McCarthy v. Bloedel Donovan Lumber Mills, 5933.

• Decision Date: 24 March 1930
• Docket Number: No. 5933.,5933.
• Citation: 39 F.2d 34
• Parties: McCARTHY et al. v. BLOEDEL DONOVAN LUMBER MILLS.
• Court: U.S. Court of Appeals — Ninth Circuit

39 F.2d 34 (1930)

McCARTHY et al. v. BLOEDEL DONOVAN LUMBER MILLS.

No. 5933.

Circuit Court of Appeals, Ninth Circuit.

March 24, 1930.

Joseph McCarthy, of Spokane, Wash., for appellants.

E. S. McCord, Sr., Millard P. Thomas, and Kerr, McCord & Ivey, all of Seattle, Wash., for appellee.

Before DIETRICH and WILBUR, Circuit Judges, and KERRIGAN, District Judge.

DIETRICH, Circuit Judge.

Appellee is the owner of large tracts of timber in Western Washington which it is engaged in logging. For that purpose it constructed and now operates a private logging railroad extending southerly from the seaboard at Clallam Bay to some of its lands. To reach additional holdings it plans to extend this road, and will need a right of way which in part lies across lands belonging to appellants. Not being able to acquire the right by contract, it brought this proceeding in eminent domain. For the background of the issues now submitted, reference may be made to our opinion on a former appeal, Ruddock et al. v. Bloedel Donovan Lumber Mills, 28 F.(2d) 684. Pursuant to our mandate, the court below, after hearings had in compliance with the statutes, entered an order adjudicating use and necessity, and, following a verdict fixing the amount of compensation to be paid, a final decree of appropriation. From this decree three of the four defendants prosecute this appeal.

Aside from the constitutional question ruled by our former decision, in substance the contentions urged by appellants are: (1) That the evidence is insufficient to support a finding of "necessity" for any part of the desired right of way; (2) that particularly no necessity is shown for what is referred to as the "west branch," a spur about two miles in length leading westerly from what may be denominated the main north and south line; (3) that, if appellee is accorded the right to condemn at all, it should be required to locate its road parallel with and contiguous to the right of way of a proposed extension of the road of the Port Angeles Western Railroad Company, a common carrier; and (4) that the decree is erroneous, in that it is so framed as to deny to appellants a part of their statutory right, in case appellee's road is constructed, to require it to transport timber and other products taken from appellants' adjacent lands. There is also an assignment based upon the court's exclusion of a certain letter offered in evidence by appellants as bearing upon the issue of necessity.

The first three specifications are closely interrelated, and in the main all involve the same evidence and call for an application of the same principles of law. Appellee seeks to condemn under authority of chapter 133, p. 412 of the Washington Laws 1913, Remington's Comp. Stat. 1922, §§ 6747-6749. Under the law, admittedly it may take only such a right of way as is "necessary," and the question of necessity is one for the court, to be determined in the light of all the facts. The statute has been construed by the Supreme Court of the state, and by that construction we are bound. The point, however, is not of great importance, for the views of the Washington court are in accord with the doctrine generally prevailing under similar eminent domain statutes. In Samish River Boom Co. v. Union Boom Co., 32 Wash. 586, 73 P. 670, 673, the Washington court said:

"But the word `necessity,' as used in the statute, `does not mean an absolute and unconditional necessity, as determined by physical causes, but a reasonable necessity, under the circumstances of the particular case, dependent upon the practicability of another route (here another location), considered in connection with the relative cost to one, and probable injury to the other.'"

And in State ex rel. Postal Telegraph-Cable Co. v. Superior Court, 64 Wash. 189, 116 P. 855, 857, the court said:

"We believe that the correct construction of this statute is that those invested with the power of eminent domain have the right in the first instance to select the land which, according to their own views, is most expedient for the enterprise, and that it invests the court with the power to determine whether specific land proposed to be taken is necessary in view of the general location, and to finally determine the question of necessity for the taking of such specific land when there is evidence of bad faith, or oppression, or of an abuse of the power in the selection.

"Plainly the selection by the condemnor is evidence of the highest character that the land selected is necessary for the enterprise, and in the absence of clear and convincing evidence to the contrary it conclusively establishes the necessity. * * * The condemnor does not have to show an absolute necessity, but only a reasonable necessity. As we have said the prima facie case made by evidence of the selection can only be overcome by clear and convincing proof that the taking of the specific land sought would be so unnecessary and unreasonable as to be oppressive and an abuse of the power."

In State ex rel. Grays Harbor Logging Co. v. Superior Court, 82 Wash. 503, 144 P. 722, 724, it was said:

"The evidence offered went no further than that the route over the N. ½ of section 31 was feasible, and that the road could be constructed there at a reasonable cost. This fell short of meeting...