Laramie Valley Railway Company v. Gradert

• Citation: 3 P.2d 88,43 Wyo. 268
• Decision Date: 21 September 1931
• Docket Number: 1685
• Parties: LARAMIE VALLEY RAILWAY COMPANY v. GUSTAV GRADERT, ET AL
• Court: United States State Supreme Court of Wyoming

3 P.2d 88

43 Wyo. 268

LARAMIE VALLEY RAILWAY COMPANY v. GUSTAV GRADERT, ET AL

No. 1685

Supreme Court of Wyoming

September 21, 1931

ERROR to the District Court, Laramie County; SAM M. THOMPSON Judge.

Proceedings in condemnation by Laramie Valley Railway Co., a corporation against Gustav Gradert, trustee, and others. From orders and rulings of the trial court, affecting the amount of compensation in damages awarded by commissioners, plaintiff brings error.

Modified and Affirmed.

For the plaintiff in error there was a brief by Corthell, McCollough & Corthell, of Laramie, Wyoming, and an oral argument by Mr N.E. Corthell.

The court erred in striking out a material part of the commissioner's award under which plaintiff was authorized to mitigate damages in the reconstruction of defendants' irrigation system. The remaining errors are chiefly of an accessory and contributory nature. The award followed the provisions of the statute. 20 C. J. 959, 2 Lewis' Eminent Domain 591. The practical effect of striking a portion of the award was to deny plaintiff the right to complete its construction according to its plan, and to place the compensation on the basis of a potential, rather than an actual injury. The only case cited by defendants' counsel in support of his motion to strike was Richmond, etc Ry. Co. v. Chamblin, (Va.) 41 S.E. 750, and the sequel thereto found in Seaboard Air Line Ry. v. Chamblin, (Va.) 60 S.E. 727, which are not in point. A condemnor is entitled to follow plans as presented. Jacksonville & S. R. R. Co. v. Kidder, 21 Ill. 131; Peoria & Pekin N. Ry. Co. v. Peoria & Farmington Ry. Co., 105 Ill. 110; C. & N.W. Ry. Co. v. C. & E. Ry. Co., 112 Ill. 589; St. Louis & C. R. Co. v. Postal Tel. Co., 173 Ill. 508; Kansas City & E. R. Co. v. Kregelo, 32 Kansas 608, 5 P. 15; Turner v. Louisville N. R. Co., (Ky.) 225 S.W. 1072; Tyler v. Town of Hudson, (Mass.) 18 N.E. 582; St. Louis, etc., Ry. Co. v. Clark, (Mo.) 25 S.W. 192; Packard v. Bergen Neck Ry. Co., (N. J.) 25 A. 506; Adirondack etc. Corp. v. Evans, 235 N.Y.S. 569; McGregor v. Gas Co., (Pa.) 21 A. 13; Gulf Coast Co. v. Gary, (Tex.) 14 S.W. (2nd) 266; Oregon Ry. Co. v. Owsley, (Wash.) 13 P. 186; State v. Superior Court, (Wash.) 90 P. 663; Tacoma R. Co. v. Smithgall, (Wash.) 108 P. 1091; Manitowoc Co. v. Ry. Co., (Wis.) 115 N.W. 390; Public Service Co. v. Loveland, (Colo.) 245 P. 493. The trial court has discretion to make such order as right and justice may require (4913 C. S.) to describe the property, the award, and mode of making it (4920 C. S.). A positive duty is imposed upon an injured party to diminish the damage he sustains from the wrongful act or omission of another. Hawkins v. Stoffers, 40 Wyo. 226; Bader v. Mills, 28 Wyo. 191; Craig v. Higgins, 31 Wyo. 166; Warren v. Stoddart, 105 U.S. 224. The court erred in receiving in evidence three unsworn statements tendered by defendant (5827 C. S.). They would not be admissible, even if sworn to, for purposes of impeaching their own verdict. Bunce v. McMahon, 6 Wyo. 24; Pullman Co. v. Findley, 20 Wyo. 456; Gustavenson v. State, 10 Wyo. 320. Statements of a judge made orally in discussing the evidence are not admissible. Sewall v. McGovern, 29 Wyo. 62; Stevens v. Laub, 38 Wyo. 182. The matter contained in these statements was prejudicial. Smith v. Shoemaker, 17 Wall. 630; Gilmer v. Higley, 110 U.S. 47. The court erred in denying plaintiff's application to regulate procedure and clarify the issues in view of the obscure and confused condition of the case, caused by the filing of numerous papers. The court erred in awarding defendants judgment in the sum of Nine Thousand Dollars ($ 9,000.00), with interest and costs. (4913, 4917 and 4920 C. S.). The statute contemplates some order with regard to payment of compensation, but not an unconditional money judgment. St. Louis Co. v. Wilder, 17 Kan. 239; McCall v. Merrian County, (Ore.) 75 P. 140; Mobile R. Co. v. Hester, (Ala.) 25 So. 220. The court erred in allowing interest on the full amount of the award from September 29, 1928, the date when it was filed, in view of the obstacles interposed by defendants, the delay principally being their demand for a jury trial. Wyoming Ry. Co. v. Leiter, 25 Wyo. 286. In that case interest was allowed on the theory that the payment was unreasonably delayed, but this applies to delay on the part of the party obligated to pay. Where the delay is occasioned by the party to whom payment is to be made, such delay is a recognized ground for withholding interest from the one causing the delay. Williams v. Smith, 2 Cai. (N. Y.) 253; Bull v. Ketchum, 2 Den. 188. Interest in the absence of a contract obligation is a creature of statute (33 C. J. 187); Wyoming Central Irr. Co. v. LaPorte, 26 Wyo. 522. The court erred in denying plaintiff's motion for a new trial and plaintiff's motion for a re-taxation of costs, particularly the compensation of commissioners. The court order with reference to compensation of commissioners was made without jurisdiction, without due process, and the allowance was unauthorized and excessive except the per diem allowances. (4933, 5917-5921 C. S.) 15 C. J. 19. One who is a stranger to the action, such as a witness (40 Cyc. 2191); a master (Fiedeldey v. Diserens, 26 O. S. 312), a receiver (Walton v. Williams, (Okla.) 49 P. 1022), or a sheriff (Fletcher v. Morrell, (Mich.) 44 N.W. 133), has no standing to seek relief in the action against the parties, his remedy being by an independent proceeding with pleadings, process and other incidents to the enforcement of civil rights, and the administration of justice. Beeman Co. v. Sorenson, 15 Wyo. 450. The statute allows commissioners $ 5.00 per day (4933 C. S.). This is the only authority for the amounts of commissioner's compensation. The question of costs is purely statutory. Wyoming Central Irr. Co. v. LaPorte, supra. Particular expenses are only taxable when authorized by statute. Lewis v. England, 14 Wyo. 540, and are strictly construed. (15 C. J. 24, 20 C. J. 1143, 1041).

