State v. White River Power Co.

• Decision Date: 05 September 1905
• Citation: 39 Wash. 648,82 P. 150
• Court: Washington Supreme Court
• Parties: STATE ex rel. TACOMA INDUSTRIAL CO. v. WHITE RIVER POWER CO. et al.

82 P. 150

39 Wash. 648

STATE ex rel. TACOMA INDUSTRIAL CO. v. WHITE RIVER POWER CO. et al.

Supreme Court of Washington

September 5, 1905

Application for a writ of review by the state, on the relation of the Tacoma Industrial Company, against the White River Power Company and others, to review an order entered in proceedings to condemn land by the White River Power Company. Order reversed and condemnation proceedings dismissed.

Preston, Carr & Gilman, John A. Shackleford Stanton Warburton, and Walker & Munn, for relator.

Thomas B. Hardin, James M. Ashton, and Norwood W Brockett, for respondents.

RUDKIN, J.

The respondent herein is a corporation organized as a water power company and an electric power company pursuant to the laws of the state of New Jersey, and has complied with the laws of the state of Washington respecting foreign corporations. The objects for which the respondent is incorporated, as set forth in its articles, are: 'To develop, adapt, and utilize for commercial purposes the water power afforded by the White river and other rivers and streams and bodies of water in the state of Washington, by the diversion of a portion of the water of the said White river from a point on or near the line dividing secs. 29 and 32, township 20 north range 6 east of Willamette meridian, Pierce county Washington, by means of a ditch, flume, or canal to the point or points of use, together with certain water rights, water and reservoir appropriations, land options, and filings; to develop, adapt, and utilize for commercial purposes the water power afforded by such other streams and bodies of water, and to construct, operate, and maintain a plant or plants for the electric transmission of power, light, and heat from such source or sources of power to all cities, towns, and other places economically accessible from said source or sources of power; to erect, own, and operate a plant or plants for furnishing light, heat, and power in such cities, towns, and places, and to furnish light, heat, and power therein for any purpose to individuals and public and private corporations and municipal bodies; to store, transport, and sell water and water power and privileges for any purpose, in connection with such rivers, streams, and bodies of water; to purchase erect, own, and operate waterworks in connection therewith; to erect and maintain dams, reservoir, mills, manufactories, and other erections, and to operate the same; to buy, own, and sell real estate in connection with said business.' The respondent proposes to erect and maintain a dam in the White river near the town of Buckley, in Pierce county, and thereby divert the water of said river into a canal, through which the same will be conducted to a reservoir at Lake Tapps. From this reservoir the water will be conducted through a further canal to the brow of the hill near the town of Sumner, and there discharged through steel pipes onto the water wheels in the powerhouse to be constructed at the foot of the hill. In this powerhouse the respondent proposes to install electrical generators and other electrical appliances for the purpose of generating or manufacturing electricity to the amount of 50,000 electrical horse power. The electricity thus generated will be transmitted north and south to the cities of Puyallup, Tacoma, Olympia, Auburn, Kent, Seattle, and the cities en route to the Canadian line, and sold in these cities and places for the use of the public in municipal and public lighting, the operation of street and other railways, manufactories, private lighting and heating, and for other public uses. In aid of this enterprise the respondent filed its petition in the court below, whereby it sought to condemn and appropriate certain lands and property belonging to the relator and others. At the preliminary hearing the court found that the proposed use was a public one, and that the appropriation was necessary, and ordered a jury impaneled to assess the damages. This order is now before us for review.

