State ex rel. Union T. & S. Bank v. Sup'r Ct., 84 Wash. 20,

 20    STATE EX REL. UNION T. & S. BANK v. SUP'R CT.
                Opinion Per PARKER, J.           84 Wash.

      [No. 12421. Department One. February 2, 1915.]
     THE STATE OF WASHINGTON, on the Relation of Union

Trust & Savings Bank et al., Plaintiff, v. THE SUPERIOR
      COURT FOR SPOKANE COUNTY et al., Respondents. «1»

      STATE EX REL. UNION T. & S. BANK v. SUP'R CT.      21
 Feb. 1915          Opinion Per PARKER, J.

Traction Company, organized in 1908, which had built and was
operating street railway lines in Spokane; the Coeur d'Alene
& Spokane Railway Company, organized in 1902, which had
built and was operating a railway line to Coeur d'Alene,
Idaho, and beyond; the Spokane & Inland, organized in 1904,
which was building and had partially in operation railway
lines in the Palouse country; and the Spokane Terminal
Company, organized in 1905, which owned the terminals in
Spokane used by the other companies. All of these
properties were operated electrically. The relator has a capital
stock of $10,000,000 and a property investment of
approximately $25,000,000. It acquired from its predecessor a
power site on the Spokane river known as the "Nine Mile"
site. In 1906, it acquired a power site between the city of
Spokane and the Nine Mile site, known as the "Bowl and
Pitcher" site. With the Bowl and Pitcher site, it acquired
a light and power franchise theretofore granted by the city
of Spokane. It paid $50,000 for the power site and
franchise. Neither of the original companies owned the electric
power for the operation of its property. Each thereof had
a separate contract for electric power with the Washington
Water Power Company, expiring in 1916. The relator took
the properties subject to these contracts.

In April, 1908, the relator entered into a contract with
the Washington Water Power Company in lieu of the several
separate contracts of its predecessors, whereby it agreed
to take the amount of power covered by their contracts until
the completion of its Nine Mile plant then in process of
construction, and to take thereafter until October 12, 1916,
3,800 horse power. It was agreed that neither the relator
nor the three original companies would, prior to October 12,
1916, engage in the sale of electrical power for light or power
purposes within the city of Spokane or in the Coeur d'Alene
mining district, Idaho; that, thereafter and some time in
1908, the relator completed its Nine Mile power plant, which
furnishes a maximum of 15,000 horse power, at a cost of

 22    STATE EX REL. UNION T. & S. BANK v. SUP'R CT.
                Opinion Per PARKER, J.           84 Wash.

approximately $1,500,000. It commenced the construction of
this plant in 1906. The relator owns and operates a street
railway system in Spokane, and interurban lines running into
various points in Washington and Idaho. It has a total
urban and interurban mileage of 290.94 miles, all of which
it operates by electricity. It uses a maximum of 8,900 horse
power in the operation of its railway system, and furnishes
2,600 horse power for irrigation enterprises, making a total
of 11,500 horse power devoted to a public use. When its
contract with the Washington Water Power Company expires
in 1916, it will not have sufficient power for these uses.
For some time prior to the commencement of the work on the
Nine Mile plant in 1906, the relator was considering the
relative feasibility of the two sites, and hesitating as to which
site it should first develop.

The respondent was incorporated as a public service
company in 1913, with a capital stock of $200,000 fully
subscribed. Between that date and September 80, its
stockholders conveyed to it certain overflow and water rights on
the banks of the Spokane river for a consideration of
$200,000. They took stock to the extent of $142,500 and placed
the balance of $57,500 in the treasury. The stock is
assessable to the extent of twenty-five per cent of its par value.
Some of the respondent's land is above and some be]ow the
Bowl and Pitcher site which it seeks to condemn. The
respondent's proposed power plant would create a lake about
seven and one-half miles in length with the relator's land
near the center. It cannot develop its plant without
acquiring the relator's land. In January, 1914, the respondent
commenced work at its dam site. On March 20, its trustees
directed that the construction work should be prosecuted
with diligence. In April, it began certain condemnation
proceedings against other parties. In May, it made a tentative
arrangement with the Spokane & British Columbia Railway
Company to furnish it electric power. It expended before
the hearing of this cause several thousand dollars in the

      STATE EX REL. UNION T. & S. BANK v. SUP'R CT.      23
 Feb. 1915          Opinion Per PARKER, J.

prosecution of its proposed enterprise. The respondent
desires to construct a hydro-electric plant at its site on the
Spokane river below the Bowl and Pitcher site. The plan
which the respondent proposes to carry out would cost about
$1,500,000.

