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Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1953 No. 497 -
Attorney General Don Eastvold


The state of Washington can condemn charter right of way of the Northern Pacific Railway Company upon showing a reasonable necessity therefor, provided it does not substantially interfere with the prior use.

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                                                                  March 18, 1953

Honorable W. A. Bugge
Director of Highways
Transportation Building
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 497

 Dear Sir:

             Your letter of February 28, 1953, requested our opinion as to "whether or not the state of Washington may condemn for highway purposes a portion of the Northern Pacific Railway Company's charter right of way which was granted to the railway company by Act of Congress of July 2, 1864."

             It is our opinion that the state of Washington may condemn for highway purposes charter right of way of said railway company.  However, in any action to condemn the railway right of way it will be incumbent upon the state to show a reasonable necessity for devoting the right of way to highway purposes and, further, that the right to condemn such property is being exercised so as not to substantially interfere with the prior use.


             The Thirty-eighth Congress of the United States in its first session enacted chapter 217 on July 2, 1864 (13 Stat. 367).  That chapter among other things granted a right of way from Lake Superior to Puget Sound to the Northern Pacific Railroad Company.  The Northern Pacific Railway Company is the successor in interest to the original grantee.  The Federal Government has been held to have a reversionary interest in a right of way granted by charter.   [[Orig. Op. Page 2]] Annotations 136, A.L.R. 315;G & R. G. R. Co. v. Mills, (1915) C.C.A. 8th, 222 F. 481; Noble v. Oklahoma City, (1935) 172 Okla. 182, 44 P. (2d) 135 (reversed in 1936, 297 U.S. 481, 80 L.Ed. 816, 56 S.Ct. 562).

             It would appear at this point that the state could not condemn charter right of way on the basis of the general rule which prohibits the state from condemning Federal land or easements across Federal land.  However, U.S.C.A., Title 43, section 912, disposed of the reversionary interest of the United States Government in any railroad company right of way in the event of abandonment or forfeiture by said railroad company.  We deem it useless to specify exactly who received the benefit of this act of disseizure.  It does, however, to all intents and purposes, remove the Federal reversionary interest as a factor to be considered.  Certain provisions of this act, it should be noted, are specifically in favor of highway construction.

             For some time there existed considerable confusion over whether the railroad company could dispose of charter right of way.  U.S.C.A., Title 43, section 913, specifically granted

             "All railroad companies to which grants for rights of way through the public lands have been made by Congress, or their successors in interest or assigns, are authorized to convey to any state, county, or municipality any portion of such right of way to be used as a public highway or street:  Provided, That except as provided in section 17 of Title 23 no such conveyance shall have the effect to diminish the right of way of such railroad company to a less width than 50 feet on each side of the center of the main track of the railroad as no established and maintained.  (May 25, 1920, c. 197, 41 Stat. 621)" (Emphasis supplied).

             The authority of the railroads to convey portions of their charter right of way to the stated grantees has, in our opinion, been beyond question since the passage of the statute just quoted.  The only change in the law since its passage appears to be a factor when the proposed improvement comes under the Federal Highway Act.  Such highways are commonly called Federal aid projects.  When such are being considered, U.S.C.A., Title 23, section 17, would control and the railroad company has the consent of the United States to convey to the highway department of any state any part of its right of way for other property in that state acquired by grant from the United States.  That statute was passed on November 9, 1921, section 16, chapter 119, 42 Stat. 216.  The last mentioned statute eliminated the requirement that the railroad retain right of way 50 feet  [[Orig. Op. Page 3]] wide on each side of the center of the main tract of the railroad, insofar as Federal aid projects are concerned.

             Our conclusion thus far is that the Northern Pacific Railway Company can convey the right of way in question to the state of Washington and, further, that there is no longer a question of Federal interest in the property involved.

             The question now resolves itself to this:  May the state of Washington condemn for highway purposes the property of a public service corporation when the said property is already devoted to a public use?  A number of Washington cases deal with this problem.  The cases cited below in turn make reference to most of the other Washington authority on this question.  InState ex rel. Columbia etc. R. Co. v. Superior Court, 45 Wash. 316, at page 320, the court stated in part:

             "* * * it has been held that one railroad company may appropriate the lands of another in this state where there is a necessity therefor, and where the land sought can be taken without material detriment to the established road.  * * *"

             State ex rel. Spokane Falls & N. R. Co., v. Superior Court, 40 Wash. 389, 82 Pac. 417; Seattle etc. R. Co. v. Bellingham Bay etc. R. Co., 29 Wash. 491, 69 Pac. 1107;Seattle etc. R. Co. v. State, 7 Wash. 150, 34 Pac. 551, 38 Am. St. 866, 22 L.R.A. 217.

             In State ex rel. Puget Sd. [[Sound]]etc. R. Co. v. Joiner, 182 Wash. 301, at page 302, the court stated:

             "It is also established by fundamental law, statute and decision, that property is not exempt from condemnation because it may have been previously dedicated, appropriated or devoted to public use.  Constitution, article XII, § 10; Rem. Rev. Stat., § 901 [P. C. § 7609].  Except where property devoted to a public use is sought for a superior public use, the right to condemn such property must be so exercised as not to substantially interfere with the prior use.  State ex rel. Columbia Valley R. Co. v. Superior Court, 45 Wash. 316, 88 Pac. 332;State ex rel. Skamania Boom Co. v. Superior Court, 47 Wash. 166, 91 Pac. 637."

              [[Orig. Op. Page 4]]

            The state of Washington has at least equal condemnation powers to those of a public service corporation.  It is too well established to warrant the citation of authority in this opinion.

             The opinion in State ex rel. Skamania Boom Co. v. Superior Court, 47 Wash. 166 at pages 168, 169 states in part:

             "* * * Within the principles discussed inSamish River Boom Co. v. Union Boom Co., 32 Wash. 586, 73 Pac. 670, the power exists for one public service corporation to condemn property held by another.  Such power may not be exercised arbitrarily or indiscriminately so as merely to take property away from one corporation and give it to another.  It cannot be taken to be used for the same purpose in the same manner; but where there is a necessity for devoting it to some other public service, it may be condemned.  As to the degree of necessity which must exist, there is difference of opinion.  Some courts have held that the necessity must be an absolute one, but the weight of opinion is that it must be a reasonable necessity.  Lewis, Eminent Domain (2d ed.), § 276."

 Very truly yours,
Attorney General 

Assistant Attorney General