State ex rel. Union Lumber Co. v. Superior Court , 70 Wash. 540 ( 1912 )

Parker, J.

(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 the overhead crossing and approaches thereto, I am of the opinion is not such payment to the lumber company for the taking and damaging of its property as is contemplated by the constitution. The lumber company is not thereby receiving full compensation at the time of the taking and damaging of its property; but of necessity it must depend upon the railway company maintaining overhead crossings and approaches thereto in the future. Instead of receiving full compensation before its property is taken, the lumber company is being compelled to accept the obligation of the railway company to maintain the overhead crossing and approaches thereto in the future, in lieu of a part of the compensation which the constitution guarantees shall be paid before the taking. This is not a mere reservation of a right in the lumber company, but is also an obligation calling for a continuing future service to be rendered by the railway company to the lumber company, which I think is not different in principle from what it would be were it a money obligation to be paid in the future after the taking. I therefore dissent.