, 1892-05-14
EMINENT DOMAIN.
The Union Paeifics Right-of-WaY
in Question.

"A decision by Judge Robinson ia
the Case OF the Electric Rail-
way The injunction OF tine up. Il
r. $. Co., Sustained.
Judge Robinson in the superior court
this morning handed down the following:
This complaint shows that all the initia-
tory steps required by our statute were
taken by plaintiff. The directors res
olutlon designating the route proposed
through the various counties of the state,
properly certified, was filed and recorded
n the state secretary's office, August 28,
1880, and the maps and profles on Septem-
Der 3, thereafter. The line Immediately
surveyed, located and staked out upon the
ground the right of way generally Secured
and hundreds of thousands expended in
purchasing, condemning and grading such
line, but a strip of few rods in length, at
the point now in dispute, between the
north and south ends of the Tumwater
tunnel, was neither purchased nor con
demned. That plaintiff has expended
large sums in excaYating said proposed
tunnel, but has been temporarily unable
to PROJECT Its said tunnel, owing to shifting
sands and inadequate machinery" but
intends at an early day. to complete the
same or make an open cut at this point 1t
is alleged that the defendant, the street rail
way company has entered upon this pOr-
tlon Of this Fight-of-way and are building a
line OF street railway thereon without au-
thor1ty or license from the railroad COM
pany, and that if permitted so to do, the
plaintiff will be unable to build or operate
railroad upon such route to its irreper-
able injury. The defendant questions the
suthcleney Of the complaint upon the
theory that this plaintiff has no right to
TINS strip Of its route, until it has secured
the same by purchase or condemnation.
That the location of the route, etc., gives it
no preference right, and so far as | am
aware, this question has never been de-
elded by the courts of this state.
The right to locate lines or routes, has
by the legislature, been left wholly to the dis
cretlon OF the railroad company. Objection
to It's choice of place or location is fruitless
II the line is located through your front
yard or your house, no matter how lovely
or valuable to you as home,
yen are powerless to do any
compensation" for the taking" of such
strip and the damage" to the remainder.
AND when the steps required by the stat-
ute have been taken, to-Wit, the filing of
the maps and protles and the stalking out
OF the line upon the ground, in my judg-
ment 1T has acquired first right to CON
struct railroad thereon, free from inter
ference from any one, and it has a reason
able time in which to perfect that right by
purchase or condemnation and thus is its
right ripened into title for corporate pur-
poses. Yhis right is vested and conclu-
slye, but not to the land, as against the
owner, but to construct and operate its
railroad on the route adopted, subject, of
course, to the right of all others entitled
to exercise the right of eminent domain,
put the right to so use must be established
IN the manner provided by law
further hold that the owner of the
land cannot defeat this prior right by deed
ing the land including the strip or right
ot-Way to some other company desiring to
occupy or cross any portion Of the line.
These locations are made at great expense,
and 1T requires time to perfect such rights,
and 1t would be inequitable and far from
common sense, to hold tanotherrailroad
might step in and by purchasing strips here
and there, even for alleged crossings, Sc
cure rights against the original locator and
thus compel the diligent company to aban-
don Its line and locste some other route.
II our street railway has right to occupy
plaintiffs Is right-of-Way at given point on
a grade, say, three feet higher than that es
tabllshed by the plaintiff, another company
has the same power to occupy portion at
at a point, say few hundred feet north oI
south on grade three feet below the grade
established by plaintiff, and thus make il
impossible for the railroad to adjust
lCs grade to correspond to both. do not
mean to say that this street railway has nc
right to cross plaintiffs right-of-Way, but
1t must do so in a manner not to interfere
with the established grade of plaintiff, OF
its rights, and after establishing its right to
90 50, and paying the damages, if any, it
occasions thereby. This prior right on the
part of the plaintiff may of course be lost
by neglect to perfect its right and construct
Its line within a reasonable time, but that
does not appear here.
The demurrer is overruled and the mo-
ton to set aside is denied. But the plain
tiff will be required to file new bond in
the sum OF $4,000. ]. w. ROBINSON,
May IA, 1892. Judge.