c31:No. 2268

ROSS, Circuit Judge
(dissenting). The defendant in error being the owner of a right of way between the city of Seattle and Sumas in the state of Washington, a distance of about 120 miles, over which it operates its line of railway, the plaintiff in error commenced this proceeding in the court below to condemn a right on and over the railway right of way upon which to maintain and operate a telegraph line, which it was authorized to do by virtue of the laws of that state.
In its petition for such condemnation the telegraph company alleged, among other things:
That its line “will at all times hereafter be constructed and reconstructed of the best material and by the most approved methods of construction, and will consist of a single line of poles not less than 20 nor more than 30 feet in length, including length underground except at highways or where obstructions exist, where the poles will be of such a height as may be required by statute, or necessary because of physical conditions existing, or to protect other wires or structures rightfully upon the said right of way. That the poles will be about 10 inches in diameter at the base, planted from 4 to S feet ixi the ground, according to the length of the poles, and in such positions upon said right of way as safe and proper construction permit; the poles to be placed upon that portion of said right of way between a line 5 feet from the outer edge thereof and a line 25 feet from the center of the main track, except where the right of way may be less than 60 feet in width, or where the location of the main track upon the right of way, or the location of buildings, tracks, or other improvements or obstructions upon the right of way may make it impossible to place the poles upon that portion of the right of way above described, in which event the poles will be placed upon the most practicable remaining portion of the right of way consistent with the safe and proper construction of said telegraph line, such portion of said right of way to be designated by said railway company or its lessees, so as not to interfere with the ordinary travel or use of said railroad. That the poles will be set about 165 feet apart, making a total of 32 to 35 poles to the mile, excepting at sharp angles, where they may be not less than 75 feet apart, and around curves, where they may be from 117 to 131 feet apart; the poles to be equipped with cross-arms about 10 feet long, at or near the top of the poles, fastened at about the middle of the cross-arms to the poles, and along and upon said cross-arms or poles, or upon said cross-arms and poles, will be strung a sufficient number of wires to transact such business as will be given to the telegraph company by the United States government and the public. That said line of poles and wires will be so constructed, maintained, and operated as not to interfere with the ordinary travel or use of said railroad.
“This petitioner further avers that the only lands that will be actually taken or occupied by it by virtue of this proceeding will be about one square foot for each pole;, that the space between the poles and under the wires can be used by said railway company or its lessees for all purposes for which it has heretofore been used; that wherever it becomes necessary for said telegraph line to cross sqid right of way the said crossing will be made by having its poles at such crossing so erected and its wires so insulated and strung so high above said railroad track as. to prevent any injury to or interference with the employés or property of the said railway company. And this petitioner further stipulates that its said telegraph line will not interfere with any other telegraph or telephone line now rightfully upon said right of way; that if at any time the said railway company, its successors or lessees, shall require for railroad purposes the immediate use of any of the land occupied by said telegraph line, then and in that event, upon reasonable’ notice in writing, this petitioner will, at it’s own expense, remove its line to some other place, to be designated by said railway company, adjacent thereto, on said right of way, so as not to interfere with the use of said right of way for railroad purposes; that said telegraph line will not be erected on any embankment or slope or any cut of said right of way, without the consent of said railway company, and, if at any time said railway company or its lessees shall require its entire right of way for railroad purposes at any point, the telegraph company will at such point or points remove its line entirely off said right of way.”
The question as to what the telegraph company should be required to pay the railway company for the right thus sought came on for trial in the court below before a jury, resulting in a verdict in favor of the railway company for $15,000, upon which verdict a judgment was entered giving the telegraph company the right sought upon the payment to the railway company of that sum, with costs. The case is brought here by the'petitioning company by writ of error.
It shows that when the proceeding was instituted the railway company had an exclusive right to use the strip of land constituting its right of way for railroad purposes. To the extent that that exclusive right of enjoyment for railroad purposes was diminished in value by subjecting its right of way to that sought by the telegraph company, and the extent to which the establishment and maintenance of,the telegraph line on the railway right of way might be properly said to add to the railway company’s burdens, were the only questions to be determined by the jury.
