State ex rel. B. Schade Brewing Co. v. Superior Court

Citations

• 62 Wash. 96
• 113 P. 576
• 1911 Wash. LEXIS 655

Syllabus

<p>Eminent Domain — Property Subject — Streets—Franchise. A railway company cannot condemn from abutting lot owners the right to maintain tracks in a city street without a valid franchise from the city to the use of the street.</p> <p>Same — Extent op Power — Statutes—Construction. Rem. & Bal. Code, §§ 8739, 8740, granting to -railway corporations the right of eminent domain, do not authorize condemnation of land held in trust for the public as a city street, since the law must be construed to relate to private property only, in the absence of an express or implied authority to take public lands.</p> <p>Same — Application op Statute. Rem. & Bal. Code, §§ 5717, 5718, in the act conferring the right of eminent domain upon corporations organized for the construction of any railway, macadamized road, plank road, clay road, canal, or bridge, and which authorize any company “herein mentioned” to appropriate any part of a public road or street, upon terms to be agreed upon by the county commissioners .or city authorities, if the parties can agree on the terms on which the same may be appropriated, used or occupied, and if unable to agree, then such corporation may appropriate so much as may be necessary without any such agreement, do not authorize a railway company to appropriate a part of a city street; but the sections apply only to road and toll companies occupying the street with the public, in view of Id., § 5719, which provides that where such highways are taken by agreement with the local authorities, the corporation may place gates thereon and receive such tolls as the local authorities consent to, and if appropriated without such agreement, no gates or other obstructions shall be placed on the public roads or tolls charged.</p> <p>Municipal Corporations — Streets — Railroads — Obstructions and Use — Power of City — Statutes—Construction. The right to occupy a public street to the exclusion of the public cannot be granted to a railroad company by a city, under Rem.