Oregon R. & Nav. Co. v. Taffe
| Citation | 134 P. 1024,67 Or. 102 |
| Court | Oregon Supreme Court |
| Decision Date | 09 September 1913 |
| Parties | OREGON R. & NAV. CO. v. TAFFE et al. |
Department 2.
Appeal from Circuit Court, Wasco County; W.L. Bradshaw, Judge.
Action by the Oregon Railroad & Navigation Company against I.H Taffe and others to condemn a right of way. From a judgment dismissing the action, the plaintiff appeals. Reversed and remanded.
This is an action brought under chapter 1, title 45, L.O.L. (sections 6857-6871), to condemn a right of way adjacent to the line of plaintiff's railroad for the purpose of straightening its track at a point near Celilo, about 15 miles east of The Dalles, alleging the value of the property sought to be condemned at $750. The answer admits the allegations of the complaint, except as to the value of the property to be taken and the damage resulting therefrom, and an issue is tendered thereon, alleging the value of the property to be $25,000 and the damage that will result to other property from the condemnation at $25,000, and asking that the compensation be allowed at $50,000. The trial resulted in a verdict in favor of the defendants, and assessing the compensation at the sum of $11,000. The plaintiff desiring to appeal from the assessment of damages, a controversy arose as to the form of judgment to be entered, and plaintiff tendered to the court a form of judgment, the particular part thereof about which the controversy centers providing: "It is therefore considered, ordered, and adjudged that on the payment of the said sum of $11,000, with interest thereon from June 25 1910, and the costs and disbursements of the defendants the following described real property be appropriated and condemned to the use of the plaintiff." Defendant objected to such a form being entered, contending that no judgment can be rendered until the payment into court of the compensation assessed by the jury, under section 6866 L.O.L.; plaintiff contending that such payment would bar the right of appeal which is given by section 6867, L.O.L. The court refused to render the judgment requested by plaintiff or any judgment, until the payment of the money into court and as, without the entry of some final judgment, no appeal would lie under section 548, L.O.L., and the plaintiff desiring to review upon appeal the proceedings had at the trial, it procured a writ of mandamus to issue from this court, requiring the judge of the trial court to show cause why the same had not been entered. Upon demurrer to the return this court declined to decide in that proceeding what form of judgment should be rendered, but sustained the demurrer to the return, indicating that it was the duty of the circuit court to enter some final judgment in the action. State ex rel. v. Bradshaw, 59 Or. 279, 117 P. 284. Thereupon the circuit court denied plaintiff's motion to enter the judgment requested, and dismissed the action because the money had not been paid into court. The plaintiff appeals.
The bill of exceptions brings up many assignments of error occurring at the trial as well as the alleged error of the court in dismissing the action and in refusing to enter the form of judgment requested by defendant. The first question raised involves section 18, article 1, of the Constitution, which provides: "Private property shall not be taken for public use, *** without just compensation; nor except in case of the state, without such compensation first assessed and tendered." Also section 4 of article 11 of the Constitution, which provides: "No person's property shall be taken by any corporation, under authority of law without compensation being first made or secured in such manner as may be prescribed by law." The condemnation statute by section 6866, provides: "Upon the payment into court of the damages assessed by the jury, the court shall give judgment appropriating the lands, property rights, easements, crossing, or other connection in question, as the case may be, to the corporation, and thereafter the same shall be the property of such corporation." Section 6860 provides: "Such action shall be commenced and proceeded in to final determination in the same manner as an action at law, except as in this title otherwise specially provided." Section 6865 provides: "Upon the motion of either party, before the formation of the jury, the court, upon the request of either party, shall order a view of the lands or premises in question, and upon the return of the jury the evidence of the parties may be heard and the verdict of the jury given." Section 6867 provides: "Either party to the action may appeal from judgment therein, in like manner and like effect as in ordinary cases; but such appeal shall not stay the proceedings so as to prevent such corporation from taking such lands into possession, and using them for the purposes of the corporation, or from proceeding to exercise the right, enjoy the easement, or make the crossing or connection condemned."
