State v. Superior Court for Skamania County

• Decision Date: 13 September 1907
• Citation: 91 P. 637,47 Wash. 166
• Parties: STATE ex rel. SKAMANIA BOOM CO. v. SUPERIOR COURT FOR SKAMANIA COUNTY et al.
• Court: Washington Supreme Court

91 P. 637

47 Wash. 166

STATE ex rel. SKAMANIA BOOM CO. v. SUPERIOR COURT FOR SKAMANIA COUNTY et al.

Supreme Court of Washington

September 13, 1907

Writ of review, on the relation of the Skamania Boom Company, against the superior court for Skamania county and the judge and clerk thereof, to review condemnation proceedings. Judgment affirmed.

George S. Shepherd and Helmus W. Thompson, for relator.

James B. Kerr, A. L. Miller, and L. C. Gilman, for respondents.

HADLEY C.J.

A writ of review was issued by this court for the purpose of reviewing the action of the superior court of Skamania county in certain condemnation proceedings. The action in the trial court was initiated by the petition of the Portland & Seattle Railway Company against the Skamania Boom Company and others. The said petitioner and also said boom company are corporations organized under the laws of this state, the former for railway purposes and the latter for booming purposes. The petitioner has surveyed and located a line of railroad and is now engaged in the construction thereof down the north bank of the Columbia river from a point at or near Kennewick, Wash., to Vancouver, Wash., and thence across said river to Portland, Or., which railroad it proposes to build and operate as a common carrier of freight and passengers. It claims that for the purposes of the construction and operation of said railroad it is necessary to condemn and appropriate for its use as a right of way a certain strip of land 200 feet in width, being 100 feet on each side of the center line of the railroad as now located across a tract of land owned by the said boom company. A preliminary hearing was had, and the court found that it is necessary for the petitioner to condemn and appropriate said strip of land for its use as a right of way, that the contemplated use is a public use, and that the public interest requires the appropriation of the land for said railway purposes. It was ordered that a jury should be impaneled for the purpose of ascertaining the damages resulting from such appropriation. The boom company thereupon filed its petition here as relator, and asked the writ of review. Meanwhile the trial of the question of damages has been suspended.

The situation is substantially as follows: The relator owns a tract of land containing about 38 acres, lying upon the east bank of Wind river and a short distance to the north of the confluence of said stream with the Columbia river. The relator's plat or survey as a boom company, filed in the office of the Secretary of State of the state of Washington and which shows so much of the shore line of the waters of Wind river and lands contiguous thereto as are proposed to be appropriated by said boom company as necessary for its purposes, embraces the said tract. The location of the railway line is about the center of this tract considered from the north to the south, and crosses the tract in an easterly and westerly direction, leaving practically equal parts of the tract to the north and south of the right of way strip sought to be appropriated. The relator claims that it needs this entire tract as a holding ground for logs in times of high water, that when the waters of the Columbia are high the logs cannot be handled at the mouth of Wind river, and that the waters are forced up Wind river, which overflows the tract in question, forming a holding ground for the logs. The testimony shows that during a period of eight successive years the relator has actually used the ground twice in connection with handling logs. Each time the period of such use covered a few weeks by reason of the fact that the land was covered by water. So far as the evidence shows the land at all other times during the eight years has either been entirely uncovered by water or has not been under sufficient water to be used for logging purposes. It further appears that at the two times named the use that was made of the ground was for brailing or sorting logs. Under such circumstances the relator claims that the tract in question has been devoted to a public use; that the relator is a public service corporation, having previously devoted the land to a public purpose; and that the railway company cannot...