Certiorari by the Seattle & Montana Railroad Company to the superior court of Whatcom county to review a judgment for plaintiff in a condemnation proceeding by the Bellingham Bay & Eastern Railroad Company against relator. Affirmed.

Kerr & McCord and Will H. Thompson, for petitioner. Dorr & Hadley, for respondent.

REAVIS, C. J. The Bellingham Bay & Eastern Railroad Company, respondent, brought an action in the superior court of Whatcom county to condemn for its use as a right of way certain real property owned by the Seattle & Montana Railroad Company, the petitioner, at Fairhaven. Upon the trial of the action it was adjudged that the right of way described in the petition and sought to be appropriated was necessary for the respondent railway company, and the intended use thereof a public one, and that the public interests required the appropriation thereof, and an order was entered directing that a jury be impaneled to assess the damages for the taking of petitioner's property. Petitioner excepted, and in this proceeding prays a review of the adjudication that the property sought to be condemned can be taken for this use, or that it is for a public use and required by the public interest, and denies the power to appropriate the property of the petitioner, because, as alleged, it is already appropriated by petitioner for a public use; that is, the construction and operation of its own railway. After finding the preliminary facts of notice, hearing, and that each (petitioner and respondent) is a railway company operating lines of railroad between Fairhaven and other points, and that each is authorized to own and condemn real property for such uses, the other material facts in issue are set forth as follows: "(12) That the respondent [here petitioner], Seattle & Montana Railroad Company, is the owner of the lands sought to be appropriated, and that the same are embraced within a tract of land 100 feet in width owned by said Seattle & Montana Railroad Company, and claimed by it as right of way for its railroad, which said 100-foot strip of land has been acquired by said Seattle & Montana Railroad Company by purchase for railway purposes, but has never been condemned for such purposes. (13) That the respondent [here petitioner], Seattle & Montana Railroad Company, requires for the operation of its railway line and system over and across said 100-foot strip and alleged right of way one main track, a passing track, and two storage tracks, and no more,-making four tracks in all,-and that none of said land sought to be appropriated by petitioner, Bellingham Bay & Eastern Railroad Company, is necessary or required for the use of the respondent, Seattle & Montana Railroad Company, in the operation of its railroad, and that the taking and appropriation thereof by said petitioner will not interfere with the operation of said four tracks of said respondent, Seattle

& Montana Railroad Company, nor with the operation of its said railway system, in any manner or at all. (14) That, in the construction and for the necessary operation and maintenance of said line of railroad of said petitioner [here respondent], it is necessary for it to have each and every part and parcel of said above-described tract of land for such right of way, for the uses and purposes of its railway, over and across said lands, real estate, and premises as hereinbefore described. (15) That the contemplated use for which the said land, real estate, and premises are sought to be appropriated is really a public use, and that the public interest requires the prosecution of the enterprise being prosecuted by petitioner, and requires the appropriation of said lands as prayed for in said petition, and that the said land, real estate, and premises so sought to be appropriated are required and necessary for the purposes of such enterprise." Petitioner excepted to the findings of fact numbered here, and the evidence is before us by stipulation. Respondent, the Bellingham Bay & Eastern Railroad Company, demurs to the petition for the writ, and, in objecting thereto, alleges want of jurisdiction in this court to issue the writ, and because the application does not state facts sufficient to state a cause of action.

1. The demurrer will first be considered. Our constitution (article 1, § 16) 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, as in other civil cases in courts of record, in the manner prescribed by law. Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legis lative assertion that the use is public." "Whenever an act determines a question of right or obligation or of property, as the foundation upon which it proceeds, such an act is to that extent judicial." Wulzen v. Board (Cal.) 35 Pac. 353, 40 Am. St. Rep. 17; Sinking-Fund Cases, 99 U. S. 761, 25 L. Ed. 496. The jurisdiction of this court is clearly defined in article 4, § 4, of the constitution, as follows: "The supreme court shall have original jurisdiction in habeas corpus and quo warranto and mandamus as to all state officers, and appellate jurisdiction in all actions and

