(dissenting)—This is the fourth time this case has been before us in the past year. (Beezer v. Seattle, 60 Wn. (2d) 239, 373 P. (2d) 796 (1962), and Beezer v. Seattle, 60 Wn. (2d) 652, 375 P. (2d) 256 (1962); in addition, a motion for a stay of proceedings made by the city of Seattle was argued and denied without opinion on November 19, 1962.)
*576The present proceeding is an application for a writ of mandamus to compel the superior court to proceed with the trial of the cause on the merits as directed by this court in the decision first above cited.
The history of this litigation is described in some detail in the dissenting opinions in the two prior decisions.
The last paragraph of the first dissent reads as follows:
“Because the F.P.C. did not find it necessary to decide the question urged upon us by appellants and for the further reason that the court of appeals has exclusive jurisdiction of the controversy, it is my opinion that the trial court correctly held that it had no jurisdiction of the controversy, and its judgment dismissing the action should be affirmed.”
When the case came before us the second time, the United States Court of Appeals for the District of Columbia had just rendered its decision upholding the order of the Federal Power Commission, issued July 10, 1961, granting a license to the city of Seattle to construct and operate the Boundary Dam, and denying the P.U.D.’s application for a similar license with respect to its proposed adjacent Z Canyon project. See Public Utility Dist. No. 1 of Pend Oreille Cy. v. Federal Power Comm., 308 F. (2d) 318.2
*577The majority opinion of this court, denying the city’s motion to dismiss the P.U.D.’s appeal from the trial court’s dismissal of the case for lack of jurisdiction, concluded as follows:
“We are advised that Public Utility District No. 1 of Pend Oreille County will petition the Supreme Court of the United States to review, by certiorari, the circuit court’s affirmance of the order of the Federal Power Commission; and, pending such review, we do not accept the conclusions of the circuit court as res judicata of the issues heretofore determined by this court in its opinion of August 3, 1962. Nor do the conclusions of the circuit court render moot the issues presented to us for determination, unless, and until, the judgment of the circuit court becomes final and binding on Public Utility District No. 1 of Pend Oreille County, Washington.” (Italics mine.)
In the dissenting opinion, it was stated that the controversy before this court was then moot because the sole issue of fact to be tried in the superior court had become immaterial under the decision of the court of appeals. It was there said:
“ . . . It could become material only if the United States Supreme Court should (a) grant the public utility district’s proposed petition for certiorari and (b) subsequently reverse the decision of the Court of Appeals.
Now that the P.U.D. has petitioned the United States Supreme Court for a writ of certiorari to review the decision of the Court of Appeals, and its petition has been denied (372 U. S. 908, 9 L. Ed. (2d) 716, 83 S. Ct. 719), and notwithstanding the fact that the P.U.D. has petitioned for a rehearing of its certiorari petition and that the latter has been denied by the Supreme Court (372 U. S. 956, 9 L. Ed. (2d) 980, 83 S. Ct. 950), the majority of this court still persist that “we are so completely convinced that we are right in the position taken in our opinion” in the first Beezer case (60 Wn. (2d) 239, 373 P. (2d) 796), “that we are unwilling, absent a decision by the United States Supreme Court, to accept the opinion of the United States Court of Appeals as decisive of those particular issues.”
*578This position seems to me to be inconsistent with the statement of the majority in the second Beezer decision to the effect that the issues would not become moot “unless, and until” the judgment of the court of appeals should become final and binding on the P.U.D.
That judgment is now final and binding on the P.U.D., and the original issues before us have become moot, but the majority refuses to accept the decision of the only court that has jurisdiction to decide these issues unless and until the United States Supreme Court reviews that decision. Since that court has refused to review the decision of the court of appeals, I see no escape from the conclusion that the litigation is now ended.
Even if the views expressed in the two prior dissents be considered as premature, the issues before the superior court are now certainly moot. The very things that the majority previously said would cause the issues to become moot have now occurred, and, if there ever was any basis for a contrary holding, there is now no basis for the majority opinion in the present appeal.
In my opinion, the writ of mandamus should be denied.
Rosellini and Hamilton, JJ., concur with Donworth, J.
The pertinent portion of the decision of the Court of Appeals states:
“What precedes makes it clear that the State statute here involved, even if according to its own terms it is applicable, cannot make it impossible for Seattle as a federal licensee to condemn under the federal statute. Were it otherwise—i.e., if indeed the limitation of the state-granted right of eminent domain prevented the exercise of federally-granted power of condemnation in the area proscribed by it—PUD’s argument that it disables Seattle in this situation could not be upheld. For, it does not appear that the land owned by PUD and needed by Seattle is a part of the former’s electric plant or system which the Washington statute protects from condemnation by a city or town. The record does not show that the property here involved is used by PUD in its operations, or that in the future it will be useful to PUD in any way except in connection with its Z Canyon project which has been foreclosed by the grant of the license to Seattle. So, after the City’s license is finally affirmed and it begins condemnation, the site now owned by PUD will not be in any sense a part of its electric plant or system and the State statute, even if in this situation it were effective according to its terms, would not prevent Seattle from condemning the needed land.”