State v. Kuykendall

• Decision Date: 10 January 1924
• Docket Number: 17731.
• Citation: 222 P. 211,128 Wash. 88
• Parties: STATE ex rel. SPOKANE INTERNATIONAL RY. CO. v. KUYKENDALL, Director of Public Works of State, et al.
• Court: Washington Supreme Court

222 P. 211

128 Wash. 88

STATE ex rel. SPOKANE INTERNATIONAL RY. CO. v. KUYKENDALL, Director of Public Works of State, et al.

No. 17731.

Supreme Court of Washington, En Banc.

January 10, 1924

Appeal from Superior Court, Spokane County; Blake, Judge.

Petition by the Spokane & Eastern Railway & Power Company and another for permission to install a grade crossing across tracks of the Spokane International Railway Company. From a judgment affirming an order of the Department of Public Works granting the petition, the State, on the relation of the Spokane International Railway Company, appeals. Affirmed.

Mackintosh J., Main, C.J., and Pemberton and Bridges JJ., dissenting.

Allen, Winston & Allen, of Spokane, for appellant.

Graves Kizer & Graves, of Spokane, for respondents.

HOLCOMB J.

Proceedings were had upon the petition of respondents power company and paper company, before the department of public works, under the provisions of section 10513, Rem. Com. Stat., resulting in an order granting the power company permission to install a grade crossing for a spur track of the power company's railroad across the main line of appellant, at Millwood, in Spokane county, this state.

The petition of the power and paper companies set forth the existence of a large paper manufacturing plant owned by the paper company near Millwood, and near the main line of appellant, and that appellant has in operation a spur track to the paper company's plant, used to ship in raw material, and ship out manufactured products in carload lots that the main line of the power company immediately adjoins that of the railway company on the south, and that the grades of both railway lines are substantially identical, at the point of the proposed crossing; that the power company has tributary to its line at Hayden Lake, Idaho, a forest containing wood which can be used to advantage in the manufacture of paper, and that it connects with the Great Northern Railway Company at Spokane, and has traffic agreements with it which would facilitate the handling of wood and wood products in carload lots along that line; that it was impractical to establish an over or under grade crossing; that the spur track would not be used to exceed four times per day, and that it was necessary to grant the right to cross the tracks of appellant at grade.

In its answer appellant denied the existence of any substantial amount of pulp wood near Hayden Lake; admitted the connection of the power company with the Great Northern Railway Company, denying that any advantage would accrue to the power company or the paper company by installing the crossing except the saving of some freight by the power company; and further pleaded the furnishing of ample facilities by appellant to the paper company, that if the physical connections sought were permitted it would necessitate the stopping of each train operated by appellant upon its main line, as well as its side track at Millwood and thus impose upon appellant a perpetual daily charge for which it cannot be compensated by law, and would necessarily bring into existence another grade crossing with its constant and perpetual risk of accident. It also alleged that certain facilities and connections existed beween the power company's railway and other railroads at Spokane and other points, by reason of which no public necessity exists for permitting the grade crossing. The department found that it was impractical to install an overhead or underground crossing; that appellant was not furnishing good service to the paper company; that its route east via the Canadian Pacific Railway was circuitous; that the power company has supplies of pulp wood on its line not available to the appellant company; that it has traffic connections at Spokane with all other lines of railway. The department thereupon permitted the installation of the proposed grade crossing without safety signals or interlocking devices, but orders:

'That the Spokane & Eastern Railway & Power Company, while using this crossing flag all trains across the same, and the Spokane International Railway Company shall reduce the speed of trains at that point so as to pass this crossing under control, and with a reasonable degree of safety.'

Appellant caused the order of the department to be reviewed by the superior court for Spokane county, which affirmed the order of the department; this appeal resulting.

It was contended in the review proceedings in the court below, and is contended here, that the finding and order of the department were erroneous, unreasonable, and unlawful: First, upon the facts as not being warranted by the evidence; second, that the order fails to require interlocking or signal devices to be installed at the crossing; third, that it is not impractical to install an under crossing; and, fourth, that it imposes a perpetual charge against appellant in that it is required by law to stop its trains within 500 feet of any unprotected railway grade crossing.

It is first contended that the department had jurisdiction to refuse or permit the crossing. The opinion in State ex rel. Tacoma Eastern Railway Co. v. Northern Pacific Railway Co., 104 Wash. 405, 176 P. 539, is quoted as follows:

'When a petition is filed for permission to cross an existing road, there are three parties in interest, the two companies and the state; the latter having power to grant or refuse the petition. If it grants the right to cross, all questions of prior right or occupancy of the ground must give way, for the order is a finding by the sovereign state that the need of the public demands two roads instead of one, and the order ipso facto forecloses all questions of seniority and priority between the contending roads.'

This, however, is no more than saying that the concerns represent public interests and for that reason are largely subject to public control. So far as the right and power to regulate within reasonable bounds the place where and the manner in which one railroad may cross another is concerned there is no doubt that the state is a party in interest. But the Constitution gives to every railroad the right to intersect, cross, or connect with any other railroad. Article 12, § 13. We therefore held in State ex rel. Puget Sound Railway Co. v. Northern Pacific Railway Company, 94 Wash. 10, 161 P. 850, that the right to cross could not be denied. The Legislature may regulate the exercise of the right but may not destroy it.

Under the provisions of section 10513, Rem. Comp. Stat., relating to the crossing of one railroad by another, the railroad desiring to cross the other at grade shall file a petition with the department asking leave so to do. The department is required to investigate the practicability of crossing above or below grade, and if it finds such a crossing impracticable the statute requires that it make and file a written order in the cause granting the right and privilege to construct a grade crossing, and prescribing the terms upon which the crossing is granted. Manifestly, under the Constitution, and the statute, the department has no other power than to permit a grade crossing if it finds that no other sort is practicable. If it finds over or under grade crossings impracticable, then it has power to prescribe the manner in which, and terms upon which, the grade crossing may be made. We held in State ex rel. Toppenish v. Public Service Commission, 114 Wash. 301, 194 P. 982, that when the department found no method of construction other than a crossing at grade, which was practicable, it was without power to refuse to permit a grade crossing. That it is true, was the case of a city street crossing, but the case nevertheless dealt with the power of the department under the statute.

It is next contended that the evidence is uncontradicted that there are no engineering obstacles to an underground crossing. It is not contended that an overhead crossing would be practicable from an engineering or construction standpoint. It is shown, however, that there is a financial obstruction in that the power company cannot derive sufficient business from the paper company to justify it in going to the expense of installing an undergrade crossing. It is shown without dispute that an expense of as much as $60,000 to the power company would be prohibitive; that it would not derive sufficient gross revenues from the freight produced by the paper company in two or three years to repay the cost of an under crossing; that its cost would be approximately $115,000. Appellant contends that the word 'practicable' does not apply to the question of financial ability, but means merely 'capable of being effected,' 'possible of performance,' 'feasible,' citing Des Portes v. Southern Ry. Co., 87 S.C. 160, 69 S.E. 148; People v. Poly, 17 Misc. 162, 40 N.Y.S. 990; Bouvier's Law Dictionary.

We think this too narrow a construction of the word 'practicable.' 'If' a railroad 'corporation is financially weak, it must borrow money,' if it can; 'issue additional stock, if there is a market therefor; increase its charges for transportation, if it can get the necessary authority, or cut down its expenses or decrease its facilities for serving the public,' or all of these expedients 'if it can do so * * * If the railroad had to pay a large amount, it ultimately falls on a considerable portion of the public and affects private property...