For the defendants in error there was a brief and oral argument by C. P. Arnold, of Laramie, Wyoming.

The action was brought under Chapter 31, C. S., to condemn a right-of-way for a railroad; there is but one question presented by the record, viz: Did the court err in confirming the award returned by the Commissioners in condemnation, with a particular reference to a clause in the Commissioners' Certificate, in substance reducing the award Twenty-five Hundred Dollars ($ 2,500.00), if the railroad company should construct a certain ditch, on or over its right-of-way to restore the irrigation system of a ranch, from which the right-of-way was taken. This clause was stricken out by the trial court and an exception taken by plaintiff forms the basis of the error proceedings before this court.

The matter has been pending for several years and no ditch has been dug by plaintiff. The trial court confirmed the monetary award in the sum of Nine Thousand Dollars ($ 9,000.00). The State Constitution prohibits the taking of private property without just compensation (Art. I, Section 33); just compensation in such case is an equivalent in money. Wyo Ry. Co. v. Leiter, 25 Wyo. 286; Edwards v. City of Cheyenne, 19 Wyo. 147. Damages are payable absolutely. Land Co. v. Hoffman, 30 Wyo. 238; Meyers v. Colo. Coal Co., 39 Wyo. 355; Morrison v. Land Co., 38 Wyo. 190; Wallace v. R. R. Co., 27 Wyo. 31. The foregoing authorities seem to be controlling and we are unable to perceive wherein the 45 pages of brief matter presented by plaintiff in error, with a multitude of citations from other jurisdictions, can serve to disturb a principle well settled by our own decisions. We have examined all of the authorities cited by plaintiff in error and fail to see wherein they apply to the facts in the case at bar, where plaintiff has taken and retained absolute title in fee simple. Meyer v. Colo. Coal Co., 39 Wyo. 353. Condemnation statutes are strictly construed (20 C. J. 877); Currier v. Marietta, etc. R. Co., 11 O. S. 228; Binney's Case, 2 Bland (Md.) 99. The engineer employed by plaintiff had no plans; no definite proposition was made for us to accept. It is erroneous to provide that the condemnor shall do certain things for the benefit of the owner in payment or reduction of damages. (20 C. J. Eminent Domain, 842); Toledo R. R. Co. v. Munson, (Mich.) 23 N.W. 455; R. R. Co. v. Holler, 7 O. S. 221. A plaintiff will not be permitted to take advantage of errors which he himself invited, or which were the natural consequences of his own neglect or misconduct. 4 C. S. 700-701. Commissioners in condemnation proceedings are not jurymen. They are agents of both parties appointed to reach a conclusion determining damages sustained by land owners. Brackett v. Commonwealth, 111 N.E. 1036; R. R. Corp. v. R. R. Corp., 14 Gray 253. Their award is subject to revision by the court. The word compensation imports that a wrong or injury has been inflicted and must be redressed in money. City of Rawlins v. Jungquist, 16 Wyo. 403. The letters complained of had nothing to do with the decision of the court on this award. The "heterogeneous collection of papers" complained of by plaintiff in error consist in the main of a mass of motions, etc., filed to force the defendant into a stipulation favorable to plaintiff. Defendant was entitled to a judgment. It had taken our land and should be required to pay for it. (4923, 4920 C. S.) Defendant was entitled to interest that accrued on the award; the delay was caused by plaintiff. Defendant in error is not concerned with any question involving the payment of the commissioners. Their fees are fixed by law. Officers of the court who leave their private business to take part in the administration of the law should not be...