The relator acquired the Bowl and Pitcher site in
anticipation of its future needs; that is, it foresaw that, within a
reasonable time, it would require the power which the two
sites would develop to meet its needs in the operation of its
system in the progress of its anticipated expansion, and in
furnishing power for public use as an auxiliary to the full
development of its system. Its good faith in acquiring and
holding the Bowl and Pitcher site is shown by its several
resolutions between April, 1906, and October, 1906. That
it intends to develop this site is shown by its resolution of
April 15, 1914, wherein it was resolved:

"That for the purpose of developing electric power to be
used for the operation of its own and other railway lines and
to enable this company to utilize its franchise in the city of
Spokane and in other cities and towns where it may now have
or hereafter acquire franchises for the disposal of electric
current for the public, that the company with all convenient
dispatch proceed to construct a dam and power plant on the
Spokane river,"
upon the lands in controversy. It was further resolved that
the president of the company,

"Be and he is hereby authorized and directed to cause the
necessary surveys to be made and plans to be drawn for the
construction of a dam and power plant, to acquire such
additional lands and such flowage rights as may be necessary
for the proper development of electrical power . . . to
make such financial arrangements as may be necessary for
the construction of the plant and the development and
utilization of electrical power thereat, to enter into any and all
necessary contracts for construction, machinery and
additional engineering . . . and to do any and everything
necessary or desirable for the construction of a power plant
at the point aforesaid, and the development and utilization
of electrical power thereat."

 24    STATE EX REL. UNION T. & S. BANK v. SUP'R CT.
                Opinion Per PARKER, J.           84 Wash.

It was further resolved that he should apply to the
Federal government for flowage rights upon such of the Fort
Wright grounds as the engineer's report should show to be
necessary in the development of its plant, and apply for and
obtain additional franchises from counties, cities, and towns
which may be necessary or convenient in the utilization of
the electric power to be developed, make contracts with
municipalities or railway companies for the disposal of any
power not needed for the purposes of the company, for
public purposes, and execute in the name of the relator all
contracts proper for the complete execution of the powers
granted.

Mr. Wickersham, the relator's electrical engineer,
testified:

"To sum it up, however, I might say that the average
increase for each year from 1909 to 1914 has been about
20 per cent a year, and on that basis we assume that five
years will double the capacity of the present load. That has
been checked by checking each individual consumer and
analyzing the possibilities of his plant and considering our
own requirements, without considering any extensions or any
natural reserve that a power company should carry, and also
taking over the Washington Water Power load, and we are
convinced after the analysis that by the year 1913 the
Inland Company will have to supply a load of approximately
25,000 horse power. Should any additional extensions be
made, or we have the opportunity to sell power in Spokane,
as we will after the year 1916, or receive larger consumers
than we know of now, we may have to supply 8,000 to 10,000
horse power more. That is a reserve that any power
company for its own safety should provide sufficiently far ahead
of the actual demand for the power, so that in the year 1920
the Inland Company will be required, or should have to serve
its interests, at least 85,000 horse power, which is the
combined output of both the Bowl and Pitcher and the Nine Mile
plant."

Mr. Gilman became the relator's president in January,
1914. He testified that the board of directors had directed
the development of power at the site in controversy; that it

      STATE EX REL. UNION T. & S. BANK v. SUP'R CT. 25
 Feb. 1915          Opinion Per PARKER, J.

had the ability to do so, and that it intended to do so. He
further said:

"That for an electric system like ours the power is the
heart of the system, and if we are stripped of our ability
to produce power we are limited in our operations to the
power that we have at the present time so that when the
country grows - when the Palouse is cut up, for example,
and it is necessary to double track, or extend our lines as
the city grows, and we are required to extend our street car
lines, or to put more cars or more service on the present
lines, we will not have the ability to do so, because we will not
have the power."

It would take two years, that is two seasons of low water,
to complete the plant at either site. The relator cannot
complete the development of a plant at its site without acquiring
flowage rights for the back water. In this respect the parties
stand upon an equal footing.

Our statute, Rem. & Bal. Code, SS 925 (P. C. 171 SS 176),
provides that, before property can be taken for a public use,
two facts must be made to appear: (1) that the contemplated
use for which the property is sought to be appropriated
is "really a public use," and (2) "that the public
interest requires the prosecution of such enterprise." All
property is held subject to the power of the state in the exercise
of its sovereignty to appropriate it to a public use. Public
service corporations are only permitted to exercise the power
of eminent domain, an attribute of sovereignty, when the
public interest will be promoted. We have held that
property owned by a corporation and devoted to a public use
cannot be taken by condemnation except in special cases not
here present, to be used for the same purpose and in the same
manner. Samish River Boom Co. v. Union Boom Co.,
32 Wash. 586, 73 Pac. 670; State ex rel. Harbor Boom Co. v.
Superior Court, 65 Wash. 129, 117 Pac. 755; State ex rel.
Skamania Boom Co. v. Superior Court, 47 Wash. 166, 91
Pac. 637. We have also held that property owned by a
corporation "and not actually devoted to a public use" may be

 26    STATE EX REL. UNION T. & S. BANK v. SUP'R CT.
                Opinion Per PARKER, J.           84 Wash.

acquired by condemnation. Samish River Boom Co. v. Union
Boom Co., supra. The right to condemn in a particular case
depends upon all the attending facts and circumstances.
Samish River Boom Co. v. Union Boom Co., supra. It has
become the settled law of the state that a public service
corporation may acquire property by condemnation or
otherwise in reasonable anticipation of its future needs. When
property has been so acquired, it is deemed devoted to a
public use although not actually devoted to such use, until
there has been an abandonment of the intention so to use.
Nicomen Boom Co. v. North Shore Boom & Driving' Co.,
40 Wash. 315, 82 Pac. 412; State ex rel. Spokane Falls & N. R.
Co. v. Superior Court, 40 Wash. 389, 82 Pac. 417; Neiztel
v. Spokane International R. Co., 80 Wash. 30, 141 Pac. 186;
Spokane v. Merriam, 80 Wash. 30, 141 Pac. 358.