At the threshold of the proceeding the respondent is confronted with the objection that it is seeking to take private property for a private use, in violation of section 16, art. 1, of the state Constitution. If this objection is sustained, it will obviate the necessity of discussing or considering the other questions presented in the briefs and arguments of counsel. The section of the Constitution in question declares that 'private property shall not be taken for private use except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes.' The term 'public use' when applied to the law of eminent domain is not easily defined. It has often been said that it is more easily defined by negation than otherwise. In determining the question of public use, courts have always been influenced to a greater or less extent by legislative declarations, and by local customs and conditions and local necessities. In the states of Maine, Massachusetts, New Hampshire, Connecticut, New Jersey, Indiana, Iowa, Kansas, Wisconsin, and perhaps others, statutes permitting lands to be taken for the purpose of creating water power for milling and manufacturing purposes have been enacted and enforced, though not always without protest. The Legislature of the state of New York has never authorized the exercise of the right of eminent domain in favor of mills of any kind, and it has been said that 'sites for steam engines, hotels, churches, and other public conveniences might as well be taken by the exercise of this extraordinary power.' Hay v. Cohoes Co., 3 Barb. 47. It is safe to say that the courts of that state would not sanction the exercise of the power of eminent domain for any such purpose. Matter of Tuthill, 163 N.Y. 133, 57 N.E. 303, 49 L. R. A. 781, 79 Am. St. Rep 574. The courts of Michigan and Georgia have denied the right of eminent domain in similar cases. Ryerson v. Brown, 35 Mich. 333, 24 Am. Rep. 564; Loughbridge v. Harris, 42 Ga. 500. On the other hand, the courts of Alabama and Vermont have held that the right of eminent domain cannot be exercised in favor of gristmills, unless they are public mills, required by law to grind for all in due turn and for regular tolls. Sadler v. Langham, 34 Ala. 311; Tyler v. Beacher, 44 Vt. 648, 8 Am. Rep. 398. In Head v. Amoskeag Mfg. Co., 113 U.S. 9, 5 S.Ct. 441, 28 L.Ed. 889, the court upheld the New Hampshire statute, as a regulation of the manner in which the rights of proprietors of land adjacent to a stream may be ascertained and enjoyed with a due regard to the interest of all and the public good, but refused to pass upon the question whether the statute could be upheld as a delegation of the right of eminent domain. The courts of the mining and arid land states have also held that the use of water for mining and irrigation purposes is a public use. The question is not a new one in this court. It was fully considered, in relation to another statute, in the case of Healy Lumber Co. v. Morris, 33 Wash. 490, 74 P. 681, 63 L. R. A. 820, 99 Am. St. Rep. 964. The court there cites with approval Lewis on Eminent Domain (section 165): 'Public use means the same as use by the public, and this, it seems to us, is the construction the words should receive in the constitutional provision in question. The reasons which incline us to this view are: First, that it accords with the primary and more commonly understood meaning of the words; second, it accords with the general practice in regard to taking private property for public use in vogue when the phrase was first brought into use in the earlier Constitutions; third, it is the only view which gives the words any force as a limitation, or renders them capable of any definite and practical application. If the Constitution means that private property can be taken only for use by the public, it affords a definite guide to both the Legislature and the courts.' Also from Cooley on Constitutional Limitations (page 652): 'Nor could it be of importance that the public would receive incidental benefits, such as usually spring from the improvement of lands or the establishment of prosperous private enterprises. The public use implies a possession, occupation, and enjoyment of the land by the public at large or by public agencies; and a due protection of the rights of private property will preclude the government from seizing it in the hands of the owner, and turning it over to another, on vague grounds of public benefit, to spring from the more profitable use to which the latter may devote it.' And it said: 'But from a consideration of all the authorities and from our own views on construction, we are of the opinion that the use under consideration must be either a use by the public, or by some agency which is quasi public, and not simply a use which may incidentally or indirectly promote the public interests or general prosperity of the state.' And again: 'It seems scarcely necessary to particularize to show to what extent this doctrine might practically be carried. Under such liberal construction, the brewer could successfully demand condemnation of his neighbor's land for the purpose of the erection of a brewery, because, forsooth, many citizens of the state are profitably engaged in the cultivation of hops. Condemnation would be in order for gristmills, and for factories for manufacturing the cereals of the state, because there is a large agricultural interest to be sustained. Tanneries, woolen factories, oil refineries, distilleries, packing houses, and machine shops of almost every conceivable kind would be entitled to some consideration for the same reasons, thereby actually destroying any distinctions between public and...