City of Tacoma v. Bonnell

• Decision Date: 02 June 1910
• Citation: 58 Wash. 593,109 P. 60
• Court: Washington Supreme Court
• Parties: CITY OF TACOMA v. BONNELL et ux.

109 P. 60

58 Wash. 593

CITY OF TACOMA v. BONNELL et ux.

Supreme Court of Washington

June 2, 1910

Department 1. Appeal from Superior Court, Pierce County; C. M Easterday, Judge.

Condemnation proceedings by the City of Tacoma against J. E. Bonnell and wife. From the award, defendants, J. E. Bonnell and wife appeal. Affirmed.

A. R Titlow and Lorenzo Dow, for appellants.

T. L. Stiles, F. R. Baker, and F. A. Latcham, for respondent.

CHADWICK J.

This is an appeal from an award of damages under the statute authorizing cities of the first class to condemn property for public improvements. The jury rendered a verdict in form as follows:

'We, the jury in the above-entitled cause, duly impaneled and sworn to try the issues herein between the petitioner and the several defendants, do find and adjudge that the following sums be allowed to the several defendants for the value of lands taken, for damages to remaining lands not taken, for damages by reason of proposed street grade, and for cost of removing buildings:

'4th. To the defendants, James E. Bonnell and Mrs. James E. Bonnell, his wife, as the record owners of lots 17 and 18, block 5, Van Dusen's addition to Tacoma:

For value of land taken $1,500 00

For damage to remaining land by reason for severance 100 00

For cost of removing residence building 500 00

For value of residence building 500 00

For cost of removing store building 500 00

For value of store building

'________, Foreman.'

Numerous errors are assigned, the first being that the court abused its discretion in refusing to grant these appellants a separate trial or a trial with another defendant who had improved property, and in refusing to make divisions or separate groups of defendants in lesser numbers than the whole. The case is in the usual form, 56 parties being made defendants. The statute (Laws 1907, p. 316) has authorized the proceeding complained of, and we cannot say that the discretion of the court has been abused, unless it be made to appear that a party has been deprived of a fair trial. He must make an affirmative showing of prejudice. Standard Furniture Co. v. Seattle, 106 P. 901. No such showing is made in this case.

It is next contended that one 'H. B. Ritz was permitted to testify concerning the value of appellants' land, his opinion being based upon what land had been offered for.' The evidence in that regard follows: 'Q. Counsel asked you if you had made any sales, and you replied that you had property for sale in that portion of the city. Did you base your judgment upon the values placed upon the property which you had for sale and your efforts to sell the same in the open market? Mr. Titlow: We object to that as not competent; not the proper test. The Court: I will overrule the objection. (To which ruling of the court counsel for respondents Bonnell and wife duly excepted. Exception allowed.) A. Why, I base my opinion on not only property I have for sale there, but other properties in that vicinity in a general way.' Taken as a whole, we find no merit in this assignment. The witness had qualified himself, and had on direct examination given his opinion as to the value of the property. The record does not show any sales in the immediate vicinity of the property sought to be condemned, and all the witnesses, for both the petitioner and the defendants, expressed a general opinion as to values.

The court instructed the jury practically in the language of the statute, which reads as follows:

'(1) The value of land taken at date of trial.

'(2) The damages which will accrue to the part remaining because of its severance from the part taken, over and above any local or special benefits arising from the proposed improvement. Not lot, block, tract or parcel of land found by the court or jury to be so damaged shall be assessed for any benefits arising from such taking only.

'(3) The gross damages to any land or property not taken (other than damages to a remainder, by reason of its severance from the part taken), and in computing such gross damages shall not deduct any benefits from the proposed improvement. Such finding by the court or jury shall leave any lot, block, parcel or tract of land, or other property subject to assessment for its proportion of any and all local and special benefits accruing thereto by reason of said improvement.'

It is insisted that the form of verdict makes no provision for the so-called 'gross damages.' It is true that the verdict does not, but we are at a loss to know what damages could be included therein if it had so provided. When the jury had determined the damages for the land taken and then the damages resulting to the property not taken, it had done all that it could do, and, while the trial court was perhaps justified in submitting the third item to the jury, for it is, as we have said, in ...