32 Wash. 586 | Wash. | 1903
This is an application for a writ of certiorari to review the judgment of the superior court of Skagit county dismissing the petition of the Samish itiver Boom Company to condemn-certain lands situate at or near the mouth of the Samish river, in said county. The sufficiency of the petition is not questioned. It is in form and substance the usual petition in condemnation cases with the additional allegation that the petitioner is, and for a long time has been, in possession of and using the lands therein mentioned for booming purposes. The respondent answered, denying the right and the necessity’ of condemnation, and alleging, in substance, that it purchased the land in controversy from the state of Washington for booming purposes, that the possession of petitioner was illegal and adverse, that the petitioner was estopped by its conduct from claiming the right of a condemnor, and that respondent would have used the lands in question for booming purposes had it not been kept out of possession of the same by petitioner. After hearing and considering the testimony introduced by the respective parties, the court denied the right of the petitioner to condemn the lands described in the petition, refused “to call a jury to assess the compensation and damages to the respondent for appropriating such property,” and dismissed the petition at the cost of petitioner. The petitioner thereupon appealed to this court, but the appeal was dismissed on the ground that the order of the court refusing to call a jury was not reviewable by appeal.
The petitioner, Samish Itiver Boom Company, was organized and incorporated as a boom company on March 13, 1900, under laws of this state relating to the organization, management, and control of such companies; and,
Our statutes authorize the incorporation of boom companies, and prescribe their powers and duties. They have power to acquire and 'hold, by lease or purchase, and to use and transfer, all such property as shall be necessary for carrying on the business of such corporations. They also have the right to appropriate land, shore rights, and other property necessary for corporate purposes whenever they are unable to agree with the owners of the same as to the amount of compensation to be paid therefor, and such compensation may be assessed and determined and the appropriation made in the manner provided by law for the appropriation of private property by railways. Bal. Code, § 4378. It was the duty of the superior court, under our statute 'relating to eminent domain, at the preliminary hearing of the petition, to direct the sheriff to
It seems to be claimed, however, by respondent, that the fact that the petitioner has extended its works further down the river than they were at first is evidence of bad faith on its part. But we are of the opinion that that fact is not sufficient to establish bad faith, unless we concede— which we do not — that petitioner had no discretion whatever in the matter of selecting the location of its business. It is evident that, if the petitioner is entitled to any benefits or privileges at all by virtue of its franchise, it has at least the right to place the necessary appliances and to carry on its business, if practicable, in and on the Samish river (a part of the navigable waters of the state), without paying any one for such privilege. Of course, the state did not attempt to sell the water flowing in the river, or the land covered by it, and the respondent does not claim
“But the general rule maintained by the petitioner [for a writ of review], and the authorities supporting the same, is not so applied as to prevent one railroad from taking the property which is not in use for railroad purposes, and not necessary for the corporate franchises. ” •
Some of the leading cases were there reviewed and quoted from, and we are fully satisfied with that decision. Among other cases announcing the same doctrine, and not specifically referred to in that opinion, is that of Butte, A. & P. Ry. Co. v. Montana U. Ry. Co., 16 Mont. 504 (41 Pac. 232, 31 L. R. A. 298, 50 Am. St. Rep. 508), in which the question under consideration is ably and elaborately discussed by the supreme court of Montana.
It is further contended by the respondent that the petitioner has not in this instance shown any necessity for the taking of the particular lands which it seeks to appropriate, as it appears that there is other land available, although perhaps not so convenient for its purposes, and it is argued that the mere matter of convenience cannot be considered. It is true that the petitioner cannot condemn this property in the absence of any necessity therefor. But the word “necessity,” as used in the statute, “does not mean an absolute and unconditional necessity, as determined by physical causes, but a reasonable necessity, under the circumstances of the particular case, dependent upon the practicability of another route [here another location], considered in connection with the relative cost to one, and probable injury to the other.” Mobile & G. R. R. Co. v. Alabama M. Ry. Co., 81 Ala. 508 (6 South. 406), cited
“It may he observed generally that ‘necessary/ in this connection, does not mean an absolute or indispensable necessity, but reasonable, requisite, and proper for the accomplishment of the end in view, under the particular circumstances of the case.” Butte, A. & P. Ry. Co. v. Montana U. Ry. Co., supra.
“It is not a question whether there is other land to be had that is equally available, but the question is whether the land sought is needed for the construction of the public work.” Postal Tel., etc., Co. v. Oregon Short Line R. R. Co., 23 Utah, 474 (65 Pac. 735) ; 10 Am. & Eng. Enc. Law (2d ed.), pp. 1057-8.
We think that, upon the facts and circumstances appearing in the case, the petitioner has shown a “reasonable” necessity for the condemnation of the land it seeks to appropriate. If, as respondent suggests, it would have been equally as convenient for petitioner to have selected some other place of business in the first instance, why may not the respondent now select, without special inconvenience, some other location for its business ? It is evident that both of these corporations cannot carry on their corporate business at the same place at the same time. Both of them desire the same location, and in such cases the following is said to' be the rule:
“When different corporations desire the same location, the one that is prior in point of time is also prior in point of right, and the first location, if followed by construction, operates to secure the prior right.” Mills, Eminent Domain (2d ed.), § 47.
It is contended, however, by the respondent, that, even if priority of location and occupation give priority of right, it can only be where they are made for the express pur
It is conceded in the brief of counsel for the respondent that the petitioner has pursued the proper remedy in this instance, and we have therefore treated the application for the writ of certiorari as granted, and have directed our attention solely to the merits of the case presented by the record. And our conclusion is that the petitioner is entitled, under the law and the evidence, to the relief demanded. The order and judgment of the court below are therefore reversed, and the cause remanded, with directions to cause a jury to be summoned to ascertain and assess the damages which will result to the respondent by reason of the appropriation by petitioner of the lands described in the petition.
Fullerton, O. J., and Mount and Dunbar, JJ., concur.