48 Wash. 529 | Wash. | 1908
This proceeding was instituted by the North Coast Railway as petitioner against the Northern Pacific Railway Company and others as claimants, for the purpose of condemning a right of way for the petitioning corporation. The land which the petitioner seeks to condemn lies within the right of way of the claimant Northern Pacific Railway Company, in Yakima county. The claimant company’s title to its right of way in general was acquired from the United States through an act of Congress passed in 1864, which granted to claimant’s predecessor in interest, Northern Pacific Railroad Company, two hundred feet in width on each side of its railroad where it should pass through the public lands.
Prior to the passage of the act granting to claimant’s predecessor the right of way as aforesaid, and in the year 1859, the United States entered into a treaty with the Yakima Indians, whereby certain lands were reserved to the Indians, the territory covered thereby being commonly known as the Yakima Indian reservation. That portion of the right of way here in question lies within said reservation, and was not a part of the public lands, within the meaning of the said act of Congress, which the United States could then absolutely grant. The reservation thereof to the Indians, therefore, remained in force until the year 1885, when their rights therein, to the extent of a strip of two hundred and fifty feet in width, were extinguished by their agreement with the United States and by their release of a strip of land extending one hundred and twenty-five feet “on each side of the line laid down on the map of definite location of the route of the Northern Pacific railroad wherever said line runs through said reservation.” For the above reasons the right of way of claimant at the point in question is two hundred and fifty feet in width, whereas the usual width under the original grant was four hundred feet. At the place in question the claimant’s right of way extends in a northerly and southerly direction follow
The petition alleges, that the petitioner is a corporation duly organized under the laws of this state to construct, maintain, and operate railways within the state, and that it. is now engaged in the construction of a .line of railway from Kiona, in Benton county, to the city of North Yakima, in Yakima county; that owing to.the topography of the country the petitioner cannot reasonably locate its railroad without going over the right of way of the claimant railway company, or incurring ruinous expense; that said Union Gap is a narrow defile with an abrupt mountain rising from the Yakima river on the west; that at the foot of the mountain and within a few feet of the river, the claimant railway company has constructed and is operating its line; that the mountain rises abruptly several hundred feet in height, and that in order to construct petitioner’s road through said gap, the strip of land sought becomes necessary. The claimant railway company answered the petition by denials and by affirmative allegations, to the effect that the petitioner is not entitled to condemn any part of said right of way. A preliminary trial was had before the court to determine the question of public use and necessity, and that question was determined in favor of the petitioner. This is a proceeding in this court by writ of review to review the judgment of the trial court. Each
The claimant first contends that no part of the right of. way granted to its predecessor, and which has passed to the claimant company, is subject to appropriation by any other railroad company. This contention is based upon the theory that the act of Congress which granted a right of way four hundred feet in width was in itself a conclusive determination that the entire amount granted was necessary for the public purposes of the grant, and that it is not a question for the courts to determine whether the whole of it is actually needed or not. The same argument is applied to the tract in question, the Indian title to which did not pass until the aforesaid treaty, which was long after the grant by the railway act of 1864, but which treaty was afterwards ratified by Congress, including the reduced width of the right of way. Upon this point claimant cites Northern Pac. R. Co. v. Townsend, 190 U. S. 267, 23 Sup. Ct. 671, 47 L. Ed. 1044. Emphasis is placed by claimant upon the following language used in the opinion in the above case:
“Nor can it be rightfully contended that the portion of the right of way appropriated was not necessary for the execution of the powers conferred by Congress, for, as said in Northern Pacific Railroad Co. v. Smith, 171 U. S. 261, 275, speaking of the very grant under consideration: ‘By granting a right of way four hundred feet in width, Congress must be understood to have conclusively determined that a strip of that width was necessary for a public work of such impor•tance.’ Neither courts nor juries, therefore, nor the general public, may be permitted to conjecture that a portion of such right of way is no longer needed for the use of the railroad and title to it has vested in whomsoever chooses to occupy the same. The whole of the granted right of way must be presumed to be necessary for the purposes of the railroad, as against a claim by an individual of an exclusive right of possession for private purposes.”
It will be observed from the language quoted that the court had under consideration a question of title claimed through
“Of course, nothing that has been said in anywise imports that a right of way granted through the public domain within a state is not amenable to the police power of the state. Congress must have assumed when making this grant, for instance, that in the natural order of events, as settlements were made along the line of the railroad, crossings of the right of way would become necessary, and that other limitations in favor of the general public upon an exclusive right of occupancy by the railroad of its right of way might be justly imposed. But such limitations are in no sense analogous to claim of adverse ownership for private use.”
