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The purpose of this action was to acquire by condemnation a private way of necessity. After a hearing, the trial court entered a judgment sustaining the right to condemn. To review this judgment, the cause is brought here by certiorari.
The facts are substantially as follows: The relators are the owners of the NW
Upon the trial, the relators contended that, instead of following the divide and passing through the NW
There are three questions in this case: .(1) Was a way across the N% of Sec. 31 sufficiently practicable and available to the Coats-Fordney Logging Company to deny it the right to condemn a way of necessity across the land of the relators? (2) Was the fact that the SW^-of Sec. 8 was upon the east fork of the Wishkah river a sufficient reason to deny the right of condemnation so far as it pertained to reaching that particular tract of timber? (3) Does the law which gives the right to condemn a private way of necessity offend against the due process of law clause found in the 14th amendment to the Federal Constitution?
I. The relators claim that, instead of seeking to condemn across their land, the NW
The general rule is, that where a public service corporation is seeking to condemn land, that those invested with the power of eminent domain have the right in the first instance
“We believe that the correct construction of this statute is that those invested with the power of eminent domain have the right in the first instance to select the land which, according to their own views, is most expedient for the enterprise, and that it invests the court with the power to determine whether specific land proposed to be taken is necessary in view of the general location, and to finally determine the question of necessity for the taking of such specific land when there is evidence of bad faith, or oppression, or of an abuse of the power in the selection. Plainly, the selection by the condemnor is evidence of the highest character that the land selected is necessary for the enterprise, and in the absence of clear and convincing evidence to the contrary, it conclusively established the necessity. It is sufficient to make a strong prima facie case, but when convincing evidence is adduced, by the owner that the land sought is not reasonably necessary, and that a slight change of location to other of his land will equally meet the necessity of the taker and be of much less damage to the owner, then it is incumbent upon the taker to rebut such evidence, since the refusal to make such change, if unexplained would amount to oppression and be an abuse of the power. In re Field, 61 App. Div. 618, 70 N. Y. Supp. 677.”
The necessity being first shown, there seems no good reason why the rule of that case should not apply when the purpose of the condemnation is to acquire a private way of neces
But the relators claim that the respondents had a right by private agreement with the Weyerhaeuser Timber Company to cross the N% of Sec. 31. But we think the evidence does not go this far. It is true that one of the officers for the respondent company admitted that it had acquired the right through the S% of Sec. 31 from the Weyerhaeuser Timber Company without any difficulty, and that he presumed if they desired it that they could acquire a route through the N% thereof. The route which they had already acquired through the S% of that section was the one which, when extended, would cross the NW% of Sec.
II. If the SWl/4 of Sec. 8, which borders upon the east fork of the Wishkah river, was the only property to be reached by the proposed road, it might well be held that there was not a sufficient reason to justify the condemnation of a private way of necessity for a logging road, since from that particular tract there is an adequate outlet by water. The statute provides that when land is so situated with respect to other land that it is “necessary for its proper use and enjoyment to have a private way of necessity,” the right of condemnation exists. Laws of 1913, ch. 133, p. 412 (3 Rem. & Bal. Code, § 5857-1 et seq.).
The word “necessary” as used in the statute means reasonable necessity. Samish River Boom Co. v. Union Boom Co., 32 Wash. 586, 73 Pac. 670; State ex rel. Mountain Timber Co. v. Superior Court, 77 Wash. 585, 137 Pac. 994. In determining whether a reasonable necessity exists for the condemnation, it is necessary to look at the entire enterprise, rather than to its segregated parts. The Coats-Fordney Logging Company was conducting its logging operations by means of a logging railroad. To log in this manner, it was already equipped. Only one of the four tracts of land which it was seeking to reach was located upon the river. To sustain the right to condemn so far as it pertained to reaching the other three tracts of land, and to deny it as to this one, would not seem very reasonable. The SWy. of Sec. 8 was only one of the ten quarter sections included in the enterprise.
III. The relators’ brief shows an exhaustive and painstaking investigation into the question as to whether the state statute giving the right to condemn for a private way of necessity offends against the due process of law clause in the 14th amendment to the Federal constitution. Were the question an open one in this state, it would present an interesting problem. In State ex rel. Mountain Timber Co. v.
The judgment will be affirmed.
Cuow, C. J., Mount, Ellis, and Fullerton, JJ., concur.