Ham, Yearsley & Ryrie v. Northern P. Ry. Co.

• Decision Date: 04 June 1919
• Docket Number: 14942.
• Citation: 107 Wash. 378,181 P. 898
• Court: Washington Supreme Court
• Parties: HAM, YEARSLEY & RYRIE v. NORTHERN PAC. RY. CO. et al.

181 P. 898

107 Wash. 378

HAM, YEARSLEY & RYRIE v. NORTHERN PAC. RY. CO. et al.

No. 14942.

Supreme Court of Washington, En Banc.

June 4, 1919

Appeal from Superior Court Grant County; Sam Hill, Judge.

Condemnation proceedings by Ham, Yearsley & Ryrie, against the Northern Pacific Railway Company and others. From the assessment of damages, and from the denial of a motion for a new trial and the entry of a verdict on the judgment, defendants appeal. Reversed and remanded, with instructions.

Mount Main, and Fullerton, JJ., dissenting.

Cannon & Ferris, of Spokane, and Williamson & Luhman, of North Yakima, for appellants.

Merritt Lantry & Merritt and Voorhies & Canfield, all of Spokane, for respondent.

HOLCOMB C.J.

The chief question in this case is the proper measure of compensation and damages in a condemnation proceeding.

On September 9, 1913, judgment was entered in the superior court for Grant County whereby 16 2/10 acres of land on Moses Lake in that county, were decreed subject to appropriation for a public use by the respondent, subject to the right of the respondent to acquire the same by condemnation, for the construction and maintenance of a dam site. That judgment was entered by direction of this court, culminating protracted litigation. See State ex rel. Ham, Yearsley & Ryrie v. Superior Court, 70 Wash. 442, 126 P. 945; State ex rel. Grant Realty Co. v. Superior Court, 76 Wash. 376, 136 P. 144; State ex rel. Ham, Yearsley & Ryrie v. Superior Court, 81 Wash. 690, 143 P. 310; and Grant Realty Co. v. Ham, Yearsley & Ryrie, 96 Wash. 616, 165 P. 495. Four years later, after the termination of the above-mentioned litigation, a trial of the condemnation proceeding before the court, sitting with a jury, resulted in the assessment of damages in the sum of $85. Motion for a new trial upon the ground that the verdict was inadequate and for error of law at the trial and for other reasons set forth in the motion was denied, and verdict entered upon the judgment.

The principal errors assigned by the appellants are:

(1) The court erred in rejecting appellants' offer of testimony that 'the land described in the petition and sought to be condemned by the petitioner for a dam site is, by reason of its surroundings and natural advantages, peculiarly adapted for a dam site.'

(2) The court erred in rejecting appellants' offer of testimony that the 'fair market value of the land sought to be condemned, taking into consideration all of the uses to which the land is adaptable, including that of a dam site, is from $40,000 to $60,000.'

(3) The court erred in rejecting appellants' offer of testimony that a fair market value of the land sought to be condemned with improvements located thereupon is approximately the sum of $45,000.

(4) The court erred in rejecting appellants' offer of testimony as follows: That the defendant companies subsequent to the date of the filing of notice of appropriation of the waters in Moses Lake by the petitioner, filed upon Moses Lake in conformity with the Laws of the State of Washington relative thereto, notice of appropriation of the waters of said lake for use both by storage and by diversion; that pursuant to said notice of appropriation and in due compliance with the law relative thereto the defendants diligently and continuously prosecuted to completion the necessary works for the impounding and diversion of 48,000 acre feet of the waters of said lake by the construction of a dam upon the property sought to be condemned; that by virtue of said dam, which was constructed and is now upon the land sought to be condemned, the defendants have stored, are now storing, and in possession of, approximately 48,000 acre feet of the waters which would otherwise have gone to waste; that they are the owners of 38,000 acres of irrigable land adjacent to and irrigable from the said Moses Lake with the waters so impounded in said lake; that works have been constructed and completed for the irrigation of approximately 3,200 acres of said body of land of which there is already reclaimed and being irrigated a considerable portion; that the petitioner proposes to immediately destroy the dam heretofore referred to as now existing on the property sought to be condemned, thereby taking of said dam site, and injuriously affecting other property of the defendants, to wit, the said 48,000 feet of water now stored and impounded in said reservoir, and that a reasonable value of the property thus deprived of the defendants is the sum of $114,000.