proceedings, excepting that its appellate jurisdiction shall not extend to civil actions at law for the recovery of money or personal property when the original amount in controversy or the value of the property does not exceed the sum of two hundred dollars, unless the action involves the legality of a tax, impost, assessment, toll, municipal fine, or the validity of a statute. The supreme court shall also have power to issue writs of mandamus, review prohibition, habeas corpus, certiorari, and all other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction. Each of the judges shall have power to issue writs of habeas corpus to any part of the state upon petition by or on behalf of any person held in actual custody, and may make such writs returnable before himself, or before the supreme court, or before any superior court of the state, or any judge thereof." It has appellate jurisdiction in all actions and proceedings except in civil actions at law for the recovery of money or personal property, where the original amount in controversy or the value of the property does not exceed the sum of $200. It may also issue all writs necessary to its appellate and revisory power. But it is urged that the court, in Seattle & M. Ry. Co. v. State, 5 Wash. 807, 32 Pac. 744, denied the power to issue the writ of certiorari to review the adjudication of the question of public use and necessity in the superior court. It may be observed that the court there did not consider the nature of the appeal act in eminent domain cases, and the writ was denied because a remedy was assumed to exist in appeal. However, later, in the case of Western American Co. v. St. Ann Co., 22 Wash. 158, 60 Pac. 158, it is decided that the only question which can be reviewed on appeal under the special statute for that purpose is the "propriety and justness of the damages"; and the following language found in Western American Co. v. St. Ann Co., supra: "But we do not see any particular merit in this contention, for questions which the law submits to the exclusive jurisdiction of the superior courts may be as purely judicial questions as though they were tried in this court,”— can only apply to the exception which the constitution declares to the appellate jurisdiction of this court. The legislature can make no exception. It may fail to provide the procedure for appeal in a special case, but the power of constitutional review still remains in this court. In Browne v. Gear, 21 Wash. 147, 57 Pac. 359, we defined the power of the superior court and the functions of the writ of certiorari under the statute. The writ was issued in State v. Moore, 23 Wash. 276, 62 Pac. 769. In State v. Superior Court of Kings Co., 66 Pac. 385, the writ was issued where appeal was inadequate, and the revisory power of this court was exercised in reviewing and correcting an order of the superior court. It having been adjudged that no review on appeal of the question of public use and interest involved in the exercise of

eminent domain proceedings now exists, it follows that the writ of certiorari may be issued to bring up the record for review in the proceedings for appropriation of the right of way through petitioner's real property. The application for the writ states sufficient cause for its issuance.

2. The real property through which the right of way is sought to be appropriated was purchased by petitioners 11 years ago, and is parcels included in a larger tract of tide lands purchased at the same time by the petitioner. Other portions of such land so purchased have been granted by petitioner to various parties, who have erected thereon improvements such as foundries and canneries. All the property lies within the city limits of Fairhaven. Petitioner has reserved 100 feet for its right of way. There are two railroad tracks which are spurs in operation by petitioner upon this 100 feet. The strip of land sought to be condemned is 28 feet taken off one side of the 100 feet for a distance of several hundred feet in length. The respondent's road enters the town across the water and tide lots, and seeks to go to its terminal grounds by a line that diagonally crosses the tracks and right of way belonging to petitioner, also situated on tide-land lots. It then seeks to continue on its proposed right of way of 28 feet for several hundred feet parallel to the tracks of petitioner to its terminal grounds. It is maintained by counsel for petitioner that, where one railroad has appropriated real property for its uses, another railroad company cannot longitudinally appropriate a part of the right of way for the same uses, and the point is urged that property once appropriated to a public use cannot be condemned for another public use without express legislative authority. It is further asserted that there is no such express authority from the legislature; and section 5647, 2 Ballinger's Ann. Codes & St., is referred to as containing an express provision for appropriation of a longitudinal section of existing right of way through cañons, passes, and defiles, and it is inferred therefrom that such provision is exclusive, and no other appropriation of such right of way than expressed in the statute can be implied. The question is, does the section mentioned intend such right of condemnation as is granted in the general statute of eminent domain? The right is expressed in the authority for judgment as follows: "And at the time of rendering judgment for damages, whether upon default or trial, the court, or judge thereof, shall enter a judgment or decree authorizing said railroad company to occupy and use said right-of-way, road-bed, and track, if necessary, in common with the railroad company or companies already occupying or owning the same, and defining the terms and conditions upon which the same shall be so occupied and used in common." The purpose of this enactment is to prevent any railroad from occupying its Own tracks exclusively where the physical