It seems clear from the quotation last made that the Federal supreme coui’t recognizes the power of the state to determine whether the whole of a right of way which has been created by Federal grant through an act of Congress is actually needed as against the requirements of the public service which arise with the increase of commerce and transportation necessities. It has been repeatedly held by this court that the power exists in this state, when public necessity requires it, for one railway or public service corporation to condemn a part of the right of way of another railway company or public service corporation which is not necessary for the exercise of the latter’s franchise. Seattle & Montana R. Co. v. Bellingham Bay & Eastern R. Co., 29 Wash. 491, 69 Pac. 1107; State ex rel. Spokane Falls & N. R. Co. v. Superior Court, 40 Wash. 389, 82 Pac. 417; State ex rel. Columbia Valley R. Co. v. Superior Court, 45 Wash. 316, 88 Pac. 332; State ex rel. Kent Lumber Co. v. Superior Court, 46 Wash. 516, 90
It is true the most, if not all, of the last-cited cases related to crossings of other railways over a right of way acquired by Federal grant, whereas the tract here sought is not for mere crossing purposes but is a longitudinal tract about three-fifths of a mile in length, to be carved out of claimant’s right of way. The principle as to the power of eminent domain is, however, the same in both cases, depending upon the necessities of the occupying railway and those of the public sendee. This court has held that a longitudinal portion of a right of way may be condemned by another railway corporation where the occupying railway does not actually need it, and where it is needed by the other in the interest of the public service. Seattle & Montana R. Co. v. Bellingham Bay & Eastern R. Co., supra. It is, therefore, held here that the petitioner may invoke the power of eminent domain to acquire a longitudinal part of claimant’s right of way if the showing as to the necessities of the two companies in the interest of the public service is sufficient to warrant it.
The petitioner argues that the place where it seeks to condemn is within a canyon, pass, or defile within the meaning of the act of Congress of 1875. Stat. at Large, ch. 152, p. 482. Section 2 of said act provides that a railroad company whose roadbed passes through a canyon, pass, or defile “shall not prevent any other railroad company from the use and occupancy of the said canyon, pass, or defile, for the pur
At this point it is well to notice the contention of the petitioner, made in its brief, that it should not be required to pay the claimant any compensation for the appropriation which it seeks, if the appropriation shall be allowed. This contention is based upon the theory that the canyon act of 1875 applies to this situation, and that the absolute right to a common occupancy exists by reason thereof. From what was said in the last paragraph above it will be seen that the petitioner’s contention in this respect cannot be sustained. If appropriation is made, the case belongs to the ordinary class of cases where mere topographical necessities make the appropriation of a part of the right of way necessary, but not
The claimant contends that a sufficient showing of necessity has not been made to authorize the condemnation of any part of its right of way. The record of the evidence is very extensive, and it is as impracticable as it is unnecessary to discuss the evidence in detail. It appears, however, that the Yakima river rises in the Cascade mountains and flows south and east, entering the Yakima valley on the north through Selah gap, and passing out at the south through Union gap. Ahtanum creek, flowing from the northwest, empties into the river just above Union gap, and through this gap pours the accumulated drainage of these two streams. The gap itself, as heretofore stated, is formed by the converging spurs of two ranges of mountains, and on the west side at the place in controversy, the mountain rapidly ascends from the bench occupied by claimant’s track near the river bank. It is contended that petitioner can construct its line on the east side of the river. To do so, however, involves crossing and bridging the river twice, if the road shall first pass through the Yakima reservation on the south and then reach the city of North Yakima on the north, as is desired in order to carry out the purpose of serving the public. Furthermore, construction on the east side would not only involve a very much greater expenditure of money, but in addition to the hazards from two bridges crossing a swift mountain stream, the line would necessarily run over low-lying lands which are much flooded with water and in times of high water are swept with currents that would make the necessary substructure unsafe and the operation of trains thereon dangerous. It is also contended that,
The court did not find that the petitioner is entitled to condemn the tract as described in the petition, but found that it should be awarded a strip farther removed from claimant’s roadbed, so that claimant may have ample room to construct another track. It was found that a double track line at this place will answer all the present and future necessities of
In order to leave claimant room for an additional track to the west of its present track, the court established petitioner’s line further up the mountain side. It was shown that claimant contemplates raising its grade at this place from about ten to fourteen feet, conforming to a general system of changing its grades in the locality. The court provided that the easterly boundary of petitioner’s location shall be forty-five feet to the west of the center line of claimant’s present track, provided that claimant shall raise its grade as aforesaid within one year after the petitioner shall remove the public highway from that place. Otherwise the easterly boundary of petitioner’s location shall be twenty-five feet to the west of the center line of claimant’s present track. It appears that, by agreement between the petitioner and Yakima county, the petitioner is to take care of the highway and relocate and reconstruct it so that neither railroad will interfere with it. The court further provided that the petitioner shall remove this highway within six months from the final adjudication of this action or suffer a dismissal. Both parties seek modifications of the order of the court. We think it should be modified. It ■was found that the petitioner can reasonably locate and operate its line within territory forty-five feet to the west of claimant’s track, and that the said forty-five feet is necessary
With regard to petitioner’s construction before claimant’s grade may be raised, it is sufficient to say that the profile of claimant’s grade revision was submitted at the hearing of this case, for the accuracy of which claimant must be bound and responsible under such circumstances and assurances. The petitioner can proceed with its own construction, having reference to that profile if it becomes necessary to have regard to claimant’s future grade. We also think the provision with reference to petitioner’s removing the highway should be modified. The purpose of requiring the early removal seems to have been to prevent the highway from interfering with the raising of claimant’s grade, but inasmuch as claimant objects to a time limit for doing that work, there seems to be no good reason for requiring petitioner to so soon remove the road, unless the necessity therefor shall arise. We therefore think the order should be modified to the effect that petitioner shall remove the highway within six months after it shall receive written notice from the claimant company to do so, the petitioner, however, having the privilege to remove it sooner if it shall voluntarily choose to do so.
The case is remanded with instructions to modify the order
Crow, Rudkin, Dunbar, and Root, JJ., concur.
Fullerton and Mount, JJ., took no part.