ERROR TO THE SUPREME COURT OF THE STATE OF WASHINGTON
White, McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandeis, Clarke
MR. JUSTICE PITNEY delivered the opinion of the court.
The Coats-Fordney Logging Company, defendant in error, instituted a proceeding by petition in the Superior Court of the State of Washington for Chehalis County against Grays Harbor Logging Company and W.E. Boeing, wherein it sought to condemn and take certain of their lands situate in that county for the purpose of constructing and maintaining a logging railroad as a private way of necessity in order to bring its lumber to market. The proceeding was based upon the following provisions of the constitution and statutes of the State:
Section 16 of Article 1 of the constitution declares: "Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, and no right-of-way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, . . ." Under this constitutional provision the legislature passed an act (Sess. Laws 1913, c. 133, p. 412; Rem. & Ball. Ann. Code, §§ 5857-1, et seq.,) which provides that lands for the construction and maintenance of a private way of necessity may be acquired by condemnation, including within the term "private way of necessity" a right of way over or
through the land of another for means of ingress or egress and the construction and maintenance of roads, logging roads, tramways, etc., upon which timber, stone, minerals or other valuable materials and products may be transported and carried. The procedure is to be the same as provided for condemnation of private property by railroad companies. This refers us to Rem. & Ball. Ann. Code, §§ 921-931 (5637-5645), whereby it is provided, in substance (§ 921) that any corporation authorized by law to appropriate land for a right of way may present to the Superior Court of the county in which the land is situate a petition describing the property sought to be appropriated, setting forth the names of the owners and parties interested, and the object for which the land is sought to be appropriated, and praying that a jury be impaneled to ascertain and determine the compensation to be made in money; (§ 922) a notice of the petition stating the time and place where it will be presented to the court is to be served upon each person named therein as owner or otherwise interested; (§ 925) at the hearing, if the court be satisfied by competent proof that the contemplated use for which the land is sought to be appropriated is really a public use, or is for a private use for a private way of necessity and that the public interest requires the prosecution of such enterprise, and that the land sought to be appropriated is necessary for the purpose, the court may make an order directing the sheriff to summon a jury; (§ 926) at the trial the jury shall ascertain, determine, and award the amount of damages to be paid to the owners and other persons interested, and upon the verdict judgment shall be entered for the amount thus awarded; (§ 927) at the time of rendering judgment for damages, if the damages awarded be then paid, or, if not, then upon their payment, the court shall also enter a judgment or decree of appropriation, thereby vesting the legal title to the land in the corporation seeking to appropriate it;
(§ 929) upon the entry of judgment upon the verdict of a jury and award of damages the petitioner may make payment of the damages and costs of the proceeding to the parties entitled to the same by depositing the same with the clerk of the Superior Court, to be paid out under the direction of the court, and upon making such payment the petitioner shall be released from further liability, unless upon appeal the owner or other party interested shall recover a greater amount; (§ 931) "Either party may appeal from the judgment for damages entered in the superior court to the supreme court of the state within thirty days after the entry of judgment as aforesaid, and such appeal shall bring before the supreme court the propriety and justness of the amount of damages in respect to the parties to the appeal."
Plaintiffs in error opposed the petition for condemnation upon the ground, among others, that the Act of 1913 was contrary to the Constitution of the United States, and that petitioner sought to take their property for a private use and therefore without due process of law, in violation of that Constitution. After hearing testimony upon the question of necessity, the Superior Court entered an order of condemnation, and by the same order set the cause down for trial before a jury for the purpose of determining and assessing the damages and compensation. At this point, and before the cause could be brought to trial before a jury, plaintiffs in error applied for and obtained from the Supreme Court of the State a writ of certiorari for the purpose of reviewing the question of the constitutionality of the act and the right of petitioner to condemn their property for its right of way. The Supreme Court sustained the proceedings, 82 Washington, 503, and entered a judgment affirming the judgment of the Superior Court, and remitting the cause to that court for further proceedings. A writ of error was then sued out from this court under § 237, Jud. Code.
Defendants in error move to dismiss the writ of error on the ground that the judgment of the state court is not final. To this plaintiffs in error respond by saying that under the state practice the judgment of the Superior Court establishing the right of petitioner to acquire the property or right of way sought is final; that while an appeal will not lie from such a judgment to the Supreme Court, this is because the statutory provision for an appeal in condemnation cases is limited to the question of the amount of damages, and a general statute providing for appeals has been held not applicable to eminent domain proceedings, Western American Co. v. St. Ann Co., 22 Washington, 158; that because an appeal will not lie the Supreme Court has held that a writ of certiorari or review will issue to bring before that court for determination the questions of use and necessity, Seattle & Montana R.R. Co. v. Bellingham Bay & Eastern, R.R. Co., 29 Washington, 491; and that by repeated decisions of that court it has been settled that after an order adjudging necessity has been made and a trial had to determine the amount of damages an appeal taken therefrom raises no question as to the right to condemn, but is confined to the propriety and justness of the amount of damages; Fruitland Irrigation Co. v. Smith, 54 Washington, 185; Calispel Diking District v. McLeish, 63 Washington, 331; Seattle, Port Angeles & Lake Crescent Ry. v. Land, 81 Washington, 206, 209; State ex rel. Davis v. Superior Court, 82 Washington, 31, 34. In this state of the local practice it is argued that the judgment that has been entered should ...