State v. Superior Court of State of Washington

• Decision Date: 27 May 1909
• Citation: 101 P. 1094,53 Wash. 321
• Parties: STATE ex rel. CASCADE PUBLIC SERVICE CORP. v. SUPERIOR COURT OF STATE OF WASHINGTON et al.
• Court: Washington Supreme Court

101 P. 1094

53 Wash. 321

STATE ex rel. CASCADE PUBLIC SERVICE CORP. v. SUPERIOR COURT OF STATE OF WASHINGTON et al.

Supreme Court of Washington

May 27, 1909

Condemnation proceedings by the State, on the relation of the Cascade Public Service Corporation, in which the Nisqually Power Company filed objections, and the City of Tacoma intervened. Judgment of dismissal, and plaintiff applies for a writ of review. Writ denied.

Ellis, Fletcher & Evans and George M. Sinclair for plaintiff.

T. L Stiles, F. R. Baker, and F. A. Latcham, for city of Tacoma.

Hayden & Langhorne, for respondents.

MORRIS J.

This is a contest between two corporations, claiming to be public service corporations; each asserting its priority of right to utilize the waters of the Nisqually river to develop water power for the manufacture of electricity. The plaintiff filed its petition October 15, 1907, in which it sought to condemn lands belonging to the respondent company, situate in the counties of Pierce and Thurston, for the purpose of a storage basin. The respondent company appeared, and numerous hearings were had, until December 8, 1908, when the court below handed down its decision in favor of the respondent company, upon the theory that it, being first in time, was first in right and on December 9, 1908, entered its order dismissing the petition, and the plaintiff brings the proceedings to this court for review.

The city of Tacoma, having first obtained leave so to do, files its brief in this court, in which it sets forth that it is proceeding under various public utility acts to acquire property necessary to the construction of an electric generating plant, to furnish electric power for its lighting purposes, and to that end has selected as the most available location the lands of both plaintiff and respondent company as well as other lands along the Nisqually river, and a part of the waters of the river. The city then attempts to show in its brief that neither the plaintiff nor the respondent company is a public service corporation, and hence neither is entitled to exercise the right of eminent domain. We do not pass upon such question so raised by the city, as it is not directly involved in the question submitted under the writ herein. It will be ample and better time to determine that question when either of these contending corporations seeks to exercise the right of eminent domain against third persons, or the...