It is necessary to ascertain whether the term "approaches," as used in Laws of 1937, chapter 173, p. 654, Rem. Rev. Stat., Vol. 7A, §§ 6524-1 to 6524-21, comprehends the so-called approaches contemplated by the authority.
The so-called approach contemplates a one-fourth mile long twin-bore tunnel and the construction of an arterial highway for a distance something in excess of six thousand lineal feet on the west side of Lake Washington leading up to the bridge, most of it being very remote from the bridge. The so-called approaches on the eastern side of the lake cover a distance in excess of sixteen thousand lineal feet, about three miles.
The parties stipulated that the distance covered by the so-called approaches on the western side of Lake Washington are as follows:
"The western approach of the Lake Washington Toll Bridge commences at the northeast corner of Beacon Hill in the City of Seattle, in the vicinity of the Marine Hospital and at an intersection of 17th Avenue South and Corwin Place, with ready access to 12th Avenue South and with connections to Rainier Avenue in the vicinity south of Dearborn Street; the project then continues easterly for a distance of 633.72 feet to an overcrossing approach structure; this overcrossing approach structure has a length of 778.0 feet and carries this project over Poplar Place, Rainier Avenue and *Page 128 20th Avenue South; from this Rainier Avenue Overcrossing structure the project then continues easterly for a distance of 840.2 feet to a point at the center of an undercrossing at which point 23d Avenue South is carried by a concrete structure over this project; the project then continues easterly for a distance of 294.8 feet to the center of an undercrossing which carries pedestrian traffic on a concrete structure over this project at 24th Avenue South; the project then continues easterly for a distance of 797.45 feet to an overcrossing structure crossing over 27th Avenue South, which 27th Avenue South Overcrossing has a length of 140.0 feet; the project then continues easterly for a distance of 733.55 feet to the west portal of a tunnel at a point just west of Yakima Avenue; the project then continues easterly through a twin bore tunnel having a length of 1445.0 feet to its east portal; from the east portal of the twin bore tunnel the project then continues easterly for a distance of 364.0 feet, making connections with 35th Avenue South to the westerly end of the west incline transition span; the project then continues by means of the west incline transition span crossing over 36th Avenue South and Lakeside Avenue and having a length of 1062.0 feet to a transition connection with the pontoon structure; . .. "
They further stipulated as follows in regard to the so-called approach on the eastern side of Lake Washington:
". . . the project then continues easterly on Mercer Island, including the toll plaza structure and administration building, for a distance of 391.75 feet to the beginning of an overcrossing structure; there then continues an overcrossing structure carrying this project over Mercer Street and having a length of 63.0 feet; the project then continues easterly for a distance of 918.25 feet to the center of an undercrossing whereby Mercer Boulevard is carried by a concrete structure over this project; the project then continues easterly for a distance of 865.0 feet to the center of an undercrossing by which Summit Avenue is carried over this project; the project then continues easterly for a distance of 2173.5 feet to an overcrossing structure which overcrossing *Page 129 structure has a length of 280.0 feet and carries this project over Thompson Avenue; the project then continues easterly for a distance of 2021.0 feet to an overcrossing structure; this overcrossing structure passes over local traffic and has a length of 121.0 feet; the project then continues easterly for a distance of 5176.5 feet to another overcrossing structure; here there is an overcrossing structure carrying the project over local traffic, such overcrossing structure having a length of 123.0 feet; the project then continues easterly for a distance of 2383.0 feet to the beginning of the east channel bridge; there is here a bridge of steel construction across the east channel of Lake Washington having a length of 1357.0 feet; the project then continues easterly for a distance of 164.0 feet to a short overcrossing structure passing over a local traffic road and having a length of 122.0 feet; the project then continues easterly for a distance of 1801.0 feet to the beginning of the Mercer Slough structure; here there is a steel and concrete structure 2578.0 feet in length carrying this project over Mercer Slough and over Secondary State Highway No. 2-A to the end of the project, making connections with such secondary state highway."
The majority rely upon In re New York, 174 N.Y. 26,66 N.E. 584, and State ex rel. Schaefer v. Zangerle, 43 Ohio App. 30,182 N.E. 644. While the precise scope and extent of the street improvements leading up to the bridge are not disclosed in terms of lineal feet in those cases, it is extremely doubtful if the improvements contemplated therein even tended to approximate the distance of those involved here. In addition, the improvements had reference only to contiguous streets converging on the bridge.
The opinion of the engineers is only opinion evidence and, like other opinion evidence, is not entitled to great weight when opposed to known physical facts open to every one, or where absurd. The decision of the inferior appellate court of Ohio, relied upon by the *Page 130 majority, is distinguishable on its facts. Moreover, the physical conditions there rendered the approaches really approaches. There is no comparison between that case and this.
