State v. Superior Court for Snohomish County

• Decision Date: 15 November 1912
• Citation: 71 Wash. 84,127 P. 591
• Parties: STATE ex rel. WEYERHAEUSER TIMBER CO. v. SUPERIOR COURT FOR SNOHOMISH COUNTY et al.
• Court: Washington Supreme Court

127 P. 591

71 Wash. 84

STATE ex rel. WEYERHAEUSER TIMBER CO. v. SUPERIOR COURT FOR SNOHOMISH COUNTY et al.

Supreme Court of Washington

November 15, 1912

Department 2. Petition in eminent domain by the Sultan Electric Company against the Weyerhaeuser Timber Company. From an adjudication of public use and necessity, the state of Washington, on the relation of the Weyerhaeuser Timber Company, brings certiorari against the Superior Court of Snohomish County and the Sultan Electric Company. Remanded for further finding.

Hayden & Langhorne, of Tacoma, for plaintiff.

Shank &amp Smith, of Seattle, for respondent.

ELLIS J.

This is a proceeding by certiorari to review an adjudication of public use and necessity in an action for condemnation. In its petition for condemnation the Sultan Electric Company alleged that it was empowered by its articles of incorporation to engage in the manufacture, sale, and distribution of electricity for light, heat, and power, and all other purposes both public and private; that it was duly authorized to appropriate such lands, real estate, and water rights as necessary or appropriate for the carrying out of its corporate purposes; that it had acquired a franchise from the town of Sultan for the construction of a plant for the manufacture, sale, and distribution of electricity for light heat, and power purposes, and has obligated itself to carry out the terms of the franchise; that, in order to do so, it is necessary that the petitioner appropriate certain described real estate. It then sets out the names of the owners, incumbrancers, or other persons interested therein, among them that of the relator herein and alleges that the petitioner and such owners or persons interested are unable to agree upon the proper compensation to be paid for the property. The prayer was in the usual terms.

The plan as outlined in evidence is to construct a dam about 12 feet high across a small stream called McCoy creek, which is the outlet of Lake Roeniger, in Snohomish county. From the dam, by means of an 18-inch pipe, water will be led downhill approximately 1,400 feet to the site of the proposed power station, giving a fall of about 214 feet, where it will be used to propel a water wheel connected with a generator of an approximate capacity of eighty horse power. From the power station a transmission line will lead a little over a mile to the town of Sultan. McCoy creek at certain periods of the year becomes almost dry. As a part of the plan it is the intention, therefore, to place a dam across the outlet of Lake Roeniger, in order to furnish a reserve of water to be let out gradually during the dry season and utilized in running the machinery. The current will be supplied to the business houses and residences in the town by means of overhead distribution wires. This overhead system was practically completed at the time of the hearing.

The relator contends that the proceeding should have been dismissed, because there was no proof that the respondent had bound itself to build the plant, or had adopted any survey, or taken any corporate action looking to the prosecution of the enterprise. Maps of surveys, showing the lands to be taken for the pipe line and the lands which would be flooded by the erection of the dams and the taking of which is asked for in the petition, were received in evidence upon the testimony of the surveyor who made them, but there was no evidence of any formal resolution of the trustees of the respondent adopting the plan and location, or declaring that the lands sought are necessary to the enterprise. It must be conceded that in those jurisdictions where by statute the corporation itself determines finally the necessity of certain property for its use, and the location and adoption is in and of itself an act of appropriation which vests a conditional title in the locator subject only to the right of the owner to have the compensation assessed and paid, the formal act of location and adoption should be, and is, held a sine qua non to any right in the corporation to institute proceedings to assess the compensation. Thus in Pennsylvania, under a statute providing that 'the president and directors of such company shall have the power and authority by themselves, their engineers, superintendents, agents, artisans, and workmen, to survey, ascertain, locate, fix, mark, and determine such route for a railroad as they may deem expedient,' etc., it is held that this act of location and adoption must be formally authorized by the president and directors before it can be done with any effect, especially as between rival companies seeking the same location. New Brighton & N.C. R. Co. v. Pittsburgh, Y. & C. R. Co., 105 Pa. 13; Weidenfeld v. Sugar Run R. Co. (C. C.) 48 F. 615; Williamsport & N. B. R. Co. v. Philadelphia & E. R. Co., 141 Pa. 407, 21 A. 645, 12 L. R. A. 220. Under such a statute it is held that: 'The act of location is at the same time the act of appropriation. The space covered by the line as located is thereby seized and appropriated to the purposes of the construction and operation of the railroad by virtue of the power of eminent domain, and nothing remains to be done except to compensate the owner.' Williamsport & N. B. R. Co. v. Philadelphia & E. R. Co., supra; Hagner v. Penn. S. V. R. Co., 154 Pa. 475, 25 A. 1082.

Even in those jurisdictions where, as here, the question of necessity is one finally to be determined by the court, and not by the corporation itself, in cases of contest as to priority between rival corporations for the same location the vital point being the time of location and not the mere fact of location, it is held that priority in right must be shown by a priority in time of formal adoption and actual survey. Morris & Essex R. Co. v. Blair, 9 N. J. Eq. 635. The foregoing cases are cited and chiefly relied upon by the relator as showing that this proceeding should fail for lack of proof of a formal resolution adopting the location. They are not applicable to the situation here presented. They all save one (Morris & Essex R. Co. v. Blair, supra) arose under the Pennsylvania statute, which is construed as making the act of location the final determination of the necessity and appropriation, and they all save one (Hagner v. Penn. S. V. R. Co., supra) arose upon a contest between rival companies for the same location, in which the time of location rather than the fact was the material thing as determining priority. In this state the question of necessity is by statute a question for the court, and not for the corporation itself, to finally decide. Rem. & Bal. Code, § 925. In this proceeding the contest is between the petitioner and the landowner, and no question of priority arises. Nowhere in the statute governing the entire procedure (Rem. & Bal. Code, §§ 921-925, inclusive) does it appear that a formal resolution, adopting the particular plan or location and declaring a necessity for the land, is essential either to pleading or proof as an indispensable prerequisite to the right to have a jury called to assess the compensation to be paid. The utmost force which can...