Ruddock v. Bloedel Donovan Lumber Mills

• Decision Date: 22 October 1928
• Docket Number: No. 5544.,5544.
• Citation: 28 F.2d 684
• Parties: RUDDOCK et al. v. BLOEDEL DONOVAN LUMBER MILLS.
• Court: U.S. Court of Appeals — Ninth Circuit

28 F.2d 684 (1928)

RUDDOCK et al. v. BLOEDEL DONOVAN LUMBER MILLS.^*

No. 5544.

Circuit Court of Appeals, Ninth Circuit.

October 22, 1928.

Joseph McCarthy, of Spokane, Wash., and Raymond D. Ogden, of Seattle, Wash., for appellants.

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

Before RUDKIN, DIETRICH, and HUNT, Circuit Judges.

RUDKIN, Circuit Judge.

The laws of the state of Washington provide that any owner of land which is so situated with respect to the land of another that it is necessary for its proper use and enjoyment to have and maintain a private way of necessity, or to construct and maintain any drain, flume, or ditch, on, across, over, or through the land of such other, for agricultural, domestic, or sanitary purposes, may condemn and take lands of such other sufficient in area for the construction and maintenance of such drain, flume, or ditch, as the case may be, and that the term "private way of necessity," as used in the act, shall mean and include a right of way on, across, over, or through the land of another, for means of ingress and egress, and the construction and maintenance thereon of roads, logging roads, flumes, canals, ditches, tunnels, tramways, and other structures upon, over, and through which timber, stone, minerals, or other valuable materials and products may be transported and carried. The act further provides that the procedure for the condemnation of lands for a private way of necessity, or for drains, flumes, or ditches, shall be the same as that provided for the condemnation of private property by railroad companies; that any person or corporation availing themselves of the provisions of the act for the purpose of acquiring a right of way for a logging road, as a condition precedent, contract and agree to carry and convey over such roads to either termini thereof any of the timber or other produce of the lands through which such right is acquired at any and all times, so long as said road is maintained and operated at reasonable prices, that a failure so to do shall terminate such right of way, and that the reasonableness of the rate shall be subject to determination by the public service commission. Laws 1913, p. 412.

The Bloedel Donovan Lumber Mills, a corporation, owning several thousand acres of timber land in Clallam county, in that state, filed its petition in the superior court of the county for the condemnation of a right of way over certain lands owned by C. H. Ruddock and others. The proceeding was removed into the District Court of the United States for the Western District of Washington on the petition of the defendants, or landowners, on the ground of a diversity of citizenship. After removal the court below entered the customary order of necessity, under the local practice, and impaneled a jury to assess the damages. The jury returned a verdict assessing damages, and a judgment or decree of appropriation was entered thereon. From that judgment or decree the present appeal is prosecuted.

The appellants earnestly insist that the Washington statute authorizes the taking of private property for a private use, and violates the Fourteenth Amendment to the Constitution of the United States. The validity of the statute has been upheld by the Supreme Court of the state in State ex rel. Mountain Timber Co. v. Superior Ct., 77 Wash. 585, 137 P. 994; State ex rel. Grays Harbor Logging Co. v. Superior Ct., 82 Wash. 503, 144 P. 722; State ex rel. Eastern Ry. & Lumber Co. v. Superior Ct., 127 Wash. 30, 219 P. 857; State ex rel. White Pine Sash Co. v. Superior Ct., 143 Wash. 687, 255 P. 1025; State ex rel. Woodruff v. Superior Ct., 145 Wash. 129, 259 P. 379; and it is perhaps needless to say that the construction thus placed on the Constitution and laws of the state by the highest court of the state is controlling on this court. Bucher v. Cheshire R. Co., 125 U. S. 555, 8 S. Ct. 974, 31 L. Ed. 795. Not so, however, as to the federal question involved. Thus, in Grays Harbor Logging Co. v. Coats-Fordney Logging Co., 243 U. S. 251, 37 S. Ct. 295, 61 L. Ed. 702, a writ of error was sued before final judgment to review the judgment in State ex rel. Grays Harbor Logging Co. v. Superior Ct., supra, and in dismissing the writ for that reason, the court said:

"When the litigation in the state courts is brought to a conclusion, the case may be brought here upon the federal questions already raised as well as any that may be raised hereafter; for although the state courts, in the proceedings still to be taken, presumably will feel themselves bound by the decision heretofore made by the Supreme Court (State ex rel. Grays Harbor Logging Co. v. Superior Ct. 82 Wash. 503 144 P. 722) as laying down the law of the case, this court will not be thus bound."

The briefs in this case discuss the right to condemn private property in the exercise of the power of eminent domain in nearly all its aspects, but for reasons hereinafter stated we deem it unnecessary to discuss or consider that broad question. We might say in this connection, however, that counsel for the appellee have cited no case outside the state of Washington upholding the right to take private property for a private logging road, and we have discovered none. The earlier decisions in that state are to the contrary. On the other hand, counsel for the appellants have cited cases from many of the state courts holding that private property cannot be taken for that purpose. Paine v. Savage, 126 Me. 121, 136 A. 664, 51 A. L. R. 1194; Anderson v. Smith-Powers Logging Co., 71 Or. 276, 139 P. 736, L. R. A. 1916B, 1089; Cozard v. Kanawha Hardwood Co., 139 N. C. 283, 51 S. E. 932, 1 L. R. A. (N. S.) 969, 111 Am. St. Rep. 779; Hench v. Pritt, 62 W. Va. 270, 57 S. E. 808, 125 Am. St. Rep. 966; Gauley & S. R. Co. v. Vencill, 73 W. Va. 650, 80 S. E. 1103; Boyd v. C. C. Ritter Lumber Co., 119 Va. 348, 89 S. E. 273, L. R. A. 1917A, 94. Many other state cases have been cited, holding that private property cannot be taken for kindred private purposes, and it will readily be conceded that such is the great weight of authority in this country. Some of the decisions to which we have referred are based on local constitutional provisions and some on much broader grounds. But the only question with which we are now concerned is the single one: Does the Washington statute as construed by its highest court violate the Fourteenth Amendment to the Constitution, and in the consideration of that question we are, of course, controlled by the decisions of the Supreme Court of the United States.

In Clark v. Nash, 198 U. S. 361, 25 S. Ct....