In Chicago v. Pittsburgh, Ft. W. C.R. Co., 247 Ill. 319,93 N.E. 307, 139 Am. St. 329, relied upon by the majority, it should be observed that the court recognized very definite limitations inhered in the term "approaches." The court said:
"If the rise to a viaduct from the ordinary surface of the ground is not more than six or eight feet, it is not generally thought necessary to commence the ascent or approach more than a block away from the viaduct proper. If, however, the public authorities and the property owners along a street for three or four blocks all agree to distribute this grade of six or eight feet over said three or four blocks and have the pavement, curbs, sidewalks, and buildings for that distance conform thereto, it could hardly be argued that the whole of such three or four blocks was a part of the approach, which the railway company constructing the viaduct would be compelled to maintain and keep in repair. As was said by this court in City of Bloomington v.Illinois Central Railroad Co., supra, [154 Ill.] on page 547 [39 N.E. 481]: `What is to be considered as the extent of the approaches to the railroad crossing must be determined by what is reasonable in the particular case.'"
The decision of the majority marks a clear departure fromRumsey v. Department of Labor Industries, 192 Wash. 538,74 P.2d 214, in which this court held that construction work on a road leading up to a bridge no nearer than one hundred fifty feet on either side thereof did not constitute an approach to the bridge. It should be noted that the bridge under consideration in that case is one over which a very substantial stream of vehicular traffic moves. The court stated:
"The construction work accomplished by respondent approachedthe Nisqually river no nearer than one *Page 131 hundred fifty feet on either side thereof. The elevation of respondent's work above the level of the ground was practically constant; some of the adjoining roadway was filled in; and, considering the terrain, the length of the road constructed by respondent, and all the surrounding circumstances as disclosed by the record, we are clearly of the opinion that the constructionwork performed by respondent cannot be held to constitute anapproach to the bridge over the Nisqually river. Between two sections of the work performed by respondent is some seven hundred feet of filled roadway not covered by respondent's contract. It was neither more nor less than an elevated roadway, and was no more an approach to the bridge than other portions of the road up to a mile or so distant. We hold that none of the construction work performed by respondent constituted an approach to the Nisqually bridge." (Italics mine.)
The majority also relies upon the case of Shope v. DesMoines, 188 Iowa 1141, 177 N.W. 79, in support of the view that an approach is that which is necessary to reach the main structure and the absence of which would render the bridge incomplete and useless. We cannot agree that this definition warrants the construction of an approach of the magnitude of the one contemplated here.
In Person v. Polk County, 193 Iowa 733, 185 N.W. 491, an approach is defined as "that part of the roadway which is essential to make the bridge accessible and convenient for public use."
It would be futile to collate or multiply further the definitions of the term "approaches." That the determination of what constitutes an approach to a bridge is a mixed question of law and fact, does not admit of argument. However, approaches to a bridge may only extend a reasonable distance. Lehigh Valley R.Co. v. Canal Board, 204 N.Y. 471, 97 N.E. 964, Ann. Cas. 1913C, 1228. *Page 132
It will also be admitted that the motoring public must have, and is entitled to, convenient access to the bridge; but in thus arranging for the public accommodation, the term "approaches" must be given a reasonable construction, and the authority may not transcend the limits of that term envisaged by the legislature and embark upon the construction of highways under the guise of building approaches to a toll bridge.
Considering the distance the so-called approaches are situated from the bridge on each side of the lake, and conceding that the public must be afforded reasonable access to the bridge, I am convinced that the majority have given the term "approaches" an unreasonable and unwarranted extension, and have permitted the toll bridge authority to improve streets and to construct highways within such a wide radius and so far removed from the bridge that it may improve almost any street which, in its discretion, it deems will encourage the use of the bridge, and the bridge project must bear the expense of such improvements through the medium of tolls.
Whatever else may be said of the $8,432,000 total cost, $4,682,000, or more than one-half, is the cost of constructing arterial highways. This total cost constitutes merely an "approach" to Federal funds.
Rem. Rev. Stat., Vol. 7A, § 6524-3, empowers the toll bridge authority to construct
". . . toll bridges upon any public highways of this state together with approaches thereto wherever the same is considered necessary or advantageous and practicable for crossing any stream, body of water, gulch, navigable water, swamp or other topographical formation. . . ."
but it has been vested with no authority whatever to construct highways as such. *Page 133
It would have just as much power and authority to provide a tunnel through the Cascade range, or a viaduct from Tacoma to connect with the proposed tunnel through the hill on the west side of the pontoon bridge in Seattle. They would be no more absurdities than these so-called "approaches."
When the power to act has been clearly conferred, as stated inIn re Yesler Way, 94 Wash. 427, 162 P. 536, which is relied upon by the majority, no one will dispute that such action of a proper legislative body or authority is final and not a reviewable question for the courts. That, however, is a widely different question from establishing highways under the guise of building toll bridges.
No one will dispute, either, that, the state highway department has the right to establish such highways, and the courts have always supported that right; but this toll bridge authority has no right whatever to establish highways under the guise of building toll bridges.
It is manifest the authority has abused its discretion, and has acted in utter disregard of the facts and circumstances in providing for such an approach. Sweitzer v. Industrial Ins.Commission, 116 Wash. 398, 199 P. 724.
I therefore dissent.
BLAKE, J., concurs with HOLCOMB, J.