thickly-settled neighborhood; that the plaintiff has connected with its railroad no freight or passenger depots, no passenger coaches, and no freight cars, except that it has a number of trucks, on one of which there is a platform, covered in time of rain; and that plaintiff has never carried over its road any...