State v. Superior Court for Chehalis County

• Decision Date: 11 December 1914
• Docket Number: 12450.
• Citation: 144 P. 722,82 Wash. 503
• Parties: STATE ex rel. GRAYS HARBOR LOGGING CO. et al. v. SUPERIOR COURT FOR CHEHALIS COUNTY et al.
• Court: Washington Supreme Court

144 P. 722

82 Wash. 503

STATE ex rel. GRAYS HARBOR LOGGING CO. et al. v. SUPERIOR COURT FOR CHEHALIS COUNTY et al.

No. 12450.

Supreme Court of Washington

December 11, 1914

Department 2. Certiorari by the State of Washington, on the relation of the Grays Harbor Logging Company and others, against the Superior Court for Chehalis County and others, to review a judgment sustaining the right of condemnation. Affirmed.

Bridges & Bruener, of Aberdeen, for respondents.

MAIN J.

The purpose of this action was to acquire by condemnation a private way of necessity. After a hearing the trial court entered a judgment sustaining the right to condemn. To review this judgment, the cause is brought here by certiorari.

The facts are substantially as follows: The relators are the owners of the N.W. 1/4 of section 32, township 19 north range 4 west, W. M. in Chehalis county, Wash. The respondent Coats-Fordney Logging Company is the owner of sections 30 and 20, the S.W. 1/4 of section 10, and the S.W. 1/4 of section 8, in the same township. The Weyerhaeuser Timber Company is the owner of section 31, likewise in the same township. The lands of the Coats-Fordney Logging Company have upon them large quantities of valuable timber, all of which lands and timber lie to the north of the N.W. 1/4 of section 32, owned by the relators. For some years the Coats-Fordney Logging Company had been engaged somewhat extensively in the business of logging. In the prosecution of this business it has constructed a logging railroad, now about 6 1/2 miles in length. The lower terminus of this logging road is at tide water in the Wishkah river. This river flows, generally speaking, in a southwesterly direction. Some miles to the east or southeast of it, the Wynochee river flows in the same general direction. The logging railroad constructed by the Coats-Fordney Logging Company follows the divide or crown of the ridge between these two rivers. The upper terminus of the road is now at some point in the S. 1/2 of section 31, which is owned by the Weyerhaeuser Timber Company. By this condemnation the Coats-Fordney Logging Company desires to extend its road across the N.W. 1/4 of section 32, owned by the relators, and thence in a generally northeasterly direction, for the purpose of logging from the lands above mentioned owned by it. The S.W. 1/4 of section 8, owned by the Coats-Fordney Logging Company, is adjacent to the East fork of the Wishkah river. This is a navigable river for the purpose of floating logs to tide water. None of the other lands owned by the Coats-Fordney Logging Company are upon the river.

Upon the trial the relators contended that, instead of following the divide and passing through the N.W. 1/4 of section 32 there was a feasible route over which a road could be constructed at a reasonable cost across the N. 1/2 of section 31 directly into section 30, and thus avoid crossing the relators' land.

There are three questions in this case: (1) Was a way across the N 1/2 of section 31 sufficiently practicable and available to the Coats-Fordney Logging Company to deny it the right to condemn a way of necessity across the land of the relators? (2) Was the fact that the S.W. 1/4 of section 8 was upon the East fork of the Wishkah river a sufficient reason to deny the right of condemnation, so far as it pertained to reaching that particular tract of timber? And (3) Does the law which gives the right to condemn a private way of necessity offend against the due process of law clause found in the fourteenth amendment to the federal Constitution?

I. The relators claim that, instead of seeking to condemn across their land the N.W. 1/4 of section 32, the road should be extended north through the N. 1/2 of section 31. As appears from the facts stated, this latter section was not owned by the Coats-Fordney Logging Company. Upon the trial the relators offered evidence to show:

'That it is entirely feasible to cross section 31 at a reasonable cost in the building of a logging railroad, to run north to sections 20 and 30 and the S.W. 1/4 of section 10 and the S.W. 1/4 of section 8, all in 19-8.'

This evidence the trial court declined to receive. This it is claimed was error.

The general rule is that, where a public service corporation is seeking to condemn land, those invested with the power of eminent domain have the right in the first instance to select the land which, according to their own views, is most expedient for the enterprise, but that the court is invested with power to determine whether specific land proposed to be taken is necessary, in view of the general location, and to finally determine the question of necessity for taking such specific land, when there is evidence of bad faith or oppression or an abuse of power in the selection. In order to overcome the prima facie case made by the condemnors, it is necessary to show, by clear and convincing evidence, that in the selection of the proposed route there was bad faith, oppression, or an abuse of power. In State ex rel. Postal, etc., Co. v. Superior Court, 64 Wash. 189, 116 P. 855, it was said:

'We believe that the correct construction of this statute is that those invested with the power of eminent domain have the right, in the first instance, to select the land which, according to their own views, is most expedient for the enterprise, and that it invests the court with the power to determine whether specific land proposed to be taken is necessary, in view of the general location, and to finally determine the question of necessity for the taking of such specific land, when there is evidence of bad faith, or oppression, or of an abuse of the power in the selection. Plainly the selection by the condemnor is evidence of the highest character that the land selected is necessary for the enterprise, and, in the absence of clear and convincing evidence to the contrary, it conclusively established the necessity. It is sufficient to make a strong prima facie case, but when convincing evidence is adduced by the owner that the land sought is not reasonably necessary, and that a slight change of location to other of his land will equally meet the necessity of

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