conditions are such that another railway cannot be operated through such place, and the statute contemplates, if necessary, a common easement over the same land and tracks. The section is a part of the general statute relating to eminent domain. Sections 5637-5643, inclusive, 2 Ballinger's Ann. Codes & St., prescribe the procedure for condemnation of right of way by railroad companies. The court in such proceedings must, from competent proof, adjudge that the contemplated use of the land sought to be appropriated is a public use, and that the public interests require the prosecution of the enterprise. Perhaps the strongest authority in support of the position urged by petitioner is the case of Illinois Cent. R. Co. v. Chicago, B. & N. R. Co. (Ill.) 13 N. E. 140. In that case an endeavor was made by the petitioner to condemn a part of the right of way along the Mississippi river bottom belonging to another railroad company. The way had been acquired partly through a grant by congress, and the remainder by condemnation under the state statutes. The general statute of Illinois authorized a railroad company to appropriate absolutely "a stream of water, water-course, street, highway, plank-road, turnpike, road, or canal." The court held that, the legislature having undertaken to prescribe what particular public properties might be appropriated, the rule, “Expressio unius est exclusio alterius," was applicable. Our statute is general, and authorizes the appropriation of “all land, real estate, or other property" necessary for the construction of the railroad. It also appears in the Illinois case that the right of way sought to be condemned was acquired by the railroad occupying it through legislative grant and by condemnation. In some of the authorities cited by counsel for petitioner the language used seems to justify the position urged by counsel, that a right of way owned by one railroad company cannot, without express legislative authority, be condemned for another public use of the same nature. Among them are Railroad Co. v. Brownell, 24 N. Y. 345; Baltimore & O. S. W. Ry. Co. v. Board of Com'rs of Jackson Co. (Ind. Sup.) 58 N. E. 837, 839; State v. Mayor, etc., of City of Paterson (N. J. Sup.) 39 Atl. 680. It may be observed that in some of these cases the claim made by the appropriator was for the condemnation of railroad tracks in operation, or for depot grounds already occupied, and the use sought by condemnation was inconsistent with the operation of the railroad company already owning the property. But the general rule maintained by the petitioner, and the authorities supporting the same, is not so applied as to prevent one railroad from taking the property which is not in use for railroad purposes, and not necessary for the corporate franchises. Lewis, Em. Dom. (2d Ed.) § 267a, and authorities cited. The following rule stated in the text by the same author (section 267b) seems to be well supported by the authorities referred to therein: "It is manifest, however, that

even a railroad company which is organized under a general law may show a reasonable necessity for taking part of the right of way of another road, as when it is located through a town in which another road has been previously built, and the topography or other conditions are such that the new road cannot reasonably be located so as to accommodate the public and accomplish the object in view without either encroaching on the right of way of another company, or incurring ruinous or greatly increased expense. The same necessity may arise in mountainous countries, or else the first company might preclude all others from reaching certain localities. But this implied authority only extends to the taking of so much of the right of way of the first company as can be spared without material detriment. The question is whether the new condemnation can be made without destroying the use and usefulness of that part of the first-acquired right of way which is in actual use, or so obstructing or hindering or embarassing it as to render it unsafe. Just what the degree of necessity must be to justify the taking, it is difficult to say. One company cannot take part of the right of way of another merely because it is more convenient. It is largely a question of practicability and expense, of comparative advantage and injury, having regard always to the interests of the public, for whose benefit the general authority is given, and the particular taking proposed."

3. In the present instance it appears that about 11 years ago petitioner acquired by purchase a considerable area of tide lands in front of the city of Fairhaven. This quantity of tide lands was evidently not all acquired for its corporate purposes and uses. Subsequently it has sold for private purposes several parcels, and still owns several parcels not in use for railroad purposes. Its reservation of the 100 feet for right of way has not yet been used, with the exception of the two spurs for trackage purposes extending from its station. The proofs offered by the petitioner tended to show a contemplated use for at least four tracks, and that the same were intended to be constructed immediately. The proofs at the hearing also tended to show that 30 feet was sufficient for the operation of two tracks, or 60 feet for the four proposed tracks. Respondent sceks to acquire 28 feet for two tracks. There is testimony tending to show that the operation of trains by the two railroad companies, if respondent is given the appropriation sought, is practicable, and, with care and some increased cost, is reasonably safe. It was observed in Mobile & G. R. Co. v. Alabama Midland Ry. Co., 87 Ala. 508, 6 South. 404: "As a general proposition, it may be said that railroad companies organized under the general laws are authorized by the statutes to acquire by condemnation the right of way of another corporation, when essential to the accomplishment of their principal purposes, or when there is space for the tracks of parallel roads without obstructing the use