(5) The court erred in rejecting appellants' offer of testimony that 'the dam upon said property sought to be condemned cost the sum of $17,500, is in good condition and is serviceable.'

(6) The court erred in rejecting appellants' offer of testimony 'that the dam is in good condition, has not depreciated in value, and cannot be reproduced for a considerably larger sum.'

Assignments numbered 7 to 11, inclusive, are that the court erred in giving instructions numbered 2, 3, 6, 7, 8.

Assignment 12 is that the court erred in refusing appellants' motion for a new trial.

Assignment 13 is that the court erred in granting respondent's motion to retax costs.

Appellants state their proposition contended for on this appeal succinctly in their rely brief as follows:

(1) In a condemnation proceeding, can the owner show the value of his land for all purposes for which it is naturally adapted?

(2) In a condemnation proceeding, can an owner show market value of the land with the improvements existing at the time of trial?

(3) In a condemnation proceeding, can an owner show damages to other property injuriously affected by the taking of the specific property condemned?

(4) In a condemnation proceeding, is an owner entitled to witness fees for witnesses produced by him to testify to the market value of his premises?

Appellants insist that this court must answer each of these questions in the affirmative, but that the lower court answered each of them positively in the negative.

All of these questions must be answered abstractly in the affirmative, and it remains only to be seen, concretely, whether or to what extent they were answered in the negative by the court below.

The respondent stated in its brief that the site contended for is the only practicable dam site for impounding the waters of the lake. Respondents contend, however, that appellants only offer, in connection with their offers to prove the value of the land and damages, to prove the value of the land in connection with the waters of Moses Lake. The offer as shown in assignment of error No. 2 and by the statement of facts is not such an offer; that offer was a clear and unequivocal offer to show that the fair market value of the land sought to be condemned, taking into consideration all the uses to which the land is adapted, including a dam site, is from $40,000 to $60,000, and the offer shown in assignment No. 3 was that 'the fair market value of the land sought to be condemned, with the improvements located thereon, is approximately the sum of $45,000.'

The court instructed the jury (instruction No. 4) that they were to 'assess and allow to defendants for said land its fair and reasonable market value at the time of this trial, based on the evidence given in the case and upon your view thereof, and in conformity with all the instructions given you by the court.' In instruction No. 5 the jury were instructed that the 'market value as given in the instructions is the price which said real estate will bring when it is offered for sale by one who desires, but is not obliged, to sell it, and is brought by one who is under no necessity of having it.' Instruction No. 6 was that----

'In estimating the value of the real estate you may consider all of its capabilities and all of the uses to which it is applied, and for which it is adapted, but you shall not consider the fact, if you find such fact to be, of the unwillingness of the owner to sell or dispose of said property.'

These instructions were all correct and in accord with our decisions and the almost universal decisions upon this question; but the court further instructed the jury (instruction 7) that in ascertaining the value of damage they 'must not take into consideration any special value which said property may have to the petitioner by reason of its necessity, but the market value as hereinbefore defined to you'; 'nor should you take into consideration the value of defendants' property as a dam site.' The court further instructed the jury that----

'The waters of Moses Lake, in front of the defendants' lands which are sought to be condemned in this proceeding, are navigable waters within the law, and the right to impound, store, and use them is owned by the petitioner, and the defendants, by reason of the ownership of said lands abutting on said lake, would have no proprietary rights in any dam site upon which to construct a dam for the purpose of impounding and storing the waters of said Moses Lake, and would not be entitled to have the value of such dam site considered in estimating the value of the lands, as they have no interest in and to the waters of Moses Lake or any right to impound and store the same.'

In instruction No. 7 the respondent insists that the trial court adhered to the rule which held to the market value for all purposes, and clearly, specially, and unmistakably told the jury that in their determination of the value of the land they could consider its adaptability for a dam site. This is certainly not correct, when we find in the instruction that the court told the jury they were not to take into consideration the value of the land for a dam site.

This court has always adhered to the rule that the market value at...