State v. Superior Court, Benton County

• Decision Date: 19 August 1911
• Citation: 117 P. 487,64 Wash. 594
• Parties: STATE ex rel. SYLVESTER et al. v. SUPERIOR COURT, BENTON COUNTY.
• Court: Washington Supreme Court

117 P. 487

64 Wash. 594

STATE ex rel. SYLVESTER et al. v. SUPERIOR COURT, BENTON COUNTY.

Supreme Court of Washington

August 19, 1911

Department 2. Certiorari by the State, on relation of Norbert R Sylvester and another, against the Superior Court for Benton County to review findings of public use and necessity made by the court in condemnation proceedings. Affirmed.

A franchise granted by the council of a town of the fourth class authorizing a railroad company to build and operate a railroad in a public street, and providing that the tracks should conform to the established grade of the street, that they should not be used for the storage of cars or other than as a main line for the passing of trains, that the road should not impede ordinary traffic, or subject the public to unnecessary danger or inconvenience from operating or maintaining the tracks, is valid.

Moulton & Henderson, for relators.

Danson & Williams and George D. Lantz, for respondent.

ELLIS J.

The relators by certiorari seek a review of findings of public use and necessity made by the respondent court in eminent domain proceedings instituted by the Oregon-Washington Railroad & Navigation Company to condemn the property rights of relators as owners of lots abutting upon Front street in the city of Kennewick. Relator's lots abut upon the southerly side of the street with a frontage thereon of about 75 feet. The railroad company proposes to construct on the north 30 feet of the street a double track railway as a part of its main line. Prior to the institution of the proceedings the town of Kennewick by ordinance, the validity of which is questioned, granted to the company a franchise to build and operate its road on the street. On April 24, 1908, prior to the date of this franchise, the North Coast Railroad Company grantor of the Oregon- Washington Railroad &amp Navigation Company, adopted a different line through the city, and condemned a portion of its right of way thereon. The Oregon-Washington Railroad & Navigation Company is still occupying a part of this prior location with its tracks.

The relators first contend that the railroad company under the laws of this state could acquire no right to occupy any portion of the street either with or without the consent of the city council. This, aside from the question of statutory authority, must depend upon the nature of the proposed occupancy. In State ex rel. Schade Brewing Co. v. Superior Court, 113 P. 576, we held that the city of Spokane had no power to grant to a railway company the right to occupy any part of the street to the entire exclusion of the public, and, in effect, that the grant of a franchise purporting so to do was ultra vires. In that case the franchise purported to authorize the railway company to make a cut in the street 32 feet wide, and support its sides with walls of masonry, with a substantial iron fence on top of the walls effectually excluding the public from the portion of the street so occupied.

It claimed that case is decisive of the question here because the petition for condemnation alleges that 'it is necessary and required by said petitioner for it to appropriate and use all of said north thirty feet of Front street,' and because the order of necessity is couched in similar terms. But the nature of the occupancy proposed is determined neither by the petition to condemn against the abutter nor by the order of necessity. It must be determined by the terms of the franchise. In State ex rel. Sylvester v. Superior Court, 60 Wash. 279, 111 P. 19, we held that the right to condemn against the abutter is dependent upon the right to occupy the street as against the public. As a corollary the grant from the public is the measure of the occupany proposed in the condemnation.

The franchise here in question does not authorize an exclusive occupancy. It provides that the tracks shall conform in every respect to the established grade of the street; that trains shall not be permitted to stand between Washington and Seventh streets for a longer period than five minutes; that the tracks shall not be used for the storage of cars; that the company shall not block crossings for longer than five minutes at a time; that the tracks shall be used for no other purpose than as a main line for the passing of trains; that all telegraph and telephone wires used by the grantee shall be placed underground; that the crossing at Pacific street shall never be blocked by standing trains except in cases of unavoidable emergency and then no longer than absolutely necessary; that the grantee shall not impede ordinary traffic or subject the public to unnecessary danger or inconvenience resulting from constructing, operating, or maintaining the tracks. The franchise thus not only prohibits a present exclusive use, but guards against the use ever becoming exclusive. The contrast with the case of Schade Brewing Company, supra, is plain.