A

of the same. The statutes have been so construed, and to that construction we adhere. Armiston & C. R. Co. v. Jacksonville, G. & A. R. Co., 82 Ala. 297, 2 South. 710; East & W. R. Co. v. East Tennessee, V. & G. R. Co., 75 Ala. 275." The principle is stated in Re City of Buffalo, 68 N. Y. 167: "In determining whether a power generally given is meant to have operation upon lands already devoted by legislative authority to a public purpose, it is proper to consider the nature of the prior public work, the public use to which it is applied, the extent to which that use would be impaired or diminished by the taking of such part of the land as may be demanded for the subsequent public use. If both uses may not stand together, with some tolerable interference, which may be compensated by damages paid; if the latter use, when exercised, must supersede the former,-it is not to be implied, from a general power given, without having in view a then existing and particular need therefor, that the legislature meant to subject lands devoted to a public use already in exercise to one which might thereafter arise. legislative intent that there should be such an effect will not be inferred from a gift of power made in general terms." The following authorities are pertinent: Grand Rapids, N. & L. S. R. Co. v. Grand Rapids & I. R. Co., 24 Am. Rep. 545; Colorado E. Ry. Co. v. Union Pac. R. Co. (C. C.) 41 Fed. 293; Baltimore & O. S. W. R. Co. v. Board of Com'rs of Jackson Co. (Ind. Sup.) 58 N. E. 837; Northwestern Tel. Exch. Co. v. Chicago, M. & St. P. Ry. Co. (Minn.) 79 N. W. 317. The necessity must always be shown when one railroad attempts to appropriate the property of another. This necessity was found by the court. This principle is stated in Mobile & G. R. Co. v. Alabama Midland Ry. Co., supra, as follows: "A necessity, such as authorizes one railroad corporation to condemn a part of the right of way of another, does not mean an absolute and unconditional necessity, as determined by physical causes, but a reasonable necessity under the circumstances of the particular case, dependent upon the practicability of another route, considered in connection with the relative cost to one and probable injury to the other; and the right of condemnation is not made out unless the petitioning company shows that the cost of acquiring and constructing its road on any other route clearly outweighs the consequent damage which may result to the older company, not including the question of competition for the business of a manufacturing (or other large) establishment on the line of the proposed route."

From the review on the merits, as it appears from the record before us, we conclude that no rule of law affecting the rights of petitioner has been violated to its prejudice. Relative to the facts found by the superior court, an examination of the bill of exceptions shows that competent proof was made of all the facts necessary to be found, and there is no such preponderance of proof

ANDERS, MOUNT, DUNBAR, WHITE, and HADLEY, JJ., concur.

(29 Wash. 422)

In re MACDONALD'S ESTATE.
MACDONALD v. FRATER.
(Supreme Court of Washington. Aug. 26
1902.)

JUDGMENT AGAINST ESTATE RES JUDICATA-
WILL DIS-
EVIDENCE-NONINTERVENTION
CHARGE OF EXECUTRIX-NOTICE TO CRED-
ITORS-CLAIM NOT IN EXISTENCE.

1. The widow of a deceased stockholder in an insolvent national bank was sued by the receiver for an assessment on shares owned by deceased. She denied that she was such executrix, and pleaded her discharge by the superior court; having settled up the estate without judicial proceedings, as authorized by the will. The court found that the claim was valid, that there were no debts of deceased remaining unpaid, and that there still remained in the hands of the widow, as executrix, property sufficient to pay the claim. Held, that the judgment, as between the parties thereto, was decisive of all questions in issue and determined by the court.

2. Evidence in an action to subject the assets in the hands of an executrix to the payment of a judgment considered, and held sufficient to warrant a finding that she had in her possession funds belonging to the estate sufficient to pay the judgment, and that such judgment was the only claim.

3. The fact that the executrix under a nonintervention will applied to the court for leave to sell deceased's interest in a partnership, and to be discharged from her trust, did not conclusively show that the estate was either managed or settled under the supervision of the court.

4. An executrix empowered by will to administer an estate without the intervention of the court could not bar a creditor because of failure to present his claim within one year from the first publication of notice to do so.

5. A claim for an assessment on shares in an insolvent bank against an, estate which did not exist until after the expiration of the year specified in the notice to creditors was not affected by the notice, or barred because not presented in time.

Fullerton, J., dissenting.

Appeal from superior court, King county; Wm. Hickman Moore, Judge.

Application by A. W. Frater, receiver, for an order to show cause why Mary L. Macdonald, executrix of James Reid Macdonald, deceased, should not be removed, and letters testamentary be issued to some other person. From a judgment that she be removed on failure to pay a certain judgment within a specified time, she appeals. Affirmed.

