(dissenting). — I am unable to concur in the foregoing opinion. I think that, under the peculiar provisions of its charter, the city of Olympia is alone responsible to adjoining owners for damages to their property caused by the- construction and operation of a railroad in the street in front thereof. Sec. 10 of said charter provides that no railroad shall be laid down in any of the streets of the city until such damages have been ascertained *12and paid, and contains an express provision that such damages shall be ascertained in the manner -provided for in §113. The provisions of said §113 are applicable to the ascertainment of damages as between the city and the property owner, but are entirely inapplicable as between a private corporation and such owner. It follows that, if the provisions of said sections are to be given force, there was no way provided by law by which the railroad could have proceeded to have the damages ascertained and paid before its construction, while the power of the city in that regard was ample. I see no reason whatever why these two sections cannot be given full force, and, if they can, the well settled rule of construction makes it the duty of the courts so to do. The provisions of said sections are plain and unequivocal, and thereunder it is made the duty of the city not to allow a railroad to be constructed on any of the streets of the city until the damages have been first ascertained, and the machinery for the ascertainment of such damages is fully provided, as between the city and the adjoining owner. In view of these facts, I think it should be held that the city, in legal effect, so far as the rights of adjoining proprietors are concerned, is the agency which affects their property, that their rights must be adjusted with the city. It does not follow that the city will necessarily bear the burden of the damages which may be assessed. It has power to fully protect itself at the time it grants the right to the railroad to occupy the street. The numerous authorities cited in the opinion of the majority of the court do not seem to me to be at all applicable to the case at bar. In none of them was the question of the construction of a charter at all like this one involved. This case, to my mind, turns entirely upon the construction of the two sections of the charter above referred to; and I see no escape from the conclusion that, whenever the city passes an ordinance authorizing the use of any of its streets *13for railroad purposes, it becomes responsible to those owning property adjoining such streets for all damages growing out of an occupation by a private corporation in pursuance of the provisions of the ordinance granting such rights, and that under such provisions there could be no liability on the part of the corporation occupying the street, so long as it kept within the terms of the ordinance authorizing it so to do. The ordinance granting rights to the defendant in this case was therefore material; and, if the pleading on the part of the defendant showed that it was acting thereunder, and in pursuance of the rights thereby granted, such pleading set up a good defense to the action. Under the circumstances of the case the city of Olympia might not have been a necessary party to the action; but no harm could result to the plaintiffs by having the whole matter adjudicated in one suit, rather than to have the question of the liability of the railroad company first determined, and then, if it was found that it was not liable, have the question of the liability of the city determined in a separate action. In my opinion the demurrer to the separate defense was rightfully overruled; no error prejudicial to the plaintiff appears in the record; and the judgment ought to be affirmed.