State v. Superior Court of Thurston County

• Decision Date: 09 June 1906
• Parties: STATE ex rel. HARRIS et al. v. SUPERIOR COURT OF THURSTON COUNTY et al.
• Court: Washington Supreme Court

85 P. 666

42 Wash. 660

STATE ex rel. HARRIS et al. v. SUPERIOR COURT OF THURSTON COUNTY et al.

Supreme Court of Washington

June 9, 1906

Certiorari by the state, on the relation of Henry Harris and others, to review the proceeding of the superior court of Thurston county, O. V. Linn, as resident judge thereof, and others, in proceedings by the Olympia Light & Power Company for a condemnation of land. Judgment of condemnation reversed.

T. N. Allen and Troy & Falknor, for respondents.

DUNBAR, J.

Respondent a domestic corporation, with its principal place of business at Olympia, filed its notice and petition in the superior court of Thurston county, Wash., for the condemnation and appropriation of certain real property situate in Thurston county, Wash., belonging to the relators. The respondent is a light and power company, and under certain charter provisions is employed to furnish light to the cities of Olympia and Tumwater, and to run electric cars in and between the cities of Olympia and Tumwater for hire. The electricity which is used by the company is generated by water power from water which flows down the Des Chutes river. It is alleged in the petition that there is not sufficient water to furnish power for the company to carry out the provisions of its charter in furnishing electricity to the cities of Olympia and Tumwater and in operating their electric cars, and for the purpose of furnishing such power as it has been furnishing at reasonable and uniform rates to the public generally. The petition, among other things, is as follows: 'That your petitioner has not been, nor does it intend to engage in any other corporate purposes except as herein set out, except it admits it has been engaged in furnishing electric power at reasonable and uniform rates to the public generally and without discrimination between persons substantially similarly situated, and is bound to continue to so furnish electrical power to the general public at reasonable and uniform prices and without discrimination between persons substantially similarly situated.' The testimony in the case is also to effect that the condemnation is sought for the purpose of obtaining additional power not only for use in operating the light plant and the electric car system, but for the purpose of selling power to the different manufactories and for different purposes. So that the question presented is whether or not the furnishing of power outside of the power necessary to operate its electric cars and lighting system is a public use. This question was raised by the pleadings, and the court found that such use was a public use, that the respondent had the right and power to condemn that there was a necessity for the condemnation, ordered the question of the compensation to be paid the relator to be submitted for the determination of a jury. This proceeding was brought to review that order.

The land sought to be condemned was land which would be overflowed by raising a dam in the Des Chutes river creating a reservoir for the purpose of storing the waters of the Des Chutes river and using the same in times of low water. We held, in the State of Washington, on the relation of Marian E. Harlan, plaintiff, v. Centralia-Chehalis Electric Railway Power Company, respondent, 85 P. 344 that the operation of an electric car was a public use, and the right of condemnation existed for the purpose of obtaining power necessary for the prosecution of such business. It is also, we think, without question, now admitted that the furnishing of electric lights to a municipality is a public use which warrants condemnation of private property. In the case last mentioned it was said that, if a private use is combined with a public one in such a way that the two cannot be separated, then unquestionably the right of eminent domain could not be invoked to aid the enterprise. And many cases were cited to the effect that the statute authorizing the condemnation of property for uses, a part of which only are of a public nature, is in violation of the rule that private property cannot be taken for private use, and hence cannot be enforced. And that the courts are not confined to, and it is not to be tested exclusively by, the...