B.F. Riter, Jr., of Portland (W.W. Cotton, A.C. Spencer, and C.E. Cochran, all of Portland, on the brief), for appellant.
L.K. Adams, of Portland (Bennett & Sinnott, of The Dalles, and Jeffrey & Lenon, of Portland, on the brief), for respondent.
EAKIN, J. (after stating the facts as above).
If the judgment entered by the court was the proper one, then this appeal is vain as to the alleged errors occurring at the trial. We are therefore considering first the alleged error in rendering the judgment of dismissal. The question involved has been incidentally touched upon in former opinions of this court, but not directly decided. The real controversy is as to what judgment may be entered in plaintiff's favor from which it may appeal. Upon this matter we get but little aid from the decisions of other states, for the reason that there is very little similarity between their statutes on the subject involved and ours. In Kansas, on an assessment of damages by a commission or by a jury, the court simply awards or adjudicates the damages so found as the amount which the plaintiff must pay before it is entitled to appropriate the property. St. Louis, Lawrence & Denver R. Co. v. Wilder, 17 Kan. 239; F.E.D. & W.R. Co. v. Lilley, 3 Kan.App. 588, 43 P. 857. And in Illinois the same procedure is followed. City of Bloomington v. Miller, 84 Ill. 621; Lewis on Eminent Domain (3d Ed.) § 955. In the Colorado statute, after verdict, the judgment contemplated is: The court shall proceed to adjudge and make such order as to right and justice shall pertain, ordering that the plaintiff may enter upon such property and the use of the same upon payment of the full compensation as ascertained, which is considered a final determination, and from which either party may appeal as in ordinary cases; it being recognized in all of the cases that no formal judgment of condemnation can be rendered until the money is paid. Denver & N.O.R.R. Co. v. Jackson, 6 Colo. 340. Our own statute emphasizes that condition by section 6866, supra. Oregonian Railway Co. v. Hill, 9 Or. 377; Webb v. Nickerson, 11 Or. 382, 4 P. 1126. Section 6860 makes the proceedings in ordinary actions at law applicable in this proceeding, except as otherwise specially provided, thus supplementing this special statute in matters of procedure not covered. There may be other issues involved in a condemnation action than as to the amount of the compensation, such as the qualification and status of the petitioner to exercise the power of eminent domain, the liability of the particular property to be condemned, and the necessity for the taking, as provided in sections 6859 and 6864, L.O.L. These may all, or any of them, be made issues by the answer, be tried together, and be concluded by the verdict assessing the compensation. Webb v. Nickerson, supra. And a proper appeal would, no doubt, bring up all of these questions for review in this court, if included in the verdict. We see by section 6859 that, on the report of the commissioners appointed to determine the point and manner of a railroad crossing there provided for, their action must be confirmed by the court; that is, the commissioners cannot adjudicate the matters contained in their report. Their action must be confirmed by the action of the court. The same is true of the verdict of the jury. They can assess the amount of the compensation, but they cannot adjudicate it. It is binding on no one until adopted or confirmed by the court. The amount of compensation which plaintiff would be required to pay before he could take the property must be adjudicated as the amount defendant is entitled to.
Condemnation is an adversary proceeding and not an arbitration, and all proceedings must be judicial. Without the application of the provisions of titles 1 and 2, L.O.L., as provided for in section 6860, supra, the whole condemnation statute would be very incomplete. Especially would there appear to be quite an omission in the proceedings between sections 6865 and 6866. The verdict shall not only "be given," but we must assume it shall be returned in a formal way into court and be confirmed or adjudicated as the award by the court of the amount of damages to be paid to the defendant by the plaintiff before he can take the property. Such an order or adjudication is contemplated in actions at law. Although in this proceeding the statute provides especially for the judgment of condemnation, such an adjudication of the award seems to be necessary to make it an orderly judicial proceeding, and as a protection to plaintiff, as the authority upon which the amount is to be paid by it, as evidence of what is condemned or included in the verdict, and by which the defendant shall be bound. The statutes of other states are different from ours as to these proceedings, yet the courts seem to consider such...
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