Fruitland Irr. Co. v. Smith

• Decision Date: 15 July 1909
• Citation: 102 P. 1031,54 Wash. 185
• Parties: FRUITLAND IRR. CO. v. SMITH et al.
• Court: Washington Supreme Court

102 P. 1031

54 Wash. 185

FRUITLAND IRR. CO. v. SMITH et al.

Supreme Court of Washington

July 15, 1909

Appeal from Superior Court, Stevens County; D. C. Carey, Judge.

Condemnation proceedings by the Fruitland Irrigation Company against George W. Smith and others. From a judgment awarding damages defendants appeal. Affirmed.

Judson & Rochford, for appellants.

Osee W Noble and W. C. Stayt, for respondent.

MOUNT J.

The appellants in this case were awarded damages in the sum of $380 for land taken by the respondent for a right of way for an irrigation canal across appellants' premises. The appeal is taken from the award of damages.

We shall not refer to errors alleged which do not go to the propriety or justness of the award, because such errors, if made, cannot be reviewed upon this appeal. Western American Co. v. St Ann Co., 22 Wash. 158, 60 P. 158; Seattle & M. R Co. v. Bellingham Bay & E. R. Co., 29 Wash. 491, 69 P. 1107, 92 Am. St. Rep. 907.

It appears that after the lower court had made the preliminary adjudication of the public use and necessity for the taking of appellants' property, and directed the question of damages to be tried 'before a jury, or, if a jury be waived, as in civil cases in courts of record, in the manner prescribed by law, then before the court or judge thereof,' the respondent, on January 30th, served a notice upon appellants' counsel of record that on February 10, 1908, respondent would apply to the court to have the case set down for trial. On February 10, 1908, appellants appeared by counsel in the cause and made no objections, either to the notice or the service thereof, or to the setting of the case for trial, and made no demand for a jury; a jury having been waived. The court thereupon fixed the date of the trial at 2 o'clock on February 14, 1908. For some reason not appearing in the record, the case was not brought on for trial until February 26, 1908. At that time the appellants appeared and moved for a continuance of the trial, upon the ground that they were not ready for trial, because the lands were then covered with snow 18 to 24 inches in depth, and because the stakes showing the right of way were completely covered and could not be found, and witnesses could not be shown the character of the soil on the line of survey, and could not be obtained to testify to the value of the lands taken or damaged; that appellants had been informed by one of their counsel that the trial was not to take place until after the snow had disappeared. This motion was denied by the court, and appellants base error thereon.

It is true that the...