Grays Harbor Boom Co. v. Lownsdale

• Citation: 54 Wash. 83,102 P. 1041
• Court: United States State Supreme Court of Washington
• Decision Date: 10 July 1909
• Parties: GRAYS HARBOR BOOM CO. v. LOWNSDALE et ux.

102 P. 1041

54 Wash. 83

GRAYS HARBOR BOOM CO. v. LOWNSDALE et ux.

Supreme Court of Washington, En Banc.

July 10, 1909

Appeal from Superior Court, Chehalis County; O. V. Linn, Judge.

Proceedings by the Grays Harbor Boom Company to condemn the property of J. P. O. Lownsdale and another. From the award of damages petitioner appeals. Reversed, and new trial ordered.

J. B Bridges and Ben Sheeks, for appellant.

J. C Cross, Thos. Vance, and A. Emerson Cross, for respondents.

CHADWICK J.

This case was tried in the superior court for Chehalis county by the late Judge Linn. Judge Linn was at the time the judge elected and presiding in Thurston county. He overruled the motion for a new trial, and an appeal was taken; but, before the statement of fact was ready for settlement, he died. Attempting to comply with the statute, the Hon. Mason Irwin, presiding judge for Chehalis county, called Hon. John R. Mitchell, who had been appointed and had qualified as Judge Linn's successor, to settle the statement of fact. Section 5061, Ballinger's Ann. Codes & St. (Pierce's Code, § 678), reads as follows: 'If the judge before whom the cause was pending or tried shall from any cause have ceased to be such judge he shall, notwithstanding, settle and certify, as the late judge, any bill of exceptions or statement of facts that it would be proper for him to settle and certify if he were still such judge, and such acts on his part shall have the same effect as if he were still in office; and he may be compelled by mandate so to do, as if still in office. If such judge shall die or remove from the state while in office or afterwards, within the time within which a bill of exceptions or statement of facts, in a cause that was pending or tried before him, might be settled and certified under the provisions of this chapter, and before having certified such bill or statement, such bill or statement may be settled by stipulation of the parties with the same effect as if duly settled and certified by such judge while still in office. But if the parties cannot agree, and if such judge, when removed from the state, does not attend within the state and settle and certify a bill of exceptions or statement of facts in case one has been duly proposed, his successor in office shall settle and certify such bill or statement in the manner in this chapter provided, and in so doing he shall be guided, so far as practicable, by the minutes taken by his predecessor in office, or by the stenographer, if one was in attendance on the court or judge, and may, in order to determine any disputed matter not sufficiently appearing upon such minutes, examine under oath the attorneys in the cause who were present at the trial or hearing, or any of them.' We are asked to hold (1) that the statute makes no provision for the certification of the facts occurring upon the trial by a successor of the trial judge who may have died, and (2) that, if a successor can so act, it was the duty of the judge presiding in Chehalis county to perform that function. The only reference to the probable death of a trial judge in the statute is found in the words 'if such judge shall die or remove from the state.' The succeeding parts of the statute are drawn on the theory of removal from the state, and, under a technical construction, it might be held that there was an omission affecting appellant's right of appeal. We think, however, that the clear intent of the statute is to cover any case, whether it be occasioned by death, disability, or removal from the state. To hold otherwise would deny a substantial right, if not a constitutional guaranty. The second point is also without merit. It is insisted that judges have successors, but courts are legal creations. Counsel says: 'When the case was tried, it was tried by the judge of the superior court of Washington for Chehalis county, and, while the personnel or judge of the court before whom the case was tried was a visiting judge, the successor in office of that visiting judge is not the one contemplated by the statute to settle and certify the statement of facts.' This argument furnishes its own answer. If it be sound, Judge Mitchell while settling the statement of facts was as much the judge of the superior court of Chehalis county where he was presiding as was Judge Linn who tried the case, or as is Judge Irwin, and was therefore a proper judge to certify the statement of fact. The motion to dismiss the appeal is denied. This is a proceeding brought by the Grays Harbor Boom Company to condemn certain lands lying adjacent to its boom grounds, a tidal slough known as 'Jessie' slough, and a way along it for the convenience of its employés, and the shore rights of respondents, all of which it alleges are necessary to the prosecution of its enterprise as a public boom company. The petitioner is a boom company organized under the laws of the state of Washington, and for a number of years last past has operated a boom on the Humptulips river. There have been a number of cases decided in this court involving the rights of the respective parties. In May, 1906, the company was enjoined by the superior court for Chehalis county from further use of its boom grounds to the injury of the banks and shores of respondents' lands. This case was affirmed on appeal. 44 Wash. 699, 87 P. 943. The decision was later modified so as to permit appellant to institute condemnation proceedings. This it did. In State ex rel. Burrows v. Superior Court, 48 Wash. 227, 93 P. 423, 17 L. R. A. (N. S.) 1005, the question of necessity and the extent of appellant's right under its power of eminent domain was settled by this court, and the case sent back for trial on the question of damages. From an award in favor of respondents, the petitioner has appealed.

