Carstens v. Public Utility Dist. No. 1 of Lincoln County

• Decision Date: 25 March 1941
• Docket Number: 28236.
• Citation: 8 Wn.2d 136,111 P.2d 583
• Parties: CARSTENS et al. v. PUBLIC UTILITY DIST. NO. 1 OF LINCOLN COUNTY et al.
• Court: Washington Supreme Court

111 P.2d 583

8 Wn.2d 136

CARSTENS et al. v. PUBLIC UTILITY DIST. NO. 1 OF LINCOLN COUNTY et al.

No. 28236.

Supreme Court of Washington

March 25, 1941

Department 2.

Action by A. C. Carstens and others against Public Utility District No. 1 of Lincoln County and others, to restrain and enjoin the prosecution of eminent domain proceedings. From a judgment for plaintiffs, defendants appeal.

Judgment reversed, with instructions.

Appeal from Superior Court, Lincoln County; Fred H. Witt, judge.

Underwood & Campbell, of Davenport, Houghton Cluck & Coughlin, of Seattle, and E. K. Murray, of Tacoma for appellants.

Post Russell, Davis & Paine and H. E. T. Herman, all of Spokane, for respondents.

SIMPSON Justice.

Involved in this appeal is the right of the public utility district of Lincoln county to take by eminent domain proceedings properties belonging to The Washington Water Power Company which are situated in Lincoln, Grant and Spokane counties.

On or about December 20, 1939, the commissioners of Public Utility District No. 1 of Lincoln County passed a resolution to acquire by purchase or condemnation properties of plaintiff corporation which were situated in Lincoln county, together with distribution lines located in Grant and Spokane counties. Thereafter, the commissioners caused to be instituted in the superior court of Lincoln county a proceeding in eminent domain, by which they sought condemnation of the properties to which we have just referred. Subsequently, the plaintiffs brought this action to restrain and enjoin the prosecution of the eminent domain proceedings.

By virtue of a stipulation entered into by counsel for the respective parties, a trial was had in which the court considered this case and the application for entry of a decree of public use and necessity in the eminent domain case.

After the trial had been concluded, the court entered its decree to the effect that the defendants did not have the right to acquire the franchises of the company or the properties of the company which were located in Grant and Spokane counties. An injunction was issued which prohibited defendants from proceeding to condemn the franchises of the company or its property in Grant and Spokane counties. Defendants appealed.

The assignments of error are (1) in refusing to dismiss the complaint, and (2) in entering its decree restraining petitioner from acquiring properties of the company located in Grant and Spokane counties.

The record discloses the following facts: Respondent company owns the property sought to be acquired. Respondent A. C. Carstens, Thomas A. Landreth and V. R. Hyslop are citizens, voters, residents and taxpayers of Spokane county. Respondent H. H. Higgins is a citizen, resident, voter and taxpayer of Grant county. Appellants John Lome, Louis Schultz and A. H. Reilly are the commissioners of public Utility District No. 1 of Lincoln county.

Included in the property sought to be acquired is a 600,000 volt transmission line extending from Coulee City in Grant county to Almira in Lincoln county. Approximately seventeen miles of this transmission line is located in Grant county west of the Grant-Lincoln county boundary line. No substations are located on the transmission line in Grant county. The first substation on the transmission line is located at Almira in Lincoln county at the end of a transmission line. No objections to the taking of this line were made by respondent company. At the substation located at Almira electricity is transformed for distribution purposes. A number of distribution lines extend from the Almira substation and serve the town of Almira and some rural areas. Two of these lines extend westerly from Almira into Grant county and serve the town of Hartline and some rural areas adjacent thereto. There is a total of approximately ten miles of distribution line located in Grant county. From this line the respondent company sells electricity to about one hundred thirty eight customers, which produced a gross revenue in 1939 of five thousand dollars. The cost of the distribution line is from $1,500 to $2,000 per mile. The distribution lines are not otherwise connected with other lines in Grant county and if they were not taken by the district it would be necessary to construct about ten miles of new line to connect it with the existing system of the respondent company at Coulee City in Grant county.

