127 Wash. 30 | Wash. | 1923
The relator, Eastern Railway & Lumber Company, seeks, in this court, review and reversal of an order of adjudication of necessity, rendered by the superior court for Lewis county, awarding to Susie A. Chatten and her associates, doing business under the name of Union Lumber Company, the right to condemn a private way of necessity for use as a logging road, over and across land in Lewis county belonging to Eastern Railway & Lumber Company.
Union Lumber Company owns and operates a large sawmill and logging plant in Thurston and Lewis counties. It also owns standing timber on sections 4 and 5, township 14 north, range 1 east, in Lewis county, aggregating some seventy-five million feet. It is to enable Union Lumber Company to log and remove this standing timber to market that this proposed right-of-way is sought by it. Union Lumber Company also owns a logging railroad extending over land which it has been logging lying to the north of and adjoining sections 4 and 5 above mentioned. Its easement right-of-way for this logging road expires on March 24, 1925, at or before which date it is required to remove its road from that land, and thereafter it will have no right or interest in that land. It is not practically possible for Union Lumber Company to log and remove its timber from sections 4 and 5 before the expiration of its easement rights in the land adjoining those sections upon the north. It has no other interest or easement rights in land enabling it to log and remove to market its timber upon sections 4 and 5.
The nearest point of Union Lumber Company’s logging road to the north boundary of sections 4 or 5 is about a quarter of a mile on the northerly slope of a ridge or divide that runs approximately along the north boundary line of sections 4 and 5, dividing the valley of Coal creek to the north from the valley of
The stream and valley of Coal creek run roughly from east to west, joining Hanaford creek near the north quarter corner of section 1, which is 1% miles west of the northwest corner of section 5. The present logging road of Union Lumber Company runs up Coal creek from the junction of the two creeks near this quarter section corner and has been used" to log the land north of sections 4 and 5. Hanaford creek runs westerly through the north half of sections 4, 5 and 6, and northwesterly through the northeast quarter of section 1, joining Coal creek near the north quarter corner of section 1, as we have noticed. The Eastern Railway & Lumber Company owns the north half of section 6 and the northeast quarter of section 1.
It is to acquire a right-of-way as a private way of necessity by Union Lumber Company over this land of Eastern Railway & Lumber Company, for a distance of approximately 1% miles along the valley of Hana-ford creek, that this proceeding was instituted in the
It is contended in behalf of Eastern Railway & Lumber Company that there is not here shown such a necessity for Union Lumber Company’s acquiring this proposed right-of-way as entitles it to acquire the land therefor by condemnation. If we were to consider the feasibility of the proposed route, as compared with the feasibility of a route over the ridge to the north of section 5, and assume that Union Lumber Company had the right of easement over the latter route for an indefinite period or for a period long enough to give it
But this record, we think, shows that Union Lumber Company does not have an easement right-of-way to sections 4 or 5 for such reasonable length of time as would enable it to remove its timber from those sections. So, in its last analysis, we have a case, in substance, wherein Eastern Railway & Lumber Company is insisting that Union Lumber Company acquire a right-of-way for the removal of its timber from sections 4 and 5 over a route other than the proposed route of some 1% miles up Hanaford creek over land of Eastern Railway & Lumber Company. It is a general rule of eminent domain law that the condemnor has a right to select the route it desires to acquire a right-of-way for, which selection will not be disturbed or interfered with by the courts except in case of a clear showing of bad faith on the part of the condem-nor in making such selection. This general rule was held to be applicable to the acquiring of private ways of necessity by condemnation as well as acquiring such rights-of-way for public use, in our decision in State
Some contention is made that the trial court erred to the prejudice of Eastern Railway & Lumber Company in permitting Union Lumber Company to prove upon the trial that it had options for the purchase of other lumber situated so as to make its removal practical by way of the proposed way up Hanaford creek. Even if this were error, we would not reverse the case or remand it for new trial for that cause alone, in the light of this whole record; since we would ignore it as we have done in reaching our conclusions. Besides, it is apparent that the trial court ignored this evidence in its final disposition of the case; for it appears in its findings and adjudication of necessity that the adjudication in favor of Union Lumber Company was for the express purpose of enabling it to remove and market its timber now standing on sections 4 and 5, no other timber being mentioned therein. To what extent it may have the right, in the future, to remove other timber over this proposed way of necessity, is a matter with which we are not now concerned.
We conclude that the order and adjudication of necessity here sought to be reviewed and reversed must be affirmed.
It is so ordered.