State v. Centralia-Chehalis Elec. Ry. & Power Co.

• Decision Date: 19 May 1906
• Citation: 42 Wash. 632,85 P. 344
• Court: Washington Supreme Court
• Parties: STATE ex rel. HARLAN v. CENTRALIA-CHEHALIS ELECTRIC RY. & POWER CO.

85 P. 344

42 Wash. 632

STATE ex rel. HARLAN v. CENTRALIA-CHEHALIS ELECTRIC RY. & POWER CO.

Supreme Court of Washington

May 19, 1906

The Centralia-Chehalis Electric Railway & Power Company brought an action to condemn land of Marian E. Harlan. An order in favor of the company was made therein, and a writ of review is brought, on relation of Harlan, to review such order. Affirmed.

H. S. Elliott and E. M. Green, for relator.

W. W. Langhorne, for respondent.

FULLERTON, J.

The respondent, the Centralia-Chehalis Electric Railway & Power Company, is a corporation organized under the laws of the state of Washington. The objects for which the corporation was formed, as recited in its articles, are many and somewhat varied, and those of a public and quasi public nature are commingled with those that are purely private. Its primary purpose, however, according to the testimony of its promoter is to build, equip, and operate electric street railways in the cities of Chehalis and Centralia, and an electric railway between those two cities, to be connected to and operated with the street railways, for the purposes of carrying passengers and freight for hire. For the purpose of generating the necessary electric current to operate its railways the respondent sought to create a water power on the Chehalis river. It purposes to erect at the site selected a dam across the river some 60 or 65 feet high, which will at once create the necessary fall for power purposes and provide a storage basin, which can be drawn upon during the dry season, when the natural flow of the river may be insufficient to produce the required power. The dam, when constructed, will cause the water to back up and overflow a considerable area of land not now covered by water, a part of which belongs to the relator. The respondent was unable to agree with the relator as to the compensation to be paid for the land taken and damaged belonging to him, and brought an action to condemn under the statutes of eminent domain. After a hearing the court made the preliminary order adjudging the use to which the respondent intended to apply the property to be a public use, that a necessity existed for its taking, and ordered the question of the amount of compensation to be paid the relator to be submitted to the determination of a jury. This proceeding was brought to review that order.

The relator first contends that the use to which the respondent contemplates putting the property is not a public use. The relator does not deny, of course, that the operation of a system of electric railway between and within the cities of Centralia and Chehalis for the purposes of carrying passengers and freight for hire, would not be a public use within the meaning of the statutes and the Constitution; nor does he contend that it is beyond the powers of the court to condemn his land for the purposes of creating the necessary power to operate that system. But he says that the respondent has not proceeded far enough with its scheme to demonstrate that it will be permitted to construct and operate its proposed railways, since it was made to appear by the evidence that it had not procured franchises from the cities of Centralia and Chehalis permitting it to construct its proposed railways within their boundaries, nor a complete right of way between the two cities. The relator argues that, inasmuch as the respondent cannot construct its proposed road until it procures these franchises and this right of way, it is not in a position to say that this power will be needed by it at all, and hence it ought not to be permitted to condemn his land until it is certain that the land will be needed. On the question of the progress the respondent had made in this direction, the record disclosed that it had procured a right of way for its road over all the distance between the two cities, except over a tract about 80 rods in width, and that for this it was negotiating with the owner who was a resident of another county. It appeared, also, that it was then negotiating with each of the cities for franchises; that in each of them the terms of the franchise to be granted had been practically agreed upon, and that ordinances had been drawn and introduced granting to the respondent a franchise in accordance with those terms which had passed to the second reading, and that in one of the cities it had deposited a considerable sum, to be forfeited in case it did not carry out the conditions imposed by the franchise which might be granted it. In fact, it was admitted by the relator on the hearing that the respondent was proceeding diligently in its effort to put itself in a position to commence at once the mechanical construction of its road. It seems to us that the respondent had proceeded far enough to show that its immediate purpose was to apply the power it sought to create by the appropriation of the relator's property to a public use. This was its declared purpose, and its acts in so far as it had actually proceeded pointed to that end. Moreover, it is manifest that an enterprise of this character cannot be completed all at once. Being made up of several parts, it must be completed in parts. Why, then, should one part be deemed of more importance than another? Why may not the city as well say that it will not grant the franchise until the respondent has produced the power as the court may say that it will not grant the right to procure the power until the franchise is granted? If the city did so say, and the...