State v. Department of Public Works of Washington

• Decision Date: 07 March 1930
• Docket Number: 22265.
• Citation: 286 P. 39,155 Wash. 665
• Court: Washington Supreme Court
• Parties: STATE ex rel. OREGON-WASHINGTON R. & NAV. CO. v. DEPARTMENT OF PUBLIC WORKS OF WASHINGTON et al.

286 P. 39

155 Wash. 665

STATE ex rel. OREGON-WASHINGTON R. & NAV. CO. v. DEPARTMENT OF PUBLIC WORKS OF WASHINGTON et al.

No. 22265.

Supreme Court of Washington

March 7, 1930

Department 2.

Certiorari to Superior Court, Grays Harbor County; Wm. E. Campbell Judge.

Proceedings by the State, on the relation of the Oregon-Washington Railroad & Navigation Company, to the Department of Public Works of Washington, to review orders in railroad crossing proceedings brought by the Grays Harbor Pacific Railway Company. From an order sustaining the Department, relator appeals.

Affirmed.

A. C Spencer and F. J. Betz, both of Portland, Or., F. T. Merritt of Seattle, and W. H. Abel, of Montesano, for relator.

John H. Dunbar and John C. Hurspool, both of Olympia, John C. Hogan, of Aberdeen, and Roberts, Skeel & Holman, of Seattle, for respondents.

HOLCOMB J.

This appeal is from a judgment in the lower court sustaining findings of fact and an order of the state department of public works granting Grays Harbor Pacific Railway Company the right to construct an overhead crossing over the common carrier railroad line of appellant and the Chicago, Milwaukee, St. Paul & Pacific Railroad, in Grays Harbor county.

A main line of railroad, belonging to appellant and used and operated jointly by it and the Chicago, Milwaukee, St. Paul & Pacific Railroad Company extends west from Centralia to Hoquiam along the south shore of the Chehalis river. A small portion of this line near Centralia is not jointly used by the Chicago, Milwaukee, St. Paul & Pacific Railroad Company and appellant. Appellant individually owns and operates a branch railroad extending in a general north and south direction at right angles to the main line and joining the latter at a point near Cosmopolis. This is known as the North River branch, and follows the stream of that name. Both the main line and the branch line are common carriers.

The Grays Harbor Pacific Railway Company was incorporated in 1929 to be operated as a toll logging railroad. For brevity, it will hereinafter be called the logging railway. It at once projected a railroad line substantially paralleling the North River branch of appellant. It extends southward to the timber lands belonging to the incorporators from a tide-water point known as Preacher's slough on the Chehalis river. From the latter point the line rises on a rapidly ascending grade, and will cross the main line of appellant and the North River branch above grade on overhead bridges or trestles, grade crossings being found impracticable because of the topography of the country. The logging railway applied to the department of public works for authority to establish these crossings, and the department, after hearings, granted the application, divided the expense of the crossing between that railway and appellant and its co-owner, and authorized the logging railway to proceed with construction immediately. The Milwaukee Railway was not cited by the department at the inception of the proceedings, and did not appear or take part in the hearings, but, after the conclusion of the hearings, it voluntarily appeared by stipulation and agreed to be subject to any order the same as if it had been a party originally. The department of public works apportioned the cost of the overhead crossings 99 per cent. to the logging railway and 1 per cent. to the Milwaukee Railway and appellant. The cost of the two crossings was estimated to be $2,300. It thus appears that the almost nominal sum of $23 was apportioned as the costs to be paid by the Milwaukee and appellant, but the department did not apportion that amount between those two companies. At the time of the institution of the proceeding before the department by the logging railway, it had not procured the right of way across the main or branch line of appellant, but had commenced condemnation proceedings. An order of necessity for the appropriation has been entered in favor of the logging railway, which has been brought here for review, and, recently, has been affirmed. See State ex rel. O. W. R. & N. Co. v. Superior Court of Grays Harbor County (Wash.) 286 P. 33; also State ex rel. O. & W. Railroad Co. v. Superior Court of Grays Harbor County (Wash.) 286 P. 37.

On appeal from the order of the lower court sustaining the department, the first error assigned and urged is based upon the contention that the department of public works had no jurisdiction of the subject-matter involved.

This contention is founded upon the assertion that the department has no authority to permit, or to forbid, the crossing of one railroad over another at other than common grade. Rem. Comp. Stat. § 10513, in part provides:

'Whenever any railroad company desires to cross any highway or railroad at grade, it shall file a written petition with the commission setting forth the reasons why the crossing cannot be made either above or below grade. * * *'

It is argued from the above language that it is only when the commission's (now department's) power is thus invoked to determine whether the crossing shall be made at grade, or overhead, or underground, and if it finds that a grade separation is impracticable, that it must authorize a grade crossing; that it has no other jurisdiction whatever over such matters.

We find in the petition of the logging railway to the department the following:

'That petit...