In the state of Washington, where this case arose, it is the established rule that he who seeks condemnation of another’s property must affirmatively show the reasonable "value of the thing sought to be taken. Bellingham Bay, etc., R. Co. v. Strand, 4 Wash. 311, 30 Pac. 144. In assuming that burden the petitioner below introduced witnesses who testified to the effect that the value of the railway company’s right of way for railroad purposes would not be diminished by the additional servitude to be created by the construction and maintenance of the proposed telegraph line, under the stipulations of the petition. The defendant to the proceeding introduced testimony to the effect that the construction and maintenance of such telegraph line on the railway company’s right of way would impose upon the latter company an additional annual expense 'in cutting, piling, and burning the undergrowth thereon; its engineer of maintenance, Perkins, testifying among other things, as follows:
“The added expense has not been made an exact matter of record by bookkeeping, but I would estimate from my general knowledge of the line in question, and of the nature of it, that the specific and general items that add to the cost of the maintenance on that line by reason of the presence of a pole line would make an annual amount of about $15 per mile. Q.. Explain to the court and jury how you arrive at that figure. A. I am taking into consideration the added cost of clearing the right of way from brush; the added cost by reason of the particular items of clearing and pulling the brush and inflammable- material away from poles, to protect them from destruction by fire; the added cost by reason of the presence of poles between and adjacent to tracks, in the way of acting as obstructions to the handling of ties .and tie renewal ; the added cost by reason of the protection and care that is needed in the burning of old fies, and needed in order to protect the poles from fire and to protect the wire lines from damage; the added cost by reason of delays that occur in connection with construction, in waiting for poles to be moved; and the actual loss of the use of a certain amount of team track capacity by reason of poles being located beside team tracks and thereby preventing tbe use of a certain part of the team track, which is worth a certain amount of money to us, and to some extent the added risk by reason of poles being in close proximity to tracks and endangering the employes and others in connection with the operation of trains.”
And its witnesses F. M. Smith and W. H. Gale testifying, among other things, as follows;
F. M. Smith-.
“Well, it would increase the cost of maintenance in several ways. Places where our right of way is narrow, it would doubtless increase the cost of burning the old ties; that is, moving them to a place where sufficient clearance could be obtained from the wires so that we could burn them without injuring the wires and also in unloading our ties or piling them up; and in places where the brush is rather heavy in the cutting of the brush, we would have to pile the brush back from the poles and from under the wifes so that when the slashing was burned it would no.t destroy the poles and the wires, and we have at various times when we do this burning to station men along to watch the burning so that the poles would not catch and burn up. And this labor represents dollars and cents and probably would increase the cost of maintenance considerably. In some certain sections in this burning and slashing probably it would increase the cost from $12 to $15 per mile, and in the handling of'our ties for burning nárfow strips of right of way such as we have from Fremont to Bothel it would run into considerable money in a year, depending on the number of ties we put in. It would increase the cost probably one or two cents a tie for the handling. I have figures showing about one cent for the extra handling on account of finding a proper place to burn them.”
W. H. Gale:
“We have right of way on a part of our track that we have no poles on, and if we go once a year and cut that brush we can cut it irrespective of where it falls. We can let it fall anywhere except next to the fences. When the men are cutting brush they let it fall away from the fence. We do not make any pretense of piling the brush to burn it because it dries out better, and after we come to burn it we can get a better burn, because it burns every weed on that right of way.' It is our desire always, when we burn it—it not only helps to burn the brush, but it sets it back by burning the- roots, and where you have a line of poles you have to protect those poles by cutting around the poles and throwing the stuff back a sufficient distance to save the poles. We have always done it. That has been the practice, and it is quite an item when you come to clear a right of way to clear away and keep it away and save the poles while you are burning it. Q. About how much a mile, Mr. .Gale? * * * A. I would say at least $10 or $12 per mile, easily, for the difference in pulling away the brush. There have been a great many of the telegraph company’s poles on fire at one time or another. The matter of extinguishing the fires requires labor. I never knew the telegraph company to furnish men to watch the poles or pull back the brush when they are burning, or to clear any of the right of way except to chop down a few of the tops which might be reaching up to the lower wires. We have to cut it off again just the same and it takes more work to do it.”
The plaintiff in error sought to rebut this testimony of the railway company by several witnesses, but the trial court rejected the offer upon the ground that the testimony should have been given in chief, to which ruling the plaintiff in error reserved an exception.
