Lincoln County v. Brock

• Decision Date: 06 February 1905
• Citation: 79 P. 477,37 Wash. 14
• Parties: LINCOLN COUNTY v. BROCK.
• Court: Washington Supreme Court

79 P. 477

37 Wash. 14

LINCOLN COUNTY v. BROCK.

Supreme Court of Washington

February 6, 1905

Appeal from Superior Court, Lincoln County; C. H. Neal, Judge.

Proceedings by Lincoln county to condemn certain real estate of Jackson Brock for a public road. From a judgment of condemnation Brock appeals. Affirmed.

Myers &amp Warren, for appellant.

R. M Dye, for respondent.

CROW J.

This action was brought by Lincoln county for the purpose of condemning certain real estate for a public road. The jury assessed appellant's damages at $202.25, the exact amount which theretofore had been tendered by the county and refused by appellant. Judgment of condemnation was made and entered, and this appeal is taken therefrom.

Appellant's first assignment of error is that the court erred in giving the following instruction to the jury: 'In estimating defendant's damages, you may take into consideration the difference, if any, between the value of the defendant's land after the highway is appropriated and built, as compared with its value before; and, if the jury finds that defendant's land will be actually benefited by the construction of said proposed highway, you should offset such benefit against any damages which you may find.' Appellant's main contention for a reversal is based on the above instruction, he claiming that no benefits accruing to appellant's land on account of the proposed establishment of the highway should be offset against any damages the jury might find. Section 16, art. 1, of our state Constitution, provides: 'No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, and no right-of-way shall be appropriated for the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases in courts of record, in the manner prescribed by law.' Appellant practically concedes that under the holdings of this court in Lewis v. Seattle, 5 Wash. 741, 32 P. 794, and Kaufman v. Tacoma, etc. R. Co., 11 Wash. 632, 40 P. 137, the instruction of the trial court was not erroneous, if a county in this state is a municipal corporation, in contemplation of said section 16, art. 1, of the Constitution. Appellant contends, however, that a county is not such a municipal corporation. We do not think this contention can be sustained. We construe the words 'any corporation other than municipal,' in said section, as referring to private corporations only, and, as distinguished therefrom, excluding all public or political corporations. That the words 'municipal corporations,' in this state, frequently include counties, clearly appears from other sections of the Constitution. In section 2, art. 7, we find the words 'state, counties, school districts, and other municipal corporations'; in section 6, art. 8, the words 'no county, city, town school district, or other municipal corporation'; in section 7, same article, the words 'no county, city, town, or other municipal corporation'; in section 12, art. 11, the words 'counties, cities, towns, or other municipal corporations'; and in section 15, same article, the words 'any county, city, town, or other public or municipal corporation.' This court, in Board of Directors v. Peterson, 4 Wash. 147, 151, 29 P. 995, in commenting on the words 'no county, city, town school district, or other municipal corporation,' found in section 6, art. 8, of the Constitution, said: 'We are forced to the conclusion...