Numerous errors are assigned. All those which we regard as material go to the theory of damages entertained by respondents, and upon which the court permitted the evidence to go to the jury. The evidence of the respective parties varied in a wide degree. Respondents' witnesses fix the amount of the damages in sums running from $25,000 to $60,000; while the petitioner's witnesses fixed the value of respondents' lands in sums not exceeding $2,000. It is insisted by respondents that we should not inquire into the question of damages or grant a new trial because the verdict was excessive. To sustain this contention, they cite the opinion of Judge Hanford in the case of United States v. Freeman (D. C.) 113 F. 370, wherein he said upon the authority of Railway Company v. O'Meara, 4 Wash. 17, 29 P. 835, Tacoma v. State, 4 Wash. 64, 29 P. 847, Long v. Billings, 7 Wash. 267, 34 P. 936, and Western American Co. v. St. Ann Co., 22 Wash. 158, 60 P. 158, that: 'I adhere to the ruling made by this court in the case of U.S. v. Tennant (D. C.) 93 F. 613, to the effect that in condemnation cases in this state the law does not authorize the court of original jurisdiction to set aside the verdict of a jury on the ground that the appraisement was erroneous or unfair. Upon a re-examination of the question, I am confirmed in the opinion that the statutes of this state as expounded by its Supreme Court prescribe a special and peculiar mode of procedure distinct from the practice in civil actions. Therefore the provisions of the civil practice act authorizing courts in which actions are tried to set aside verdicts for error in assessment of damages are not applicable, and do not authorize the same courts to grant new trials in condemnation cases.' Without discussing the justice or propriety of that decision or the cases upon which it rests, the record indicates to us that it should not be applied here. Admitting that the rule is well founded, the cases do not hold that a verdict concludes the law of the case. Although, if a case be tried without error, a court should be reluctant to grant a new trial because of excessive damages, when an improper element of damages is injected into the case, it becomes the duty of the court to set aside the verdict. Petitioner was entitled to have the question of damages submitted on a proper measure. This the court did not do. Without quoting from the evidence, it is enough to say that the witnesses on behalf of respondents base their estimate of damages, in part at least, upon the value of the property as a boom site, or in consideration of its adaptability for a mill site or for commercial purposes. A motion was made to strike this testimony, and it was overruled by the court. The court did, however, instruct the jury as follows:

'In estimating the value or damage, you must not take into consideration the special value to the company by reason of its necessity, but the market value. Nor should you take into consideration the value of defendant's property as a boom site.'

'The waters of the Humptulips river and Jessie slough in front of defendant's lands are navigable waters within the meaning of the law, and defendant, by reason of the ownership of the lands, abutting on said river and slough, would have no proprietary rights in any boom site furnished by the channels of said waters, and would not be entitled to have the values of such boom site considered in estimating the value of his lands, as his proprietary interest does not come below the line of ordinary high tide.'

These instructions correctly stated the law. The right of maintaining booms in a navigable tidal stream of the state is not a right incident or...