In the Nicomen Boom Company case, this court, speaking
through Judge Hadley, said:

"It is also held that the question of future needs of
railroad companies, in fulfilling their charter purposes and
performing their public duties as common carriers, is one which
should be given full consideration by a court before it
undertakes to deprive a company of any part of its right of way
in favor of another corporation. Such companies may
anticipate future necessities and may, for that purpose, hold
territory not in actual use to the exclusion of other companies."

In the Spokane Falls & N. R. Co., case, it was said by
Judge Dunbar, speaking for the court:

"It is true that the International railroad is not yet in
operation, but the testimony shows that a large portion of
the grading has already been contracted for, and that the
whole road will be in operation in the near future; that it
has traffic relations with the Canadian Pacific, and expects
to be in reality the western portion of a transcontinental
road. Although it is not yet in operation, companies of this
kind must procure grounds for terminal facilities before they
commence their operations. The necessity of the business
requires this, and, when once they make their calculations
to procure these facilities, which this company did at an

      STATE EX REL. UNION T. & S. BANK v. SUP'R CT.      27
 Feb. 1915          Opinion Per PARKER, J.

expense of $150,000 in purchasing this land, they will be
protected in those terminal rights to the same degree as will
a company which is already operating its roads."

In the Neitzel case, we said:

"A public service corporation may anticipate future needs,
and mere nonuser of a portion of its easements does not, of
itself, constitute an abandonment. Whether or not there has
been an abandonment depends upon the intention of the owner
of the easement. While such intention may be deduced from
long nonuser, the nonuse itself does not constitute an
abandonment, and does not of itself defeat or impair acquired
rights."

In the Merriam case, we voiced the same principle, saying:

"It was not incumbent upon the city to show an immediate
necessity for an immediate use. The showing of a reasonable
necessity for use in a reasonable time is all that can be
required. A municipal corporation has the same right to be
provident and forehanded in the acquirement of property
for a public use that a public service corporation has."

In State ex rel. Weyerhaeuser Timber Co. v. Superior
Court, 71 Wash. 84, 127 Pac. 591, we recognized the rule of
comparative necessity, saying:

"Whether the use is a public use, and whether the public
interest requires the prosecution of the enterprise, and what
lands etc. are necessary for the enterprise, are all matters
referred to the court for determination. Rem. & Bal. Code,
SS 925. From this results the doctrine which, for lack of a
better name, may be called comparative necessity. If by the
plan proposed the present and future public use and interest,
as now apparent from the evidence, are met, that is as far
as the court need now inquire."

The respondent has cited Tacoma v. Nisqually Power Co.,
57 Wash. 420, 107 Pac. 199, and Newell v. Loeb,
77 Wash. 182, 137 Pac. 811. In each of these cases the proceedings
were conducted under a different statute, as will appear from
a reading of the cases. In Roberts v. Seattle, 68 Wash. 573,
116 Pac. 25, the city condemned a strip of land thirty feet in

 28    STATE EX REL. UNION T. & S. BANK v. SUP'R CT.
                Opinion Per PARKER, J.           84 Wash.

width along the boundary of the University ground, for street
purposes. The statute authorized the proceeding and the
uses were dissimilar. In State ex rel. Milwaukee Terminal R.
Co. v. Superior Court, 54 Wash. 365, 103 Pac. 469, 104 Pac.
175, it was not shown that the defendant would need or use
the property in controversy for public purposes, within a
reasonable time. In North Coast R. v. Northern Pac. R.
Co., 48 Wash. 529, 94 Pac. 112, it was held that a portion of
a railroad right of way through a defile which could be spared
without material detriment, could be condemned where the
public interest required it. In all condemnation cases the
paramount consideration is the public interest, and to that
interest all rights must bow and all rules must bend. The
record shows that the relator acquired the property sought to
be condemned with the intention of devoting it to a public
use within a reasonable time; that it now intends to prosecute
the development of the power site with diligence and that it
has the means so to do. The purposes to which the parties
desire to devote the property are the same.

The judgment is reversed, with directions to dismiss.

MORRIS, C.J., CROW, and CHADWICK, JJ., concur.
                     ON REHEARING.
           [En Banc. June 12, 1915.]
-Opinion-

PER CURIAM. - Upon a rehearing En Banc, a majority of
the court adhere to the opinion heretofore filed herein. For
the reasons there stated, the judgment is reversed, with
directions to dismiss.