Ira Bronson, for appellant. Preston, Carr & Gilman, for respondent

ANDERS, J. This was an application by petition to the superior court of King county, in probate, for an order upon the executrix of the will of James Reid Macdonald, deceased, to show cause why she should not

5. See Executors and Administrators, vol. 22, Cent. Dig. §§ 769, 771.

be removed, and letters testamentary be issued to some other person. The material facts, as declared by the record, are as follows: James Reid Macdonald died in San Francisco, Cal., on November 1, 1893. By his will he bequeathed the sum of $1,000 to each of his four minor children, and devised and bequeathed the residue of his property to his wife, Mary L. Macdonald, whom he appointed executrix of said will. This will authorized the executrix to settle and distribute the estate without the intervention of the court and without giving bonds, which the testator was empowered to do by section 955, 2 Hill's Code. Such wills are commonly designated in this state as "nonintervention wills." The will was duly admitted to probate, and on November 27, 1893, letters testamentary were issued to said executrix. Thereafter she caused to be published a notice to the creditors of said James Reid Macdonald to present their claims to her at a place designated in King county within one year from the date therein specified. It is stated in appellant's brief that the only creditors of the said James Reid Macdonald, of “any practical significance," known to her, consisted of the trade creditors of the firm of Fisher & Macdonald, of Seattle, and that these creditors were paid and their claims wiped out within a short time by Fisher Bros., the successors of Fisher & Macdonald. No claims were presented for allowance to the executrix within the year designated in the above-mentioned notice to creditors. And in the early part of July, 1896, the said Mary L. Macdonald filed a petition for her discharge as executrix and for distribution of said estate; and on August 17, 1896, and after notice of the application had been regularly published and given in the manner and for the time required by law in ordinary cases of administration of estates of decedents, the superior court entered an order purporting to discharge said executrix, and to authorize the distribution of the estate, which the appellant asserts was accordingly done. At the time of his death Mr. Macdonald was the owner of 13 shares of the capital stock of the Merchants' National Bank of Seattle, which came into the possession of appellant, Mary L. Macdonald, as part of the assets of his estate. After his death the bank became insolvent, and a receiver of its assets was appointed by the comptroller of the currency, and an assessment was levied upon the shareholders of that bank for $150,000; being $75 upon each and every share of the capital stock of the said bank. This assessment was made in April, 1896, and on April 16, 1896, the then receiver notified Mrs. Macdonald, by registered letter, which was received and receipted for by her on the same day, that the comptroller of the currency had levied an assessment of $75 per share upon the capital stock of said bank, payable at the office of the receiver on or before May 16, 1896, and requested her to pay the assessment on 13 shares standing in her name, in accordance with the

notice, or suit would be commenced to enforce payment. The assessment was not paid in accordance with the request or demand of the receiver, or at all; and on August 3, 1896, a suit was instituted in the circuit court of the United States for the district of Washington, Northern division, to enforce its collection, in which action judgment was rendered on January 21, 1898, in favor of the complainant and against the defendant, Mary L. Macdonald, as executrix of the last will and testament of James Reid Macdonald, deceased, for $1,094.30, and costs incurred in the action. This judgment was never appealed from and has not been paid. No execution has been issued upon it, but a certified transcript of the judgment was filed in the superior court of King county, in the matter of the estate of Macdonald, pursuant to section 990, 2 Hill's Code. The executrix, Mrs. Macdonald, failed and refused to pay the judgment; and this proceeding was instituted by the receiver of the bank, under section 955, 2 Hill's Code, to subject the assets alleged to be in the hands of Mrs. Macdonald, as executrix, to the payment thereof, by removing her from her trust, and causing letters testamentary to be issued and such other proceedings to be had as are required by law in the administration of estates. In his petition the receiver alleged, in an appropriate manner, the insolvency of the Merchants' National Bank; his own appointment as receiver by the comptroller of the currency; the assessment of the capital stock of the bank by said comptroller, and the amount of such assessment; the death of James Reid Macdonald while owning 13 shares of said stock; the appointment of Mary L. Macdonald as executrix of the last will and testament of James Reid Macdonald; and averred that said will provided, among other things, that the estate of said testator should be managed and settled in the manner provided in said will, and without the intervention of the court, except to admit the will to probate in the manner required by law, and that the estate had been so managed and controlled by said executrix since the probate of the will and the qualification of the said executrix in accordance with terms thereof. The petition also sets out all the proceedings had and taken in the action in the circuit court, above mentioned, including the judgment therein, its nonpayment, and the filing of a certified transcript thereof in the superior court. In short, the petition alleges facts sufficient to entitle the petitioner to the relief demanded under section 955, supra, provided that section is applicable to this case.

In her answer to the petition, Mrs. Macdonald denies that she is now, or since August 17, 1898, has been, the executrix of the last will and testament of James Reid Macdonald, deceased, and that, after the probate of said will and the qualification of said executrix, the said estate has been managed and controlled without the intervention of the above-entitled court, but alleges that the