Bellingham Bay & B.C.R. Co. v. Strand

• Decision Date: 12 May 1892
• Citation: Bellingham Bay & B.C.R. Co. v. Strand, 30 P. 144, 4 Wash. 311 (Wash. 1892)
• Court: Washington Supreme Court
• Parties: BELLINGHAM BAY & B. C. R. CO. v. STRAND ET UX.

30 P. 144

4 Wash. 311

BELLINGHAM BAY & B. C. R. CO. v. STRAND ET UX.

Supreme Court of Washington

May 12, 1892

Appeal from superior court, Whatcom county; J. R. WINN, Judge.

Condemnation proceedings by the Bellingham Bay & British Columbia Railroad Company against H. B. Strand and Josephine M. Strand, his wife.From the judgment for damages, petitioner appeals.Reversed.

Dorr & Finch, for appellant.

Fairchild & Rawson, for respondents.

HOYT J.

This was a proceeding to condemn property for corporate uses under the act of February 1, 1888.Upon the trial, petitioner claimed the right to open and close in the introduction of testimony and argument to the jury.The court refused to allow it so to do, and this refusal is assigned as error.Petitioner contends that, as this was a trial on appeal from the award of damages by commissioners, and as petitioner was the appellant, the question presented for the determination of the jury was as to whether or not the award of damages made by the commissioners could be reduced; and that it, as the appealing party, had the affirmative.It further contends that, if the trial in the district court was unaffected by the proceeding before the commissioners, so far as this question is concerned, still, under the provisions of our statute, the petitioner has the right to open and close.A discussion of the first proposition would be of no general value, for the reason that, under our present statute, a case in which the question could arise is no longer possible; and the conclusion to which we have come in regard to the other contention makes it unnecessary, for the purposes of this case, that we should decide it.We shall therefore discuss only the second question above suggested.Under our statute which party is entitled to open and close?This question has been a much mooted one, and the authorities in regard thereto are absolutely irreconcilable.In some of the states, after a careful consideration, the courts have settled down in favor of one side of the proposition, while in others, after equally careful consideration, a directly opposite conclusion has been arrived at.The question is a new one here, and the construction of our own statute is directly involved.It therefore becomes our duty to investigate the same, not only in the light of the decisions of the courts of other states upon this particular question, but also in the light of established principles, as universally applied to the determination of questions of this nature.

It is conceded by the respondents that the general rule, as applied to questions of this kind, is that he who has the affirmative of the issue is entitled to open and close; that the party who will be defeated, if no proof were offered, has upon him the burden of proof, and, as a consequence of such burden, the right to open.All the cases which have sustained the right of the landowner to open and close have practically conceded the general rule as above stated, but have avoided the effect of the same by saying that, as the only question before the jury in this class of cases is as to the amount of damages, it follows that he who is claiming the damages must make proof thereof or be defeated.That this is true under statutes where the landowner is the moving party is unquestioned, and the reasoning of the courts upon that side of the question, as applied to that kind of a case, is entirely satisfactory to us.There the railroad already has the land, and no question of the taking of the same is involved.Many of the cases relied upon by respondents belong to this class, and with these we find no fault.A large number, however, which hold with the contention of respondents, are cases like the one at bar, where the corporation was the moving party; and it is this class of cases which it is impossible to harmonize with those upon the other side.Upon principle, under our statute, who has the affirmative of this issue?What is it necessary that the corporation should establish before a decree of condemnation can be granted it?We think that it is incumbent upon the corporation to establish at least two things: First, the necessity of the taking; and, second, the sum necessary to actually compensate the party whose property is taken.No one would contend that as to the first of these necessary requirements the petitioner does not have the affirmative, and to us it seems equally clear that the burden of proof should also be upon it to establish the second.The necessity for the taking having been established, the respondents contend that, in the absence of proof of damages, the petitioner would be entitled to a decree condemning the property to its use, with damages assessed against it in a nominal amount.If this contention is true, it would, of course, follow that the burden of proof upon this question of damages was upon the landowner, and he entitled to open and close.But we cannot subscribe to this doctrine at all.It never could have been the intention of the legislature to have thus placed the landowner at the mercy of circumstances.Under this rule, if in any case default should be made, the petitioner would get the property for nothing.Nominal damages never purport to be real damages.They are awarded where, from the nature of the case, some injury has been done, the amount of which the proofs fail entirely to show.But, in proceedings for the condemnation of land for corporate purposes, the constitution and statutes protect a landowner from a contingency of this kind.The land can only be taken upon the payment of the actual value, and the court, before it is justified in awarding a decree of condemnation, must find as a fact what the actual value of the property is.This it cannot do without proof.Under these provisions, the court would not be warranted in finding, from the fact that no proof was introduced upon the question of value or damages, that the property only had a nominal value, and that there were no resulting damages.If we are right in our view of the statute as above stated, it must necessarily follow that, in the absence of any proof as to damages, the petitioner would fail in its suit, and, if such would be the result of the want of any evidence upon this question, the universally conceded rule, as above stated, would give to the petitioner the right to open and close in regard to such question.The arguments in the opinions in that class of cases, holding that the petitioner has the affirmative of this issue, seem to us to be much more reasonable than those of the cases upon the other side.This latter class of cases do not seem to deny the general proposition that the party against whom judgment will be given, in the absence of proof, has the affirmative, but, by an ingenious course of reasoning, attempt to show that such rule is not applicable to cases of this kind, or announce the doctrine that the decree of condemnation would go with a judgment for nominal...