The opinion of the court was delivered hy
Gordon, C. J.In June, 1891, the Seattle & Montana Railway Company took possession and constructed its railroad over and across respondent’s property in Snohomish county, the amount of the land so appropriated being 8.50 acres. In May, 1898, the appellant herein succeeded to the interest of the Seattle & Montana Railway Co., and in February, 1899, instituted this proceeding in the superior court of Snohomish county for the purpose of condemning the premises in question, which, as herein-before stated, had prior thereto been appropriated by its predecessor. The court, having found that the premises were requisite and necessary for the railroad enterprise,' proceeded, without a jury, to the ascertainment of damages, and found that the value of the land taken was $170, and the value of the rails, ties, bolts, fishplates, etc., placed upon said land by the railway company was $2,500, and thereupon gave judgment against the company for the sum of $2,670. The railroad company appeals, and assigns as error the inclusion in the judgment of the value of the rails, ties, bolts, fishplates, etc.
A similar question was presented and passed upon by this court in Bellingham Bay & British Columbia R. R. Co. v. Strand, 14 Wash. 144 (44 Pac. 140). In that ease the railroad company had built two small buildings or cottages upon the premises, which it thereafter sought to condemn, and their value was separately found by the jury and included in the judgment. We reversed the judgment for that reason. The question is not controlled by the rule of the common law, under which structures erected by tort*191feasors become part of the real estate. Unlike tort-feasors at common law; the railroad possessed the power to condemn and acquire title, the condition upon which it might do so being that it should make just compensation; and it would be monstrously unjust to hold that it should be required to pay the value of the improvements which it had placed upon the land prior to its acquisition. The law upon the subject is well settled, and the question does not justify extended discussion. Justice v. Nesquehoning Valley R. R. Co., 87 Pa. St. 28; Louisville, N. O. & T. R. R. Co. v. Dixon, 63 Miss. 380 (56 Am. Rep. 809); Toledo, etc., R. R. Co. v. Dunlap, 47 Mich. 456 (11 N. W. 271); Oregon Railway & Navigation Co. v. Mosier, 14 Ore. 519 (13 Pac. 300, 58 Am. Rep. 321); Lyon v. Green Bay Minn. Railway Co., 42 Wis. 538; Albion R. R. Co. v. Hesser, 84 Cal. 435 (24 Pac. 288); Jacksonville, T. & K. W. Ry. Co. v. Adams, 28 Fla. 631 (10 South. 467, 14 L. R. A. 533).
The cause must be remanded, with directions to the lower court to modify its judgment by eliminating therefrom the value of the rails, ties, bolts, fishplates, etc. The appellant will recover the costs of this appeal.
Duwbaií, Peavis and Fullertoh, JJ., concur.