70 Wash. 540 | Wash. | 1912
Lead Opinion
Relator operates a logging railway in connection with its mill, which crosses the right of way located by the respondent railway company, upon which it proposes to construct its new four-track line of road, known as the “water line,” and to that end proposes to condemn relator’s right of way at the point of intersection. The respondent, after setting forth in its petition the description of the land it seeks to appropriate, the grades of the two lines of railway, the configuration of the ground at and near the intersecting point, and the situation as to grade, overhead and underhead crossings with relation to operative conditions and matters of public safety, recites:
“That there exists a reasonable necessity for the condemnation of the right to cross said lands at grade, and that the tracks and logging road of respondent be elevated upon a trestle and fill over the tracks of petitioner’s proposed line. Petitioner proposes to elevate said tracks, at its own expense and under a plan whereby the grades on said overhead crossing will be identical with the grades now existing in said logging road, and without any damage or inconvenience to respondent whatever; that it is entirely practicable so to elevate said logging railroad over petitioner’s proposed line of road, and the same can be done without interfering with the continuous operation of the said line, and when done said logging railroad will be in every respeet as safe and convenient to operate as at the present time and no injury whatever will thereby result to respondent. . . . and said public interests and necessities imperatively require the construction of petitioner’s line at grade and the elevation of respondent’s said railroad as proposed.”
In due time the matter was brought on for hearing, for the purpose of obtaining a decree of public use and appropriation, and the court, after hearing evidence upon the matters set
“It is further ordered and decreed that petitioner’s said appropriation of said land is upon condition and subject to the obligation by petitioner to construct and maintain at its own cost and expense, so long as the same shall be used by respondent, an overhead crossing on a fill and trestle for the use by respondent in the operation of its certain logging railroad mentioned in said petition, and the appropriation by petitioner of said premises and of respondent’s interests therein is subject to the right of respondent to operate its said logging railroad as long as it shall see fit to do so, over and across said premises on said fill trestle to be constructed and maintained by petitioner for respondent’s use as aforesaid in the operation of its logging railroad.”
Relator took exceptions to the entry of this decree and to the evidence upon which the quoted provision is based, and now presents its exceptions under a writ of certiorari, asking that they be sustained and the decree vacated.
The main suggestion of error is lack of power in the court to provide for- an overhead crossing, and the fact that, while relator’s right of way is only fifty feet wide, to provide for the proposed fill will require a base of seventy feet, necessitating the acquirement by petitioner of an additional ten feet on each side of relator’s right of way, which is not sought in this proceeding, and which if acquired by petitioner, must be by purchase, or in some new and independent proceedings. Objection is also made to the fact that the decree is not accompanied by plat, design, or specifications showing the exact character of this proposed fill.
The first objection is the most serious one. We have concluded, however, to overrule it. Petitioner has the undoubted right to condemn a crossing of relator’s road under Rem. & Bal. Code, § 8736. The right to condemn this crossing carries with it the right to condemn a particular crossing* and have it determined that such particular crossing is a public use, and that necessary lands may be appropriated therefor.
That no specifications accompany the decree is no objection. The decree determines only the legal right; it does not attempt to indicate the facts to be determined before that right can be exercised. That inquiry and ascertainment may be left to the trial, and the jury can there determine the damages to be paid under a particular and designated use, to be shown by plats, designs, or other appropriate specifications,
These considerations lead us to sustain the rulings complained of, and the decree is sustained.
Mount, C. J., Crow, and Chadwick, JJ., concur.
Dissenting Opinion
(dissenting) — If the railway company proposed to condemn the right of the Union Lumber Company to maintain its logging road at the present grade where the railway company is proposing to fix the grade of its tracks, reserving to the lumber company the right to maintain an overhead crossing of sufficient height not to interfere with the operation of the railway, I would have no trouble in agreeing with the majority opinion, under the rule announced in Spokane Valley Land & Water Co. v. Jones & Co., 53 Wash. 37, 101 Pac. 515. But since the decree of the superior court provides for something more than this reservation of right in the lumber company, by imposing upon the railway company the duty to construct and maintain for the lumber company’s use the proposed overhead crossing and approaches thereto for some considerable distance on either side of the railway and beyond its right of way, it seems- to me that the lumber company is being required to submit to the taking of its- property by eminent domain proceedings without “just compensation having been first made or paid into court” for it, as provided by § 16, art. 1, of the state constitution. The obligation which is here sought to be put upon and assumed by the railway company, to maintain for the use of the lumber company