State ex rel. Polson Logging Co. v. Superior Court for Grays Harbor County

• Decision Date: 04 December 1941
• Docket Number: 28584.
• Citation: State ex rel. Polson Logging Co. v. Superior Court for Grays Harbor County, 119 P.2d 694, 11 Wn.2d 545 (Wash. 1941)
• Parties: STATE ex rel. POLSON LOGGING CO. v. SUPERIOR COURT FOR GRAYS HARBOR COUNTY et al.
• Court: Washington Supreme Court

119 P.2d 694

11 Wn.2d 545

STATE ex rel. POLSON LOGGING CO. v. SUPERIOR COURT FOR GRAYS HARBOR COUNTY et al.

No. 28584.

Supreme Court of Washington

December 4, 1941

Department 1.

Original action by the State of Washington, on the relation of the Polson Logging Company, on a petition for a writ of certiorari against the Superior Court of the State of Washington for Grays Harbor County, E. D. Hodge, Judge, and others, to review an order of necessity entered by that court in an eminent domain proceeding.

Order modified and as modified affirmed, and cause directed to be set down for trial for assessment of damages.

L. B. Donley, of Aberdeen, and Metzger, Blair &amp Gardner, of Tacoma, for relator.

W. H Abel, of Montesano, John T. Welsh, of South Bend, John D Ehrhart, of Hoquiam, and Gladys Phillips, of Aberdeen, for respondents.

MILLARD, Justice.

Under section 16, Art. I, of the state constitution, as amended Amendment 9, and implementing statute, Rem.Rev.Stat. § 936-1 et seq., Laws of 1913, chapter 133, M. & D. Timber Company, a domestic corporation engaged in general logging business, filed a petition in the superior court for Grays Harbor county to acquire, through the exercise of eminent domain, a private way of necessity for a period of three years for a truck logging road over the logging railroad grade and right of way of Polson Logging Company, a domestic corporation, located on the latter's land and on state owner land.

The purpose for which the private way of necessity is sought is to give to the petitioner access to certain timber in township 21 north, range 9 west, W. M. The right of way sought is a strip of land fifteen feet on either side of the center line of the entire ten-mile length of a logging railroad grade constructed and maintained by Polson Logging Company across its own lands and across section 16, which is owned by the state of Washington.

A logging railroad built by Polson Logging Company in the area involved in this action was extended from time to time as logging conditions justified and was operated as a logging railroad continuously from 1913 to 1937 or 1938. The timber holdings of Polson Logging Company were exhausted in this area between 1937 and 1939 during which years Polson Logging Company removed the steel rails and ties from its logging railroad grade; and used the rails in construction of a logging railroad in another portion of its holdings.

Polson Logging Company applied October 26, 1939, to the state commissioner of public lands for renewal of its agreement with the state for easement over and across section 16. November 14, 1939, the chief engineer in the office of the commissioner of public lands reported on that application for renewal of a right of way for a logging road over section 16 that the applicant had held that right of way for a term of fifteen years, since August 16, 1923, under a certificate granted by the state; that, as the certificate expired August 16, 1938, the new certificate should date therefrom; and that the applicant stated there were no improvements nor merchantable timber on the right of way and that the steel and ties were removed a few years previously but that there may be a possibility of removal of some odd lots of timber remaining in that area.

The right of way easement was granted for an additional period of ten years, expiring August 16, 1948, subject to forfeiture if use of the right of way for the purpose for which it was granted ceased for a period of two years.

In one letter, which is a part of the records of the state land commissioner in the matter of this application for renewal of agreement for easement across section 16, Polson Logging Company informed the commissioner that the company had completed its logging operations.

'in this area and the steel and ties have been removed from the grade, although there is a chance that they may use this road for the removal of some odd lots of timber remaining in the area at some future date.'

The letter dated October 27, 1939, from Polson Logging Company to the state land commissioner with other evidence in the record establishes the fact that Polson Logging Company had no intention of using the grade for a logging railroad but that, possibly, at some distant date Polson Logging Company might have use for the right of way for a truck road. That letter reads as follows:

'Enclosed herewith is the application for right of way over state lands which was formerly held by this company for a logging R. R., prior to the completion of its logging in this locality.

