Chicago, M. & St. P. Ry. Co. v. Alexander

• Decision Date: 07 September 1907
• Citation: 47 Wash. 131,91 P. 626
• Court: Washington Supreme Court
• Parties: CHICAGO, M. & ST. P. RY. CO. v. ALEXANDER et al.

91 P. 626

47 Wash. 131

CHICAGO, M. & ST. P. RY. CO. v. ALEXANDER et al.

Supreme Court of Washington

September 7, 1907

Appeal from Superior Court, Pierce County; W. H. Snell, Judge.

Condemnation proceedings by the Chicago, Milwaukee & St. Paul Railway Company of Washington against Hubbard F. Alexander and others. From the judgment assessing the damages in a certain amount, plaintiff appeals. Reversed and remanded for a new trial.

H. S. Griggs, H. H. Field, and Wm. P. Reynolds for appellant.

Hudson & Holt and J. M. Ashton, for respondents.

CROW J.

Action by the plaintiff, Chicago, Milwaukee & St. Paul Railway Company, against Hubbard F. Alexander and others, to condemn land near the city of Tacoma for a right of way. After an order had been entered adjudging the proposed use to be public, a jury was impaneled, and awarded the defendants $55,205 for the value of the land taken and damage to the land not taken. From a judgment assessing damages in this amount, the plaintiff has appealed.

Respondents' land, with a frontage of 455 feet on the east bank of the Puyallup river, consists of a little less than 9 acres. Its north line abuts on the interurban electric railway track which crosses the Puyallup river near respondents' northwest corner. The appellant is condemning a right of way for its tide-water line, which crosses the nine-acre tract from southeast to northwest, dividing it into two parts, but does not cross the river. It is also condemning a right of way over the south side of respondents' land for its city line, which crosses the river from east to west. Appellant filed and served on respondents profiles of its proposed stationary bridge across the Puyallup river together with a certificate of its approval by the proper United States authorities. This bridge will not touch respondents' land or water front. The appellant is appropriating 2.35 acres, leaving 3.25 acres fronting the Puyallup river, and 3.21 acres separated from the river by appellant's tide-water line. Respondents' land is located a considerable distance inland from Puget Sound. Appellant's city line of railway will be constructed on an embankment from 25 to 27 feet in height, and its tide-water line on an embankment about 5 feet in height above the surface of respondents' land. The appellant, by stipulation on file, has agreed to construct and forever maintain a suitable crossing between respondents' two remaining tracts over appellant's tide-water line wherever respondents desire, and also such culverts and drains as may be necessary to afford the land as good drainage as it has by nature.

The respondents introduced one Nicholson, a civil engineer, who, over appellant's objections, was permitted to testify that if the Puyallup river should hereafter be made navigable for large vessels, and the United States government should require appellant to construct a drawbridge across the river on its city line, such drawbridge, when opened for the passage of vessels, would obstruct respondents' water front to the extent of about 76 feet. The purpose of this evidence was to show that such obstruction would interfere with steamships and other vessels that might come from Puget Sound and stop at respondents' water front. At present the river has but little depth. It is not shown that any vessels larger than steam tugs have ever passed the interurban bridge. The possibility of the river being dredged to respondents' land by the United States government is very remote. There is no certainty that the government will ever require a drawbridge near respondents' land. If it should do so, respondents can, in another action, then recover such damages as they may sustain by reason thereof. The appellant is not seeking to condemn or interfere with any of respondents' shore rights. The United States government has authorized a stationary bridge which does not touch their land. No other bridge may ever be required. This evidence was calculated to mislead the jury into awarding damages which the respondents were not entitled to recover, and its admission was therefore erroneous.

One Baker, who owns three or four acres of similar land near that of respondents, was, over appellant's objection, permitted to testify that he held the same at $15,000 per acre. This evidence, admitted on direct examination, was improper and constituted error, not being a correct test of value. An owner might not be willing to sell at any price, and might, therefore, place an excessive value on his own property. The issue before the jury was the fair market value of the land taken, and not what some owner might arbitrarily ask for similar land held by him.

The respondents introduced the deposition of one Stokes, a resident of Portland, Or., and manager of a large sawmill and manufacturing plant at Bucoda, Wash. This witness was not shown to be an expert on values, nor was he familiar by acquaintance and experience with lands in or near the city of Tacoma. He testified that, on a trip to Tacoma, he looked for a site for a large lumber mill and manufacturing plant where he could be near tide water with the advantages of navigation; that he investigated the respondents' nine-acre tract; that he priced some land on the Sound, near Old Town in Tacoma, several miles distant; that he regarded respondents' land as especially valuable for a large mill if the entire nine acres could be used in one tract without any railroad crossing it; that he examined the land after this condemnation proceeding had been commenced, when it was known that it would be divided into two tracts by appellant's tide-water line; and that the respondent Alexander wanted to know if he could use the tract as it would be thus divided. He was about to state a conditional offer he then made to Alexander, when appellant objected, but, its objection being overruled, the witness stated his offer, which he had made on condition that the land contained something over eight acres, and would not be divided by any line of railroad. Afterwards the appellant interposed a motion to strike this answer. Sustaining this motion the trial judge in part said: 'If a man is offered a certain price in good faith by a man who is liable to carry the offer out, that would be the best criterion of the value of property. * * * The Supreme Court of the United States however, reason that offers are not evidence of what property will bring, and it seems, in Parke v. City of Seattle, 8 Wash. 78, 35 P. 594, that our own Supreme Court has plainly affirmed that doctrine, although in that case the offer sought to be proven was proffered from the mouth of the plaintiff to whom the offer was made, and the man making the offer was not on the witness stand and subject to cross-examination. Yet I think they have very definitely settled the doctrine that that class of testimony is not competent to fix values. I think that the fact might be brought out in another way, and in a way which would avoid the error or the danger that the Supreme Court of the United States and the Supreme Court of this state seem to feel has followed that class of testimony. * * * I think that this testimony, or rather, this offer, as proven by this witness, is hypothetical and based on a condition which could not exist, and for that reason, and for the further reason that class of testimony is not a proper way to prove values, this question and this answer may be stricken. I think, however, that you may ask this witness how much that property is worth, and he may answer what he considers it worth, and I think he might furthermore be permitted to back up his opinion by saying that he would give that for the property. * * * But, if this witness is willing to come on the stand and give it as his...