188 F. 363 | U.S. Circuit Court for the District of Eastern Washington | 1911
This is a proceeding to condemn certain real property for railroad purposes. The tract sought to be condemned lies immediately south of Ide avenue, in the city of Spokane, is approximately 1,100 feet in length, east and west, by 400 feet in width, north and south, and contains 11 33/100 acres. Ide avenue is a public street of the city, 50 feet in width, running south of and parallel with the tracks of the Great Northern Railway Company and about 100 feet distant therefrom, with a tier of lots used principally for warehouse purposes intervening. This tract, together with other lands, was acquired by the Great Northern Railway Company, or forks use and benefit, in the year 1896 or 1897; the date of the conveyance or the description of the other lands acquired not appearing in the record. It appears from the testimony, in a general way, that the lastd was originally acquired for Great Northern terminals in the city of Spokane; but, from the date of its acquisition until conveyed to the Spokane, Portland & Seattle Railway Company 11 or 12 years later, it was never used by the Great Northern Company for any public purpose, nor is there any testimony tending to show that that company intended to so use it within any reasonable period in the future, if at all.
In the year 1905 the Great Northern Railway Company and the Northern Pacific Railway Company organized the Spokane, Portland & Seattle Railway Company to construct a line of railway from the city of Spokane to the city of Portland by way of the Columbia river, for the purpose of relieving the congestion of traffic on the two old lines over the Cascade Mountains between Eastern and Western Washington. One-half of the stock in the new company is owned by each of the old companies, and the new company since its organization has been, and is now, under the joint management and control of the two parent companies. The new line to Portland was opened in the fall of 1908, and on or about the 11th day of November of- that year the president of the Great Northern Railway Company and the president of the Northern Pacific Railway Company took up the ques
In the early part of the year 1906, the North Coast Railroad Company was incorporated for the purpose of constructing a line of railroad between the cities of Spokane and Seattle, as well as branch lines between other points in the state of Washington. Some time prior to the 23d day of May, 1907, the tract in controversy was surveyed by the North Coast Railroad Company as a part of its terminals in the city of Spokane, and on the last-named date this survey was adopted by the board of trustees, and the proper officers of the company were authorized to acquire the land by purchase or condemnation. On the 24th day of September, 1907, the president of the North Coast Railroad Company informed the president of the Great Northern Railway Company of the selection of this tract, by letter, and took up with him the question of its purchase. On December 20, 1907, the president of the Great Northern Railway Company replied as follows:
“On September twenty-fourth lust you wrote me a letter regarding some property in Spokane. I held your letter until I could make an effort to as certain something definite as to the North Coast Railroad. Having been west and not having satisfied myself as to what interests you represent, 1 do not care to enter inlo any negotiations regarding any property. I always like to know what interests I am dealing with.”
On the 24th day of September, 1908, the president of the North Coast Railroad Company again informed the president of the Great Northern Railway Company that his company was ready to take up the question of the purchase of this property, and asked him to fix the price at an early day. lie was informed by the president of the Great Northern Railway Company in reply, under date of (October 1, 1908, that the matter had been referred to Mr. Gilman, one of the company’s attorneys at Seattle. The matter was then taken up with Mr. Gil-man, but nothing was accomplished through these negotiations. The present proceeding was thereupon commenced in the superior court of Spokane county on the 14th day of November, 1908, by the filing of a petition and a notice of lis pendens. On the 19th clay of December, 1908, the proceeding was removed to this court on the petition of the defendants, because of a diversity of citizenship. On the 8th day of March, 1909, the Spokane, Portland & Seattle Railway Company filed its petition in intervention in this court as the successor in interest to the Great Northern Railway Company, and asserted its right to retain the property by reason of its purchase from the Great Northern Railway Company and its subsequent adoption for railroad terminals in the city of Spokane.
Testimony was taken before Judge Whitson during April and May of 1909, and before the master in chancery during August of 1909; but no further steps seem to have been taken in the proceeding until
Before taking up the merits of the case, however, I will advert briefly to some of the preliminary motions and objections interposed and to the rulings thereon. •
Section 921, Rem. & Bal. Code, provides that any corporation authorized by law to appropriate land, real estate, premises, or other property, for right of way or any other corporate purposes, may present its petition to the superior court of the proper county, in which the land, real estate premises, or other property sought to be appropriated shall be described with reasonable certainty, setting forth the names of each and every owner, incumbrancer, or other person or party interested in the same, or any part thereof, so far as the same can be ascertained from the public records, the object for which the land is sought to be appropriated, and praying that a jury be impaneled to ascertain and determine the compensation to be made in money. The petition in this case alleged that the petitioner was authorized by law to appropriate lands, real estate premises, and other property, for corporate purposes, described the land sought to be taken with reasonable certainty, set forth the names of the owners and parties in interest as required, and the object for which the land was sought to be appropriated. If it be conceded that the statement of the object for
•‘No action sliall abate by the death, marriage, or other disability of the party, or by the transfer of any interest therein, if the cause of action survive or continue; but the court may at any time within one year thereafter, on motion, allow the action to be continued by or against his representatives or successors in interest.”
This section has been construed to extend to and include condemnation proceedings. California Central R. R. Co. v. Hooper, 76 Cal. 404, 18 Pac. 599; Bradley v. Northern Pac. Ry. Co., 38 Minn. 234, 36 N. W. 345.
In Thomas v. Railroad Co., 101 U. S. 71, 25 L. Ed. 950, Oregon Ry. Co. v. Oregonian Ry. Co., 130 U. S. 1, 9 Sup. Ct. 409, 32 L. Ed.
“It may be objected that there is no necessity for condemning the particular property, because some other location might be made or some other property obtained by agreement. But this objection is unavailing. Except as specially restricted by the Legislature, those invested with the power of eminent domain for a public purpose can make their own location according to their own views of what is best or expedient, and this discretion cannot be controlled by the courts.” 1 Lewis on Eminent Domain, § 893.
This rule prevails in this state, notwithstanding the fact that the question of necessity is submitted to and determined by the courts under the state statutes. Samish River Boom Co. v. Union Boom Co., 32 Wash. 600, 73 Pac. 670; State ex rel. Kent Lumber Co. v. Superior Court, 46 Wash. 520, 90 Pac. 663; State ex rel. Milwaukee Terminal Co. v. Superior Court, 54 Wash. 365, 103 Pac. 469, 104 Pac. 175.
I will say in conclusion that I find -from the testimony that there is reasonable necessity for the condemnation and appropriation of this property on the part of the petitioning company, and that the property is not exempt from condemnation by reason of anything contained in the petition in intervention or in the proofs offered in its support.
Let an order be entered accordingly.