Clifford v. State

• Decision Date: 24 April 1944
• Docket Number: 29153.
• Citation: 148 P.2d 302,20 Wn.2d 527
• Parties: CLIFFORD et ux. v. STATE.
• Court: Washington Supreme Court

148 P.2d 302

20 Wn.2d 527

CLIFFORD et ux. v. STATE.

No. 29153.

Supreme Court of Washington, En Banc.

April 24, 1944

Action by Raymond W. Clifford and wife against the State of Washington to recover for the unlawful encroachment and casting of material upon plaintiffs' realty by defendant in its excavation for and construction of a building. From a judgment for plaintiffs, defendant appeals.

Affirmed.

ROBINSON JEFFERS, and MALLERY, JJ., dissenting.

Appeal from Superior Court, Thurston County; D. F Wright, judge.

Smith Troy and Harold A. Pebbles, both of Olympia, for appellant.

Macbride & Williams, of Seattle, for respondent.

MILLARD Justice.

This action was instituted to recover damages in the amount of twenty-five thousand dollars alleged to have been sustained by plaintiffs as a result of the unlawful encroachment and casting of material upon their real property by defendant in its excavation for and construction of a building upon the state capitol grounds at Olympia. Defendant admitted encroachment upon plaintiffs' real property but denied damage to the property in any amount as a result of that invasion. The cause was tried to the court which found that defendant in the prosecution of the construction of a new building, known as the transportation building, in the state capitol group, acting pursuant to law, made arrangements for excavating for the foundation of said building and for the dumping of the excavated material upon a slope then existing within the capitol grounds and located in close proximity to the common boundary of plaintiffs' property and defendant's property (plaintiffs' northerly boundary and defendant's southerly boundary). Acting through its engineering representatives and through a contractor engaged for that purpose, defendant began and continued the excavation and dumping and created a large fill of clay earth and gravel extending south of its building site toward the common boundary with plaintiffs.

'* * * Said excavation and dumping so carried on by the State of Washington through said Committee at the location aforesaid, has caused slips or slides of material to occur, and as the same occurred defendant has caused additional material to be deposited to replace that which has slipped or washed away, the result of which has been to produce large movements of earth, rock and debris and surface growth upon the aforesaid slope, down the aforesaid slope, and across the aforesaid common boundary. Said slips and slides are of a continuing nature and occurred at various times since said fill was put in, one slide having occurred a few weeks prior to the date of trial. As an immediate and direct result of said slips and slides of material, large masses of earth, rock and debris and surface growth have been deposited upon plaintiffs' property, by reason of which the valuable lawn, gardens, ornamental trees and shrubs then existing upon the Plaintiffs' property have been buried and destroyed. As a further and immediate direct result of said slips and slides and deposits of material upon plaintiffs' property, the lower part of plaintiffs' property has been used by the State as the toe of said slope and is burdened with earth, rock, debris and surface growth deposited thereon. As a further and immediate result of said slips and slides and deposits of material, water from Defendant's property drains onto Plaintiffs' property and the natural drainage of Plaintiffs' property as it formerly existed has been changed so that drainage of water from Plaintiff's property has been impeded, resulting in the forming of a boggy area on the lower part of Plaintiffs' property. That as a direct result of the aforesaid acts of the State of Washington and the encroachment upon and use of Plaintiffs' property as the toe for said slope and by reason of said slides and by change of drainage as aforesaid, the fair and reasonable market value of the Plaintiffs' property has been reduced and depreciated in the sum of Ten Thousand ($10,000) Dollars, and Plaintiffs have been damaged in said amount.'

Judgment consonant with the foregoing findings was entered in favor of plaintiffs. Defendant appealed.

Counsel for the state assign as error the refusal of the court to consider appellant's evidence on the question of damages. It is argued that while the court listened to the testimony of the witnesses, observed their demeanor on the stand and personally viewed the premises, it is obvious from a reading of a portion of the court's memorandum opinion that the court refused to consider the appellant's evidence on the question of damages to respondents' real property. The court's memorandum opinion reads as follows:

'It is patent that the witnesses for the State in this case proceeded upon a fundamentally wrong idea. They conceded encroachment by the State, but insisted that because the property was more valuable than the usual residence in Olympia and that because the grounds were larger than is usual for the average residence, that the market value had not been decreased because a buyer would not desire the additional acreage.

