46 Wash. 516 | Wash. | 1907
This case is presented here upon certiorari to review an order made in condemnation, adjudging certain lands necessary for the use of respondent railway company. The record show’s that the respondent, Chicago, Milwaukee & St. Paul Railway Company, on April 3, 1907, filed a petition to condemn certain lands in King county for a right of way for raihvay purposes. The petition alleged all the facts necessary to authorize the condemnation. The relator appeared to that petition and answ’ered, alleging in substance that the relator is a railroad corporation engaged in carrying passengers and freight for hire, and that it had appropriated a portion of the lands claimed by the petition for a public use, and was and is occupying the same with a railroad. It also alleged
Upon the trial of the issues made by the pleadings, the facts appeared in substance as follows: The relator is a domestic corporation. One of its powers defined by its charter is to build, operate, and maintain railroads in King county, and carry freight and passengers over the same for hire. It owns and operates sawmills at Kent, its principal place of business. It also owns large tracts of timber lands in King county along Cedar river.
The relator contends, first, that, because it is a public service corporation, the respondent company is not authorized to condemn any part of relator’s railway. The record in this case is convincing that relator’s railroad is in no sense a public service road. It is true, the articles of incorporation recite that one of the purposes of the Kent Lumber Company is to construct railroads and to carry freight and passengers thei’coxx, and it is true that the corporation has built about six miles of road, includixxg side tracks, through a timbered section of country; and there xvas also evidence to the effect that relator xvas xxulling to carry freight and .passengers for the public for hire. Bxxt it xvas also shown that there xvas no sxxbstaxxtial equipment for such service. The Kent Lumber Company xnaintaixxs no statioxxs, and xxo schedules for train service, axxd xxo rates for freight or passexxger traffic. The road xvas so located that there is no public busixxess tributary to it, and
Relator also contends that respondent might have located its right of way at some place other than the place selected, and some evidence was introduced to this effect. But the term “necessity,” as used in the statute, does not mean an absolute necessity and that there shall be no other place for the location of the road, but means a reasonable necessity depending upon the circumstances of the particular case. Samish River Boom Co. v. Union Boom Co., 32 Wash. 586, 73 Pac. 670; 2 Lewis, Eminent Domain (2d ed.), § 393. We think such necessity is shown here.
Relator also contends that, because no station will be permitted and no traffic received by the respondent railway company for a distance of some ten or twelve miles along the Cedar river, therefore the enterprise is not a public use within this limited territory, and that the right of eminent domain should be denied. It was shown that this condition was demanded by the city of Seattle and accepted by the respondent
It is also contended that the respondent railway company is not authorized to appropriate this land, for the reason that it has already been appropriated by the city for a pole line for the transmission of electricity to said city and for the further purpose of protecting its water supply. We may assume for the purposes of this case, without deciding, that relator can raise these objections. It appears, that the city has granted its permission for a right of way to respondent company; that the city has power to acquire property or to dispose of the same as the interests of the same require. . Pierce’s Code,
We find no error in the record. The order of the lower court is therefore affirmed.
Hadley, C. J., Dunbar, Root, Fullerton, Crow, and Rudkin, JJ., concur.