State v. Superior Court of King County

• Decision Date: 29 June 1907
• Parties: STATE ex rel. KENT LUMBER CO. v. SUPERIOR COURT OF KING COUNTY et al.
• Court: Washington Supreme Court

90 P. 663

46 Wash. 516

STATE ex rel. KENT LUMBER CO. v. SUPERIOR COURT OF KING COUNTY et al.

Supreme Court of Washington

June 29, 1907

Certiorari by the state on the relation of the Kent Lumber Company against the superior court for King county and others, to review an order made in condemnation proceedings. Order affirmed.

Charles E. Patterson and Charles R. Crouch, for appellant.

H. H Field and C. S. Gleason, for respondents.

MOUNT J.

This case is presented here upon certiorari to review an order made in condemnation, adjudging certain lands necessary for the use of respondent railway company. The record shows that the respondent, Chicago, Milwaukee & St. Paul Railway Company, on April 3, 1907, filed a petition to condemn certain lands in King county for a right of way for railway purposes. The petition alleged all the facts necessary to authorize the condemnation. The relator appeared to that petition and answered, alleging, in substance, that the relator is a railroad corporation engaged in carrying passengers and freight for hire, and that it had appropriated a portion of the lands claimed by the petition to a public use, and was and is occupying the same with a railroad. It also alleged that the city of Seattle had heretofore acquired an easement for erecting and maintaining pole lines for the transmission of light and power on and across all the lands sought by petitioner, and that, if petitioner were allowed to acquire the right of way sought the same would be detrimental to the easement of the city of Seattle. The answer also alleged that the city of Seattle had passed an ordinance authorizing the petitioner to occupy the lands sought as a right of way for its railway, provided the petitioner would not permit its cars to be open while running through Cedar River Valley and over the lands sought to be condemned, the distance being about 10 miles, and not permit ingress and egress to and from its trains, or receive or discharge freight, or maintain yards, switches, or other railroad facilities thereon, and that the petitioner had accepted and agreed to the conditions of such ordinance. It was alleged that, by reason of these facts, the petitioner is not a public service corporation as to that locality, and should not be permitted to condemn the interest of relator in said lands. Upon the trial of the issues made by the pleadings the facts appeared in substance as follows: The relator is a domestic corporation. One of its powers, defined by its charter is to build, operate, and maintain railroads in King county, and carry freight and passengers over the same for hire. It owns and operates sawmills at Kent, its principal place of business. It also owns large tracts of timber lands in King county along Cedar river. In 1904 the city of Seattle acquired from relator, by condemnation, for pole line purposes a strip of land lying on both sides of Cedar river and West of Cedar lake. This strip of land is from 800 to 1,200 feet in width. At the time of the condemnation by the city the rights were reserved to the relator, the owner of the fee, to remove timber and maintain and construct logging roads over the said land for a certain length of time. The relator has constructed a railroad along the Cedar river, and along the city pole line right of way, for a distance of some two or three miles, and has in operation, including side tracks, about six miles of railway. This railway has been used for hauling logs to its mills at Kent. It has not done, nor has it pretended to do, a public business. In 1906 the respondent, Chicago, Milwaukee & St. Paul Railway Company, located its route of railway along Cedar river and through the lands which the city of Seattle had condemned for pole line purposes. The city of Seattle by ordinance granted the railway company a right of way 100 feet wide, through the lands in dispute, upon condition that no station should be established between certain points and no stops made by trains for the purpose of receiving or discharging passengers upon the lands so granted, and other conditions. These conditions were accepted by the railway company. At two places the right of way sought to be condemned in this action infringes longitudinally upon the railway of relator for short distances, and at another place the two lines cross each other. In the petition for condemnation the respondent stipulates to erect and maintain an overhead crossing for relator, and a written stipulation to the same effect was filed at the trial.

The relator contends, first, that, because it is a public service corporation, the respondent company is not authorized to condemn any part of relator's railway. The record in this case is convincing that relator's railroad is in no sense a public service road. It is true the articles of incorporation recite that one of the purposes of the Kent Lumber Company is to...