McCullough v. Interstate Power & Light Co.

• Decision Date: 16 June 1931
• Docket Number: 23100.
• Court: Washington Supreme Court
• Parties: McCULLOUGH et ux. v. INTERSTATE POWER & LIGHT CO.

300 P. 165

163 Wash. 147

McCULLOUGH et ux. v. INTERSTATE POWER & LIGHT CO.

No. 23100.

Supreme Court of Washington

June 16, 1931

Department 1.

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by William A. McCullough and wife against the Interstate Power & Light Company. From a judgment of dismissal plaintiffs appeal.

Affirmed.

Earl V Clifford, of Tacoma, for appellants.

Palmer Askren & Brethorst, of Seattle, for respondent.

MAIN J.

This action was brought to enjoin the defendant from erecting a high-tension power line consisting of poles and wires along the side of a highway, on either side of which the plaintiffs own the abutting land. The cause was tried to the court without a jury, and resulted in a judgment dismissing the action, from which the plaintiffs appeal.

By deed dated April 12, 1909, the appellants conveyed a strip sixty feet wide through the land which they then owned, and which they now own, as a 'right of way for a road.' In a subsequent clause in the same instrument, the road was referred to as 'said right of way.' The road referred to is a section of the Mountain Highway extending from the city of Tacoma to the entrance to Rainier National Park. Since the right of way was conveyed by the appellants, the road has been improved and paved. The portion of the road in question is two or three miles to the west of the entrance to the park.

The respondent Interstate Power & Light Company is a public service corporation engaged in the business of furnishing electric energy to the public for light, heat, and power purposes. Its rates and service are controlled by the state department of public works, and, before beginning the construction of the power line to which the appellants object, it had obtained from the proper state officer a franchise so to do. The respondent desires to construct the line in order that it may furnish light, heat, and power to be used in Rainier National Park, and also to those persons living outside of the park and adjacent to the line.

As stated in the appellants' brief, the 'basic primary question in this case is whether the power line in question is a burden not included in the easement which the appellants granted.'

In this state the transmission of electric energy over a power line in a city street for the purpose of furnishing light, heat and power to the public does not create an added burden for which the abutting property owner is entitled to compensation. Brandt v. Spokane & Inland Empire R. Co., 78 Wash. 214, 138 P. 871, 52 L. R. A. (N. S.) 760; Bradley v. Spokane & Inland Empire R. Co., 79 Wash. 455, 140 P. 688, L. R. A. 1917C, 225. The question, then, arises whether the same rule should be applied to a highway through a rural community as is applied to a city street. It has become a settled rule in this state that the production of electrial energy for the purpose of furnishing light, heat, and power is a public use. State ex rel. Chelan Electric Co. v. Superior Court, 142 Wash. 270, 253 P. 115, 58 A. L. R. 779; Brady v. Tacoma, 145 Wash. 351, 259 P. 1089; Chelan Electric Co. v. Perry, 148 Wash. 353, 268 P. 1040. The easement acquired by the public in a highway includes every reasonable means for the transmission of intelligence, the conveyance of persons, and the transportation of commodities which the advance of civilization may render suitable for a highway. In Commonwealth v. Morrison, 197 Mass. 199, 83 N.E. 415, 416, 14 L. R. A. (N. S.) 194, 125 Am. St. Rep. 338, it is said: 'The public acquire by the location of a highway an easement of passage, with all the powers and privileges, which are necessarily implies...