State ex rel. Oregon-Washington R. & Nav. Co. v. Walla Walla County

• Decision Date: 09 August 1940
• Docket Number: 27813.
• Citation: 5 Wn.2d 95,104 P.2d 764
• Court: Washington Supreme Court
• Parties: STATE ex rel. OREGON-WASHINGTON R. & NAV. CO. et al. v. WALLA WALLA COUNTY et al.

104 P.2d 764

5 Wn.2d 95

STATE ex rel. OREGON-WASHINGTON R. & NAV. CO. et al. v. WALLA WALLA COUNTY et al.

No. 27813.

Supreme Court of Washington

August 9, 1940

Department 2.

Proceeding by the State of Washington, on the relation of the Oregon-Washington Railroad & Navigation Company, and another against Walla Walla County, H. H. Hanson and others, as County Commissioners of said Walla Walla County, and the Department of Public Service of Washington, and others for writ of review of findings and an order of the Department of Public Service granting a petition by the Commissioners of Walla Walla County asking the Department's consent to the construction and maintenance of a grade crossing over the main line of a railroad. From a judgment affirming the departmental order, the State of Washington, on the relation of the Oregon-Washington Railroad & Navigation Company and another appeal.

Affirmed.

Appeal from Superior Court, Walla Walla County Timothy A. Paul, judge.

Roy F Shields and L. W. Hobbs, both of Portland, Or., Hamblen Gilbert & Brooke, of Spokane, and Hayden, Merritt, Summers & Bucey, of Seattle, for appellants.

G. W. Hamilton, Atty.Gen., and Don Cary Smith and Will M. Derig, both of Olympia, for respondent Department of Public Service.

Glenn L. Bean and Cameron Sherwood, both of Walla Walla, for other respondents.

BEALS Justice.

During the month of June, 1938, the commissioners of Walla Walla county filed with the Department of Public Service their petition asking the department's consent to the construction and maintenance of a grade crossing over the main line of railroad of the Oregon-Washington Railroad & Navigation Company (hereinafter referred to as the company), the track being under lease to Union Pacific Railroad Company, for the 'Port Kelly road,' a highway which it was proposed to construct. In the petition it was alleged that the company's railroad is a common carrier; that the estimated traffic thereon amounted to six trains per day; that neither an over nor under crossing was justified because of the expense. The company and its lessee appeared Before the department, denying the material allegations of the petition, alleging the hazard of a grade crossing, and asking that the petition be denied. Walla Walla Grain Growers, Inc., a corporation (hereinafter referred to as Grain Growers), petitioned the department that leave be granted to establish the grade crossing, in accordance with the plan of the commissioners. The company answered the Grain Growers' petition, asking that the same be stricken, and also denying the material allegations thereof.

The matter came on for hearing, and after the introduction of considerable evidence, the department, September 3, 1938, filed its findings of fact and an order granting the petition of the commissioners for the establishment of a crossing at grade. The departmental order provided that if future conditions warranted, the case might be reopened for the purpose of considering the establishment of a subsurface or overcrossing.

The company and its lessee filed in the superior court for Walla Walla county their petition for writ of review of the findings and order. The matter was thereafter submitted to the court upon the record, supplemented by oral and written argument. The trial court overruled the objections of the railroads, and entered a judgment affirming the departmental order. From this judgment, the railroads have appealed.

Error is assigned upon the overruling of appellants' objections to several findings of fact made by the department, appellants also contending that the court erred in overruling their objections to the departmental order granting the application of the county commissioners; upon the overruling of appellants' objection to that portion of the departmental order which provides that the matter may, in the future, be reopened for the purpose of considering the establishment of a crossing other than at grade. Finally, appellants contend that the trial court erred in overruling their objections to the departmental findings and order considered as a whole, and in entering judgment affirming the same.

Rem.Rev.Stat. § 10512, reads in part as follows: 'All highways and extensions of highways hereafter laid out and constructed shall cross existing railroads by passing either over or under the same, when practicable, and shall in no instance cross any railroad at grade without authority first being obtained from the commission to do so.'

Among the definitions contained in § 10511, it is provided that the word highway includes '* * * all state and county roads, streets, alleys, avenues, boulevards, parkways, and other public places actually open and in use, or to be opened and used, for travel by the public,' while the term grade crossing is defined as '* * * any point or place where a railroad crosses a highway or a highway crosses a railroad or one railroad crosses another, at a common grade.'

By Rem.Rev.Stat. (Sup.) § 10513, it is provided that county commissioners desiring to construct a highway across any railroad at grade, shall file with the commission a petition stating the reasons why the crossing cannot be either above or below grade, and that if after a hearing it appears that a grade separation is not practicable, a grade crossing may be authorized.

In the first place, appellants contend that from the evidence it appears that the proposed highway will not be a public highway, but will constitute nothing more nor less than a private roadway leading from a state highway to a privately owned and operated warehouse. It is, of course, true that the county may not, at public expense, construct what is no more than a private road. Grain Growers is a co-operative association, owning land on the Columbia river, and extending across the railroad to a state highway which parallels the railroad, and from which the new highway will extend to or very near the river. The railroad right-of-way runs through this tract of land. A grain warehouse or elevator has been constructed on the river, it being proposed to haul grain to the building by truck, and from the elevator load the grain on boats for further transportation by water. The proposed highway will be approximately eleven hundred feet long, about one-fifth being across the railroad right-of-way. Grain Growers has offered to donate the right-of-way across its land, the road, of course, to lead to its warehouse.

The proceedings leading up to the establishment of the road by the county commissioners appear to be entirely regular. Testimony Before the department was introduced to the effect that considerable demand existed on the part of the public at large for the establishment of the road. If established, the road will be open to the public, and may be used by anyone. It also appears probable that during the immediate future, the road will be used largely by trucks carrying grain to the warehouse.

Supplementing the statutory definition of the word highway, the following definitions are of interest:

'A highway is a way open to the public at large, for travel or transportation, without distinction, discrimination, or restriction, except such as is incident to regulations calculated to secure to the general public the largest practical benefit therefrom and enjoyment thereof. Its prime essentials are the right of common enjoyment on the one hand and the duty of public maintenance on the other. It is the right of travel by all the world, and not the exercise of the right, which constitutes a way a public highway, and the actual amount of travel upon it is not material. If it is open to all who desire to use it, it is a public highway although it may accommodate only a limited portion of the public or even a single family or although it accommodates some individuals more than others.' 25 Am.Jur. 339, § 2.

'Highways are public ways as contradistinguished from private ways. The distinguishing mark of a highway is that it must be opened generally to public use, as expressed in the English books, 'common to all the king's subjects,' although it is the right to travel upon a highway by all the world and not the exercise of the right which makes the way a

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