State v. Superior Court of Thurston County

• Decision Date: 08 January 1915
• Docket Number: 12366.
• Citation: 83 Wash. 445,145 P. 421
• Parties: STATE ex rel. CLEAR LAKE LOGGING R. CO. v. SUPERIOR COURT OF THURSTON COUNTY et al.
• Court: Washington Supreme Court

145 P. 421

83 Wash. 445

STATE ex rel. CLEAR LAKE LOGGING R. CO. v. SUPERIOR COURT OF THURSTON COUNTY et al.

No. 12366.

Supreme Court of Washington

January 8, 1915

Department 1. Certiorari to superior Court, Thurston County; C. E Claypool, Judge.

Certiorari by the State, on the relation of the Clear Lake Logging Railroad Company, against the Superior Court of Thurston County and others. Writ issued, and cause reversed and remanded.

Dipart & Ellsbury, of Centralia, and F. D. Oakley, of Tacoma, for relator.

T. F Mentzer, of Tenino, Troy & Sturdevant, of Olympia, Kerr &amp McCord, of Seattle, and Thomas O'Leary, of Olympia, for respondents.

MORRIS J.

This writ was sued out to review an order of the court below denying relator an order of public use and necessity. Relator, as indicated by its name, was organized as a toll logging road, and is seeking to condemn a 30-foot right of way to extend its road a distance of about 3,500 feet across lands of the respondent Mentzer Bros. Lumber Company. The chief objections urged to the entry of the order of public use are: (1) No showing of any public use; (2) the contemplated use is the private use of the A. P. Perry Lumber Company; (3) other and more feasible locations not interfering with the respondent's contemplated use of its property.

Relator offered evidence to the effect that there was from 150,000,000 to 250,000,000 feet of timber tributary to the first 4 miles of the proposed route, and beyond that the supply was unlimited. Respondent's estimate of the amount of timber accessible was much less. It is evident, however, that there is a large supply of timber tributary to the proposed road. Bringing this timber to mill or market is certainly a public use. It is also shown that, since the relator began operating the road as at present constructed, it has been used to some extent for the shipment of timber products. The amount of service that has been rendered other parties is not so material in determining the question of the public use so long as the relator receives without discrimination all that is offered, and has in no respect failed to discharge its duty in this regard. It is the nature, and not the extent, of the use that determines its public character. State ex rel. United, etc., T. Co. v. Superior Court, 60 Wash. 193, 110 P. 1017.

The second objection is based upon respondent's contention that relator is but another name for the A. P. Perry Lumber Company, and that its purpose is to serve the logging plant of the lumber company. The fact that a large part of relator's business would be the transportation of timber for the Perry Lumber Company, and that the timber company would exercise a controlling interest in the logging railroad, does not destroy the character of the relator as a public service corporation, nor change its contemplated use from a public to a private use. A like contention was urged against the right of condemnation in the United, etc., T. Co. Case, supra. It was there met by saying that public service corporations are amendable to public regulation, and can be made to discharge their public duties in a satisfactory manner. Overruling a similar contention in State ex rel. McIntosh v. Superior Court, 56 Wash. 214, 105 P. 637, we said:

'The fact that

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