Clute v. North Yakima & V. Ry. Co.

• Decision Date: 23 March 1911
• Court: Washington Supreme Court
• Parties: CLUTE et ux. v. NORTH YAKIMA & V. RY. CO.

114 P. 513

62 Wash. 531

CLUTE et ux. v. NORTH YAKIMA & V. RY. CO.

Supreme Court of Washington

March 23, 1911

Department 2. Appeal from Superior Court, Yakima County; Ralph Kauffman Judge.

Action by G. S. Clute and another against the North Yakima & Valley Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded, with instruction to dismiss.

Englehart & Rigg, for appellant.

Snyder & Hatfield, for respondents.

MORRIS J.

On May 6, 1909, the parties hereto entered into an agreement whereby respondents sold to appellant lot 3, block 15, town of Zillah, for $2,600, for railway purposes.

As part of this consideration the appellant agreed to convey to respondents lot 12, block 22, town of Zillah, and to pay the balance within 60 days, the respondents within the same time to remove the building from lot 3, which they occupied as a general merchandise store. The appellant thereafter conveyed lot 12, and paid the balance of the consideration to respondents, and respondents gave the company a deed to lot 3, and moved the store building to lot 12. The appellant commenced the construction of its road along its contemplated line across Yakima avenue, blocks 15 and 16 as shown on the following diagram:

(Image Omitted)

And while so engaged and before any operation or use of the same appellee commenced this action to enjoin such construction or operation. The only reference that need be made to the complaint is to say it was brought upon the theory that the construction and operation of the road would cause respondents damage in various suggested ways; the admitted purpose of the action being to compel the company to institute condemnation proceedings, in which such damage might be ascertained and paid before it could further proceed in the building of the road. The court below granted the relief prayed for, and the company appeals.

The only question raised on the appeal being the necessity of condemnation proceedings under the situation here shown, it will not be necessary to refer to the evidence touching respondents' claim of damage since the case must stand or fall upon the right to compel the railway company to condemn. It will be noted that lot 12, block 22, the present location of respondents' store, is not abutting upon the right of way of the railway company, and that the railway is being constructed upon land purchased by it for railway purposes except where it crosses Yakima avenue which latter right it exercises...