State v. Superior Court for Pacific County

• Citation: 173 P. 192,102 Wash. 460
• Decision Date: 11 May 1918
• Docket Number: 13543.
• Court: Washington Supreme Court
• Parties: STATE ex rel. SOUTH FORK LOG-DRIVING CO. et al. v. SUPERIOR COURT FOR PACIFIC COUNTY et al.

173 P. 192

102 Wash. 460

STATE ex rel. SOUTH FORK LOG-DRIVING CO. et al. v. SUPERIOR COURT FOR PACIFIC COUNTY et al.

No. 13543.

Supreme Court of Washington

May 11, 1918

In Banc.

Appeal from Superior Court, Pacific County; M. L. Clifford, Judge.

On rehearing. Former opinion set aside, and judgment affirmed.

For former opinion, see 94 Wash. 691, 163 P. 15.

Mount and Fullerton, JJ., dissenting.

Fred M Bond, of South Bend, for respondent.

CHADWICK, J.

The Willapa Power Company is the assignee of a franchise granted by the city of South Bend for the supplying of power and water for the use of the inhabitants of the city. The power company began an action to condemn certain rights belonging to the relators in the South fork of the Willapa river. A finding of necessity was made by the court below. The franchise of the power company was granted on the 16th day of March, 1914, and is to continue for a period of 50 years.

Before coming to the particular defenses urged by the relators, we shall notice the objection common to all of them; that the scheme of the power company is impractical and can never be created, or maintained, as outlined in its plans. That the plan will invite engineering difficulties is fairly certain but we cannot say that it is impractical. Engineers may not agree, but such things cannot be worked out by the courts. Our function is limited to a finding of reasonable practicability, necessity, and public use. If the scheme should fail because of engineering difficulties, relators will not suffer. They must be paid all damages suffered by them before the work proceeds; and, if for any reason the scheme fails, or the respondent does not put the property to the uses intended, they have ample remedy.

It is next contended that, although the court made a finding of necessity, it did not find that the public interest required the prosecution of the enterprise. The statute (section 925 Rem. Code) provides 'That the contemplated use for which the land, real estate, premises or other property sought to be appropriated is really a public use, or is for a private use for a private way of necessity, and that the public interest requires the prosecution of such enterprise, * * * and that the land, real estate, premises or other property sought to be appropriated are required and necessary for the purposes of such enterprise.'

It will thus be seen that the law requires a finding on the part of the court that the enterprise is: (a) A public use; (b) that the public interest requires the prosecution of the enterprise; and (c) that the land or the property is required and necessary for the purposes of such enterprise. State ex rel. Weyerhaeuser Timber Co. v Superior Ct., 71 Wash. 84, 127 P. 591; State ex rel. Union Trust & Sav. Bank v. Superior Ct., 84 Wash. 20, 145 P. 999, 149 P. 324.

While the court does not say in words that the 'contemplated use * * * is really a public use,' the findings are nevertheless ample to sustain its decree. The court finds the city of South Bend granted the franchise under which the power company is prosecuting its enterprise, to the end that the inhabitants of the city might be provided with electrical power for municipal, domestic, and other purposes; that they may have an ample supply of water for domestic uses, sanitary purposes, fire protection, manufacturing, etc.; that the city of South Bend and its inhabitants will depend upon the power company to supply power and water; that its present plant is insufficient to meet the demands of a growing population; and that it is necessary to enlarge its plant. This, when coupled with a finding that the power company is proceeding in aid of its franchise, is enough to satisfy the statute. We do not understand that the court is obliged to find in bare words that the contemplated use is a public use, but rather that facts be found from which the legal conclusion that it is a public use can be drawn. In State ex rel. Weyerhaeuser Timber Co. v. Superior Court for Snohomish County, 71 Wash. 84, 91, 127 P. 591, 593, after conceding that public interest is not identical with public use, we said:

'Public interest is nevertheless a necessary concomitant of public use. Where, therefore, as in this case, the only present demand is for a public use, and the respondent has, by its franchise and by a contract with the town, bound itself to furnish the town with light, we must, in the absence of any evidence to the contrary, assume that it is of interest to the public that the enterprise be prosecuted in some form.'

We think the ordinance declaring the uses intended and the finding of the court are sufficient to bring this case within the rule just quoted.

We will next take up the several contentions of the relators.

The Weyerhaeuser Timber Company is the owner of large tracts of valuable timber lands on, and adjacent to, the south fork of the Willapa river. It is conceded that the stream is navigable for logging purposes, and that the timber owned by the company is tributary to the stream, and can be logged and driven to market in the stream by the company, or by the South Fork Logging Company, which is a boom and driving company. The timber company resists the condemnation of its rights upon the river because of its prior occupancy of the field as owner of tributary timber and its use of the stream as a highway either directly or through the intervention of a public agent. From the very nature of things, property devoted to a public use may be claimed by one or more of several agencies all protesting an admitted private or public right, and generally the one first in time is first in right. The relative rights of public service corporations with respect to property owned by one and sought to be condemned by another has been clearly defined by this court:

'There can be no doubt that property held by a corporation simply as a proprietor may be taken for public use by another corporation having the right of eminent domain. And even property actually devoted to public use is still subject to the power of eminent domain, except that 'it cannot be taken to be used for the same purpose in the same manner,' as that would amount simply to a taking of property from one and giving it to another, without any benefit or advantage whatever to the public, an act which the Legislature is powerless to authorize.' Samish River Boom Co. v. Union Boom Co., 32 Wash. 586, 73 P. 670.

'Within the principles discussed in Samish River Boom Co. v. Union Boom Co., 32 Wash. 586, 73 P. 670, the power exists for one public service corporation to condemn property held by another. Such power may not be exercised arbitrarily or indiscriminately so as merely to take property away from one corporation and give it to another. It cannot be taken to be used for the same purpose in the same manner; but where there is a necessity for devoting it to some other public service, it may be condemned.' State ex rel. Skamania Boom Co. v. Superior Court, 47 Wash. 166, 91 P. 637.

See, also, State ex rel. Union T. & S. Bank v. Superior Court, 84 Wash. 20, 145 P. 999, 149 P. 324. Because these things are true it has been necessary before now to measure the rights of the contending parties. The standard of measurement is the public interest, and private rights as well as quasi public rights are made to give way to those which are entirely public.

The rule laid down by Mr. Lewis in his work on Eminent Domain, § 276, was adopted by this court in State ex rel. Skamania Boom Co. v. Superior Court, 47 Wash. 166, 91 P. 637. It is:

'But we should say that there was a reasonable necessity for the taking where the public interest would be better subserved thereby, or where the advantages to the condemnor will largely exceed the disadvantages to the condemnee.'

The thing to be considered is in reality the interest of the public, for theoretically the taking or the holding of any property capable of being put to a public use is for the public. It thus becomes as between contending public service agencies a question of benefit or advantage to the public. It is for this reason that courts invariably insist upon a showing of public necessity as well as a public use.

The timber company is in no different situation than any other landowner who has been accustomed to use a highway which adjoins or crosses his lands. He is entitled to recover damages pro tanto to the extent of his injury.

The Northwest Electric & Water Works Company was organized in 1912 and took over a company which had secured a franchise to supply the inhabitants of the city of South Bend with a supply of water for domestic purposes and for fire protection. Its franchise was granted on the 3d day of April 1893, and will expire on the same day in the year 1923. The corporate powers of the electric company are primarily to acquire, lease, construct, and operate water systems for the supply and sale to municipalities for domestic and other uses and purposes. Its predecessor had been and it is now engaged in the business of maintaining...