No such cause of damage appears to have been pleaded by thé railway company; indeed, it has been held that the clearing of such a right of way and the burning or other disposition of the brush and other obstructions thereon is not to be considered in assessing such damages for the reason that such expense is incurred, not as a result of the construction of the line of telegraph, but because' necessary to the railway company in the safe conduct of its own business. Atlantic Coast Line R. Co. v. Postal Telegraph-Cable Co., 120 Ga. 268, 48 S. E. 19; 1 Ann. Cas. 734. However that may be, I am. of the opinion that the plaintiff in error was entitled to rebut the evidence given by the railway company upon the subject.
The state of Washington has this statute:
“Every one clearing right of way for railroad, wagonroad or other road, shall pile and burn on such right of way all refuse timber, slashings, choppings and brush cut thereon, as rapidly as the clearing or cutting progresses, and the weather conditions permit, or at such other times as the forester, or any of his assistants, or any warden, may direct, and before doing so, shall obtain a permit.” Sessions Laws 1911, p. 634.
As will be observed, this statute does not expressly require a railroad company to keep its right of way free of brush and other like obstructions, and the plaintiff in error requested the trial court in this case to instruct the jury as follows:
“You are further instructed that the statutes of the state of Washington do not impose any express duty upon the defendant railway company to cut or burn the brush growing on .its right of way, nor to keep the same free from grass, weeds, brush, or trees; neither does it impose any such express duty upon the telegraph company. If, however, the defendant railway company does clear its right of way of timber, slashings, choppings, and brush, then it is made its duty under the laws of this state, as rapidly as the clearing or cutting progresses and the weather conditions permit or at such times as the forester or any of his assistants, or any fire warden, may direct, to obtain a permit and to pile and burn the same on such right of way.”
The court refused to give this instruction, to which exception was taken by the plaintiff in error, and gave to the jury, among others, the following:
“The law requires a railway company to use reasonable diligence in keeping its right of way clear from inflammable material, and that where it fails to do so and damage results therefrom, the railway company is liable”—to which latter instruction the plaintiff in error also excepted.
The direct effect of the refusal of the request of the petitioner for the above instruction respecting the clearing of the right of way, and the giving of the last one above quoted, was to tell the jury that the cost to the railway company of keeping its right of way free of such material was properly chargeable as damages against the petitioner for the right of way sought by it, regardless of whether such clearing would or would not be made necessary or proper by the construction and maintenance of the telegraph line, and to what extent, if at all. Arid this was emphasized by the refusal of the court (to which refusal the petitioner also excepted)'to give this requested instruction:
“You are further instructed that, if you believe from the evidence that the clearing of brush and other undergrowth immediately surrounding the poles of the telegraph company would require additional time and expense, then the defendant railway company will owe no duty to the telegraph company to cut or remove such brush and undergrowth, and it need not incur such additional expense unless you believe from the evidence that the cutting of such brush or undergrowth immediately around said telegraph poles would be necessary for the safe and proper operation of defendant’s railway trains and business or to prevent the spread of fires from the said railway across its right of way to adjoining land.”
Certainly the duty imposed by law upon a railroad company to keep its right of way free of brush or other material likely to cause damage is not to be taxed against any other party who in no way adds .to the burden, but is imposed upon the company owning the right of way, as a duty owing to the public and for the protection of those injured by its neglect. Chicago, Burlington, etc., R. Co. v. Chicago, 166 U. S. 226, 254, 17 Sup. Ct. 581, 41 L. Ed. 979, and authorities there cited.
I am of the opinion that the plaintiff in error was clearly entitled to show, if it could, that the construction and maintenance of its telegraph line on the right of way of the railway company would not add to any burden imposed by law upon the latter company'to keep its right of way free of brush and other like obstructions, or, if at all, to what extent. Chicago, etc., R. Co. v. Phelps, 125 Ill. 482, 17 N. E. 771; Hartshorn v. Illinois, etc., Ry. Co., 216 Ill. 392, 75 N. E. 122.
From what has been said, I think the judgment should be reversed, and the cause remanded to the court below for a new trial, and therefore dissent from that given here.

Passage view · GavelSight