'As the writer stated yesterday the steel and ties were removed a few years back and the line abandoned, but we now feel that there may be a possibility the company at some time may have use for this grade as a truck road for removing some small odd lots of their timber yet remaining in this section.'

In 1939, A. M. Abel, to whose rights M. & D. Timber Company succeeded, obtained written permission from Polson Logging Company to transport by truck over and across a portion of the railroad grade involved herein the timber from his lands, which license was limited to a period of three years expiring February 17, 1942.

M. & D. Timber Company purchased certain other land, known as the Aberdeen Timber Company tract, in township 21.

Polson Logging Company granted to M. & D. Timber Company April 9, 1941, to transport the timber from that tract over Polson Logging Company's railroad grade, which permission expired June 1, 1941. Subsequent to April 9, 1941, M. & D. Timber Company acquired from Milwaukee Land Company and from the forestry service of the United States certain other timber lands in township 21.

The purpose of the condemnation sought is to give to M. & D. Timber Company the right to transport by truck timber from all of its tracts over the railroad grade of Polson Logging Company from its terminus in section 11, township 21 north, range 9 west, to its intersection with the Olympic highway (state road No. 9) in section 35 of the same township. In addition petitioner seeks to condemn an area of eighty-six one-hundreths (.86) of an acre abutting upon that right of way for the purpose of maintaining thereon an office, repair shop and other structures. Polson Logging Company owns all of the lands and premises over which the private way of necessity is sought with the exception of section 16, which is owned by the state.

Polson Logging Company pleaded as affirmative defenses that the greater portion of the area sought to be condemned is a railroad grade and structures built for and adapted to railroad purposes; that there is a feasible way to remove the timber of petitioner by connection with the county road in section 25, township 21 north, range 9 west; and that the east fork of the Humptulips river is available for driving logs from the area involved. Polson Logging Company also pleaded that the petitioner was estopped from acquisition of right of way as under a written agreement between the parties the petitioner was granted for a period ending February 17, 1942, a right to transport timber over the route involved herein.

The trial court expressed the opinion that Polson Logging Company had abandoned the use of its right of way as a railroad right of way; that 'there is not the remotest possibility or probability of the company replacing the rails on the property sought to be condemned for a period of three years;' and made findings of fact, which are summarized as follows:

The route adopted by petitioner's board of directors is a reasonable and proper way of necessity. There is no other available or reasonably practical route over or through which to reach petitioner's timber lands. For a number of years last past petitioner maintained and operated, under a contract with Polson Logging Company which expires February 17, 1942, a grade over and upon which Polson Logging Company maintained for a time a logging railroad (the rails and ties of which Polson Logging Company removed) and the grade was surfaced and graded by petitioner M. & D. Timber Company so as to be usable as a truck logging road for which purpose it has been used by petitioner in the transportation of timber under the above-mentioned contract. The extension of this easement right for the term of three years is necessary to, and required by, petitioner M. & D. Timber Company in order that the remaining timber on petitioner's lands may be completely removed. Under the contract which expires February 17, 1942, petitioner has maintained an office, repair shop, gasoline storage tank and living quarters on an area of approximately eighty-six one hundredths of an acre immediately adjacent to the way of necessity, the use of which site is necessary and required in order that petitioner may use and enjoy, as a part thereof, the easement sought to be condemned. The alternative routes claimed by Polson Logging Company to exist are not available to petitioner; but if either of the suggested routes could be made available it would be at prohibitive cost having regard to the amount of timber and timber products respecting which petitioner seeks to acquire by this proceeding a private way of necessity. The court further found:

'That the route selected by petitioner herein, which is hereby approved by the court, consists in great part of an old railroad grade, or grades, from which the rails and ties were removed several years ago, and respecting which the respondent has no intention to use as a railroad, either at the present time, or during the period for which petitioner seeks to use said route. Such timber as respondent owns or controls, tributary to said route is small in amount and value, and would not justify the construction of a railroad thereon, and is

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