It is further urged that the council of Kennewick had no statutory authority to grant a franchise to lay tracks lengthwise on the streets, and that, before such a franchise could be granted, such power must be conferred by statute in express terms or by necessary implication. But in this state the statute defining the powers of the council of fourth-class cities or towns expressly confers that authority. Section 7731, subd. 13, 2 Rem. & Bal. Code, is as follows: '13. To permit, under such restrictions as they may deem proper, the laying of railroad track and the running of cars drawn by horses, steam, electricity, or other power thereon; and the laying of gas and water pipes in the public streets; and to construct and maintain, and to permit the construction and maintenance of telegraph, telephone and electric light lines therein.' The semicolon found after the word 'thereon' in the above provision was plainly used by inadvertence instead of a comma. Practically the same provision is found with reference to third-class cities, but a comma there appears instead of the semicolon. 2 Rem. & Bal. Code, subd. 13, § 7685. Counsel contends that this is no more than authority to grant to the railroad company the right to construct and operate its lines within the city limits and across streets where necessary. This is not warranted by the context. It will hardly be contended that the right to lay tracks lengthwise on the streets for cars drawn by horses or electricity may not under this statute be authorized by the council, yet the power is no more explicit as to tracks for cars so drawn than as to tracks for cars drawn by steam or other power. The power is conferred by the same words. To read into the statute the word 'across' is to legislate not to construe. Authorities are cited in this connection relating to the exercise of the power of eminent domain as against municipalities for the taking of public grounds for another public use, and to other questions touching the power of eminent domain. They are foreign to the matter here involved, and no useful purpose would be served by reviewing them.

The primary question here is as to the right to grant the franchise, not as to the right to exercise the power of eminent domain. It must be conceded that the right to condemn as against the relators exists if the power to grant the franchise existed and was properly exercised by the city. Lund v. Idaho & Washington N. R. Co., 50 Wash. 574, 97 P. 665, 126 Am. St. Rep. 916.

It is next contended that by the prior and different location of April 24, 1908, the railroad company had exhausted its power of eminent domain, and could not make a change of location without statutory authority. It is unquestionably the law that a general or unnecessary change cannot be made without such authority. The general rule is as quoted by counsel from 1 Lewis on Eminent Domain (3d Ed.) § 402, which, after stating that the power to locate a general route is usually given either by charter or a general statute to the corporation, continues: 'When the choice or discretion which is thus given has been exercised, the power is exhausted, and the location cannot be changed, in the absence of a statutory provision permitting such changes to be made. 'The general rule is,' says the court in one case, 'that where the termini and general route of a railroad are prescribed by the charter, leaving the determination of details to the discretion of the corporation, the power of the company to fix the location of the road is exhausted after such discretion has been exercised, and it cannot relocate its road without statutory authority to do so, and being without power to relocate its road the company is without power to condemn a right of way for a line which it cannot lawfully locate.'' But the author adds: 'But this principle is not to be applied too rigidly. A general or material change of location cannot be made. But minor changes can be made, which experience or change of circumstances have demonstrated to be necessary or desirable. The growth of a town in a certain direction may make a former location of a depot very inconvenient. A railroad may be destroyed by a mountain slide or a washout in such a way that reconstruction would be impracticable or impossible. In such cases it seems to us a change of location may be made so as to obviate the inconvenience in the one case or the difficulty in the other. And so are the authorities.' 33 Cyc. 131, after stating the general rule, also adds: 'But that such changes may be made as are necessary to correct errors in engineering or to avoid obstacles which would defeat or interfere with a proper construction of the road; the railroad company being liable for the damages already actually sustained by landowners by reason of the prior location.' See, also, Hagner v Pennsylvania S. V....