State v. Superior Court of Spokane County

• Decision Date: 04 February 1911
• Citation: 62 Wash. 96,113 P. 576
• Parties: STATE ex rel. B. SCHADE BREWING CO. v. SUPERIOR COURT OF SPOKANE COUNTY et al.
• Court: Washington Supreme Court

113 P. 576

62 Wash. 96

STATE ex rel. B. SCHADE BREWING CO. v. SUPERIOR COURT OF SPOKANE COUNTY et al.

Supreme Court of Washington

February 4, 1911

Department 1. Writ of review by the State, on the relation of the B Schade Brewing Company, against the Superior Court of the State of Washington in and for Spokane County and others, to review findings of necessity and an order of trial to assess damages in condemnation proceedings. Findings and order reversed and set aside.

Rem. & Bal.Code, § 8739, authorizes any railroad corporation to enter upon any of the state school lands to locate its road. Section 8740 authorizes every railroad corporation to "appropriate" by condemnation any land or interest therein, and any rights of way for tunnels beneath the surface, including state school lands, tidelands, etc necessary for the line of the road, provided that, if the bed of such railway is upon a state or county road, the corporation shall be responsible for the cost of relocating the road appropriated. Section 8738 permits any corporation to change the grade or location of its "road or canal" in order to avoid dangerous or deficient curves etc. Section 5717, provides that "when it shall be necessary in the location of any road herein mentioned to appropriate any part of any public road, street or alley," etc., the county court may, except within the limits of a municipal corporation, agree with the corporation upon the conditions upon which it may be appropriated, and if the parties cannot agree, the corporation may appropriate so much thereof as may be necessary in the location of the road. Section 5718 provides that whenever a private corporation is authorized to appropriate any public highway, etc., as mentioned in the last section, if it be within any town, incorporated or not, the corporation shall locate its road upon the particular street, etc., designated by the local authorities; but if they refuse to make such designation the corporation may make such appropriation without reference thereto. Section 5719 provides that when a public highway, etc., is taken by agreement, the corporation may place tollgates thereon with the consent of the local authorities, but shall not when the highway is appropriated without agreement. Section 8737 authorizes every railroad corporation to construct its railway across, along, or upon any stream, plank road, turnpike, etc., paying any damages caused thereby.

Held, that a railway company could not acquire by eminent domain as against the public the exclusive right to use one-half of a street for a double-track railway; the term "land," as used in sections 8739 and 8740, not including land already devoted to a public use, such as a street.

Turner & Geraghty and Graves, Kizer & Graves, for plaintiff.

H. H. Field and F. M. Dudley, for defendants.

PARKER J.

The relator has brought here by writ of review, and seeks to have reversed, findings of necessity and an order for trial to assess damages against it, made by the superior court for Spokane county in an eminent domain proceeding instituted in that court, in which proceeding the Chicago, Milwaukee & Puget Sound Railway Company seeks to condemn property rights of the relator as the owner of lots abutting upon Front avenue in the city of Spokane. The facts shown by the record are undisputed, and, so far as necessary for us to notice them, they may be briefly summarized as follows: The relator is the owner of lots abutting upon the northerly side of Front avenue, a public street, in Spokane, having a frontage on that avenue of approximately 325 feet. The railway company proposes to construct in that portion of Front avenue upon which the relator's lots abut, and on other portions thereof, a double-track railway. It is proposed to construct these tracks in a cut so that they will be from 13 to 22 feet below the level of the surface of the avenue. This cut is to be 32 feet wide and its sides supported by walls of masonry which are to extend up to the surface of the street. Along on the top of the walls in front of the relator's property is to be constructed a substantial iron fence so as to effectually exclude the public from that portion of the avenue occupied by the cut and the track. The cut on that portion of the avenue will not be deep enough to admit of maintaining the street surface over it without interfering with the operation of the railway, as it will be elsewhere along the avenue where the street surface will be maintained. The cut will occupy nearly the entire south half of the avenue, leaving the north half, upon which the relator's property immediately abuts, undisturbed. Prior to instituting the eminent domain proceedings by the railway company to acquire the right to maintain and inclose this cut as against abutting property, the city of Spokane, by ordinance, granted to the railway company a franchise to occupy Front avenue in the manner we have described. This ordinance contained a proviso that the railway company should not occupy the portion of the avenue here involved, until it had fully compensated the owners of property abutting thereon for any damages sustained to such property by reason of the construction of the railway in this manner. To the end that its right to proceed with the construction of its railway under this franchise might be perfected, it instituted condemnation proceedings against the relator. Upon the preliminary hearing counsel for the relator objected to the court making any finding of necessity or order for assessing damages, upon the ground, in substance, that the city has no power to grant to the railway company the right to occupy the avenue in front of relator's property in the manner contemplated. This objection was overruled, when finding of necessity and an order directing a trial to assess damages were entered. These are the rulings which are here sought to be reversed.

