State Ex Rel. Wash. Water P. Co. v. Sup. Ct. , 8 Wash. 2d 122 ( 1941 )

I am in full accord with the result reached by the majority opinion, but I am unable to fully agree with what is said in the opinion concerning the interpretation of Rem. Rev. Stat., § 11610.

It is true that only in subd. (e) is any express mention made of the right of public utility districts to occupy public highways, roads, and streets. But I think it is fairly arguable that the right of such occupancy must be necessarily implied from the general powers conferred upon public utility districts by subds. (b) and (d) of the section. Such right of occupancy is, however, subject to the right of the owner, and must be perfected by purchase, condemnation and purchase, franchise, or otherwise, as is provided for in subd. (b). It is to effectuate this and other rights granted that the power of eminent domain is conferred upon public utility districts by subd. (b).

It rather clearly appears that, unless subd. (e) grants general rights of way to public utility districts, no such grant is made in the act.

The pertinent portion of subd. (e) is set out in the majority opinion, and therefore will not be quoted herein.

What I have heretofore stated concerning the provisions of subds. (b) and (d) apply fully to the first sentence of subd. (e), quoted in the majority opinion — no rights of way are thereby granted, the public utility district being empowered only to acquire such rights of way.

The second quoted sentence was interpreted in the majority opinion as referring only to inter-tie lines, and it was therefore held that, even though that sentence does grant a franchise or right of way, such grant is limited to a right of way for inter-tie lines only, and is not a general grant of rights of way for the system as a whole. It seems to me that this sentence is not exclusively concerned with inter-tie lines, but rather is concerned with the whole network of lines by which electric energy is transmitted from its source to the point of distribution. But it also appears that nothing said in this sentence can be construed as a grant, either of general or special rights of way. That part of the sentence which deals exclusively with inter-tie lines reads:

"Such public utility district shall have power to build and maintain inter-tie lines connecting its power plant and distribution system with the power plant and distribution system owned by any other public utility district, or municipal corporation, or to connect with the power plants and distribution systems owned by any municipal corporation in the district, and from any such inter-tie line to sell electric energy to any individual, or public utility district, or any city or town, or other corporations, public or private . . ."

The phrase "inter-tie lines" is in effect defined therein as those "lines connecting its power plant and distribution system with" some other power plant and distribution system.

The next clause reads:

". . . and, by means of transmission or pole lines, to conduct electric energy from the place of production to the point of distribution . . ."

Here the phrase "transmission or pole lines" is used, rather than the expression "inter-tie lines"; the energy is conducted, not to the power plant and distribution system, but "to the point of distribution"; it is conducted from the place of production.

With these two clauses in mind, it is my opinion that this sentence concerns the entire system of transmitting electricity, including the inter-tie lines, the transmission lines, and the distribution lines.

The next clause reads:

". . . and to construct and lay said aqueducts, pipe or pole lines, and transmission lines along and upon public highways, roads and streets . . ."

and the following clause reads:

". . . and to condemn and purchase, purchase or acquire, lands, franchises and rights of way necessary for the same."

It appears to me that any contention that, by the first of these last two clauses, rights of way are granted to public utility districts along public highways, roads, and streets, is completely overcome by the import of the clause immediately following, which empowers public utility districts to condemn and purchase, purchase or acquire, rights of way necessary for the same. By this last statement, it is expressly recognized that public utility districts must receive rights of way or franchises from the owners of public highways, roads, and streets, over and upon which they desire to extend their lines.

It therefore seems to me that the decision on this issue should be based on the premise that no franchises or rights of way are granted either by subd. (e) or any other section of the act, rather than on the premise that the rest of the act is silent as to specific mention of highways, roads, and streets, and that subd. (e) is of limited application to inter-tie lines only.