Also included in the property sought to be acquired by the district was a substation at Davenport in Lincoln county at which electricity is transformed for distribution purposes. Several distribution lines extend from that substation and serve the city of Davenport, the town of Reardan, and the rural communities. One of these lines extends easterly from Davenport through Reardan, and from there into a small rural portion of western Spokane county. There is a total of fifteen to twenty miles of distribution lines located in Spokane county. From these lines respondent company sells electricity to eighty-four customers, producing an annual gross revenue of about four thousand dollars. These lines are not connected with other distribution lines in Spokane county, and if they are not taken by the district, it will be necessary to construct three miles of the new line to connect with the existing system of respondent company at a place near Medical Lake in Spokane county.

Transmission lines are such lines as carry a high voltage electrical current to substations where the voltage is reduced so that it may be conducted to the distribution lines. Distribution lines carry the voltage from the transformers to the place where the current is consumed by the customers.

In this case we are not concerned with the question relative to the condemnation of the transmission lines, for the reason that the respondents admit the right of the public utility district to exercise the power of eminent domain for the purpose of condemning transmission lines outside of the territorial limits of the district, if the transmission lines are necessary to bring electric current to the system of distribution lines situated within the territorial limits of the public utility district. There is no contention in the instant case that any of the transmission lines sought to be condemned by appellants would not be put to a public use or that it was not necessary to condemn the transmission lines sought by appellants.

The purpose of the act is stated in Rem.Rev.Stat. § 11605, as follows: 'The purpose of this act is to authorize the establishment of public utility districts to conserve the water and power resources of the State of Washington for the benefit of the people thereof, and to supply public utility service, including water and electricity for all uses.'

In discussing the questions presented in this case, we have in mind that: 'The rule of strict construction shall have no application to this act, but the same shall be liberally construed, in order to carry out the purposes and objects for which this act is intended.' Rem.Rev.Stat. § 11615.

Appellants contend that the acquisition of extraterritorial properties is expressly authorized by the public utility act, Rem.Rev.Stat. § 11610(d), and should therefore be allowed. The act gives the districts the following power: 'To purchase, within or without its limits, electric current for sale and distribution within or without its limits, and to construct, condemn and purchase, purchase, acquire, add to, maintain, conduct and operate works, plants, transmission and distribution lines and facilities for generating electric current, operated either by water power, steam or other methods, within or without its limits, for the purpose of furnishing said public utility district, and the inhabitants thereof and any other person, including public and private corporations, within or without its limits, with electric current for all uses, * * *.' (Italics ours.)

Respondents, on the other hand, contend that no public use would be served by appellants' acquisition of the distribution lines in Grant and Spokane counties, and that no necessity can be found for a condemnation of those distribution lines.

The question of whether or not a use is a public use is a judicial one, of course, under the provisions of Amendment IX of our state constitution.

However, the determinations of public use by the state or its agencies are entitled to great respect by the courts, since they relate to matters which should and must have been known to the legislature. New York City Housing Authority v. Muller, 270 N.Y. 333, 1 N.E.2d 153, 105 A.L.R. 905. The same approach should be used where, as here, the people of the state have determined the existence of a public use by an initiative vote.

The term 'public use' is one which has been examined innumerable times by the courts, but no concise, clear definition thereof has emerged from the mass of judicial language devoted to the subject. Perhaps the best approach to the question is to be found in the following passage from Dornan v. Philadelphia Housing Authority, 331 Pa 209, 200 A. 834, 840: 'On the whole, although the cases on this subject in Pennsylvania have been comparatively few in number, it may fairly be stated that, while firmly maintaining the principle that private property cannot be taken by government for other than a public use, they justify the conclusion that judicial interpretation of 'public use' has not been circumscribed in our State by mere legalistic formulas or phiological standards. On the contrary, definition has been left, as indeed it must be, to the varying circumstances and situations which arise, with special reference to the social and economic background of the period in which the particular problem presents...