In re City of Seattle

• Citation: 52 Wash. 226,100 P. 330
• Parties: In re CITY OF SEATTLE. v. CITY OF SEATTLE. MANHATTAN BLDG. CO.
• Decision Date: 19 March 1909
• Court: Washington Supreme Court

100 P. 330

52 Wash. 226

In re CITY OF SEATTLE.

MANHATTAN BLDG. CO. v. CITY OF SEATTLE.

Supreme Court of Washington

March 19, 1909

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

In the matter of the petition of the City of Seattle for the ascertainment by a jury, or by the court in case a jury be waived, of compensation for property taken and damaged by the changing and establishment of the grades and grading and regrading of Olive street and other streets, pursuant to Ordinance No. 13,797 of such city, approved May 31, 1906. From a judgment entered on a verdict ascertaining the amount of compensation to be paid to the Manhattan Building Company the latter appeals. Affirmed.

If the owner of property may testify concerning his losses by a given act, regardless of rules limiting the number of witnesses as to damages, this rule applies to persons who own damaged property by a direct title in themselves, and does not apply to a stockholder in a corporation.

Douglas Lane & Douglas, for appellant.

Scott Calhoun and King Dykeman, for respondent.

FULLERTON J.

The city of Seattle by ordinance changed the established grades on certain of its streets, and directed that the streets be reconstructed and regraded so as to make them conform to the new grades so established. The required grades changed the surface contour of the streets, necessitating cuts and fills, and the consequent taking and damaging of the private property abutting thereon. This action was begun for the purpose of condemning the property required to be taken and damaged, and to determine the just compensation to be paid therefor. Among the parties made defendant to the proceedings was the appellant Manhattan Building Company which held a lease on a certain block bounded by streets directed to be regraded, which lease, at the time of the trial, had 14 years and 9 months to run. On this block it had constructed buildings of the estimated value of $200,000, containing storerooms and housekeeping apartments. After the service of summons upon its the appellant gave notice of its appearance, and subsequently filed a cross-petition, in which it set out its interest in the property, and a statement of the injury it would suffer by the change of the grade of the streets as proposed to be made. This cross-petition was stricken by the court, on motion of the city. Thereafter, and without any further pleading on the part of the appellant, a trial was had before a jury, to ascertain the amount of compensation to which the appellant was justly entitled, which trial resulted in a verdict in its favor of $23,500. From a judgment entered on the verdict, this appeal is taken.

It is assigned, first, that the court committed reversible error in striking the appellant's cross-petition. This contention is founded upon the provisions of the eighth section of the act under which the city proceeded (Laws 1905, p. 84 et seq., c. 55), and the decision of this court in the case of Seattle v. Park, 42 Wash. 152, 84 P. 644. In the case cited the court quoted from the section referred to, and said that the language used therein did authorize the filing of a cross-petition, and that it was error on the part of the trial court to strike the same; but it held the error harmless in the particular case, owing to the disposition the court subsequently made of it. By reference to the section cited it will be observed that it is only a person who owns an interest in the property sought to be taken or damaged who was not made a party to the original proceedings, and who comes into the proceedings for the purpose of having the value of his interest determined, that is required 'to file the statement of his interest in and to a description of the lot, parcel of land, or other property, in respect to which he claims compensation.' A party named in the original petition is neither required nor expected to file pleadings of any kind, and whether he shall be permitted so to do rests in the sound discretion of the trial court. In the opinion cited it is not made clear whether the defendants who attempted to file a cross-petition were parties named in the original petition or not, but, regardless of this fact, we are clear that a correct construction of the statute makes the right depend on the condition pointed out. It was not error in this instance to strike the cross-petition.

The appellant was named defendant in the proceedings with some 200 others. Prior to the impaneling of the jury it filed in writing with the court a demand for a separate jury. This demand was refused, and it thereupon participated in the selection of the jury with other defendants. In selecting the jury it objected to being required to join with the other defendants in exercising peremptory challenges, and damanded the right to challenge separately. This demand was also refused. The court tried the claims of the different defendants separately, and when the question of the amount to be allowed the appellant came on for hearing--it being the one hundred and forty-fourth of such questions tried by the same jury--the appellant moved the court to be again allowed to question the several jurymen whether or not either of them had a fixed opinion as to the benefits or damages that would accrue to the appellant's property by reason of the change of grade. This motion being denied, it offered to show, by an examination of the several jurymen, that certain of them did have fixed opinions as to such benefits and damages, and that the opinions were such as would require evidence to remove. This offer to prove was refused, when it again demanded a separate jury, which demand the court again denied. These several rulings were each excepted to, and constitute the second, third, fourth, and fifth assignments of error. The seventh section of the act under which the court proceeded reads as follows: 'Upon the return of said summons, or as soon thereafter as the business of court will permit, the said court shall proceed to the hearing of such petition and shall impanel a jury to ascertain the just compensation to be paid to all of such owners and occupants aforesaid; but if any defendant or party in interest shall demand, and the court shall deem it proper, separate juries may be impaneled as to the compensation or damages to be paid to any one or more of such defendants or parties in interest.' Laws 1905, p. 87, c. 55. It is plain that under this section of the statute the question whether the court will grant to any single defendant a separate jury is one within its discretion, and, being so, its order will be reversed only when it is manifest that the discretion has been abused. The appellant, realizing this, contends that this discretion was abused, but we find nothing in the record which supports the contention. The evidence would have sustained a much larger verdict, it is true; but, since the trial court, who heard the evidence, as well as the jury, felt that the verdict was not disproportionate to the probable injury the change in the streets would inflict, we cannot find prejudice on the part of the jury from this fact alone. Moreover, the trial court had abundant opportunity, in the...