'The Court viewed the property and the fact of encroachment and damage is very apparent. Because of the view just expressed, the only testimony left in the record is the testimony of plaintiff's witnesses, who, are men of experience and ability in their line.

'In accordance with their testimony and the Court's belief, judgment may be taken for the plaintiff in the sum of ten thousand dollars ($10,000).'

Counsel for the state concede that ordinarily the memorandum opinion of the trial court constitutes no part of the record on appeal, but insists, citing as sustaining authority English v. Hetherington & Berner, Inc., 7 Cir., 71 F.2d 613, that where, as in the case at bar, the trial court in its written opinion passes on the admissibility of evidence, which was the effect of the court's refusal to consider appellant's evidence on the question of damages, the trial court's opinion to that extent becomes a part of the trial record and should be considered on appeal. To further buttress their position, counsel for appellant cite subd. 5, Supreme Court Rule IX (193 Wash. 11-a), which provides that where the trial court has filed a written memorandum giving its reasons for its decision the same shall be included as a part of the statement of facts. In Quigley v. Barash, 135 Wash. 338, 237 P. 732, in answer to the contention of appellant that the trial court, at the conclusion of the testimony, gave an oral decision contrary to its written findings, we held that the court's oral decision was not a finding of fact and that the final ruling was 'within the breast of the court' until it entered its formal findings. See, also, Colvin v. Clark, 96 Wash. 282, 165 P. 101; In re Patterson,

98 Wash. 334, 167 P. 924; Swanson v. Hood, 99 Wash. 506, 170 P. 135.

In Johnsen v. Pheasant Pickling Co., 174 Wash. 236, 24 P.2d 628, we held that under rule of court III, subd. 4, 159 Wash. XXXIV--the old number of the rule cited by appellant in the case at bar--which provides that a memorandum decision of the trial court if brought to this court on appeal shall be made a part of the statement of facts, will be stricken if included in the transcript and not made a part of the statement of facts.

As the memorandum opinion was not made in pursuance of statute or court rule nor was it incorporated in and made a part of the court's formal findings it is no part of the findings of fact and judgment entered pursuant thereto and cannot be used to impeach the findings or judgment. The trial court's memorandum opinion was merely an informal expression of the court's views and forms no part of the findings or judgment.

'While it is said to be proper for the trial court in rendering a decision to embody its reasons in either a written or oral opinion, such opinion does not constitute either findings of fact or conclusions of law. This being so, it is not commendable practice for a court in its formal findings to refer to and incorporate a portion of a written opinion on file.' Bancroft's Code Practice and Remedies, Vol. 2, § 1682, p. 2161.

'It is said to be commendable practice for a trial court to furnish counsel or file with the records a statement announcing the reasons for its decision. Such a statement, however, is in no way binding; its only function is to indicate the judge's opinion as to the points involved and his views as to the law applicable. The statement of reasons constitute no part of the decision of the court, is insufficient as a finding of fact, and should not be incorporated into the conclusions of law; it may indeed be modified or nullified by the making of findings of fact and conclusions of law, or by the entry of a judgment, inconsistent therewith, and it may not be employed to impeach the findings.' Bancroft's Code Practice and Remedies, Vol. 2, § 1615, pp. 2081, 2082.

While a memorandum opinion of the trial court may be brought to this court on appeal, if made a part of the statement of facts, such memorandum opinion is not made in pursuance of statute nor required by any rule of court hence it cannot be used to impeach the court's findings or judgment.

We are clear from our reading of the memorandum decision that the trial court did not in effect strike the evidence of appellant's expert witnesses but found that that evidence was out-weighed by the testimony of respondents' expert witnesses on value.

The findings of the trial court on conflicting evidence will not be disturbed unless the evidence clearly preponderates against the findings. The evidence is as follows:

In 1931 respondents purchased the property in question. It consists of three parcels or lots upon which is a...