It is at once apparent that the right of the railway company to condemn the property rights of the relator depends upon the right of the railway company to occupy the avenue in the manner proposed, as against the public. If the railway company has not acquired by lawful grant the right to occupy the avenue in this exclusive manner as against the right of the public to use it as a street, then it follows that the railway company cannot acquire the relator's rights therein as an abutting owner by eminent domain proceedings. Otherwise the railway company could exercise the right of eminent domain to acquire the relator's property rights in the avenue, to the end that a nuisance might be maintained therein by the railway company. This plainly is not the law. Sylvester v. Superior Court, 111 P. 787.

We are not here confronted with any question touching the manner of the passage of this franchise ordinance; neither is there any uncertainty as to its terms, which plainly indicate an intention on the part of the legislative power of the city to grant to the railway company the right to occupy substantially one-half of the avenue in front of the relator's property, to the entire exclusion of the public therefrom. The problem for our solution then is: Has the state by legislative enactment delegated to cities of the first class, to which class Spokane belongs, the power to grant by ordinance such franchise and privilege as this ordinance in terms assumes to grant to the railway company in this avenue. Learned counsel for the railway company have called to our attention two classes of legislative enactments which are relied upon by them in support of their contention that the city possesses ample power to make this grant: First, railway legislation; and, second, municipal legislation. The first class has to do with the rights of certain public service corporations to occupy public highways with or without the consent of the local authorities, as is contended by counsel for the railway company; while the second class relates to the granting by cities of the first class of franchises to railway companies to lay their tracks in the streets of such cities. We will notice these in order.

In 1873 the territorial Legislature passed an act entitled 'An act to provide for the formation of corporations.' Laws 1873, pp. 398, 411. This was an original act complete within itself, so we ignore previous acts upon the subject. This act, among other things, provided for the exercise of the right of eminent domain, and the acquiring of rights of way by public service corporations. As to the matters here involved, this act does not appear to have ever been changed or superseded, save by amendments, by reference to its sections as therein numbered, or as those sections and their amendments have been numbered in the Code of 1881, Hill's Code, or Ballinger's Code. Relying upon this fact, learned counsel for the railway company invoke the provisions of this act and its amendments, as a single law upon the subject, to the end that the several sections of law here relied upon to support the railway company's right to acquire the use of this avenue in this exclusive manner may be construed accordingly, though they are not found together in Remington and Ballinger's Code. The original act was divided into chapters; each having a separate series of numbered sections, and chapter 3 being the part here involved. So, when we refer to a section number, it will mean that numbered section of chapter 3 of the act, unless otherwise designated. We think the following are all the provisions of that law which can possibly aid the railway company:

Section 1, as amended, being section 8739, Rem. & Bal. Code provides: 'A corporation organized for the construction of any railway, macadamized road, plank road, clay road, canal or bridge, shall have a right to enter...