Oregon Ry. & Nav. Co. v. Owsley

• Decision Date: 19 January 1887
• Citation: 13 P. 186,3 Wash.Terr. 38
• Court: Washington Supreme Court
• Parties: OREGON RY. & NAV. CO. v. OWSLEY.

13 P. 186

3 Wash.Terr. 38

OREGON RY. & NAV. CO. v. OWSLEY.

Supreme Court of Territory of Washington

January 19, 1887

Allen & Crowley and Mallory &amp Gose, for appellant.

Andrews, Brents & Clark, for appellee.

GREENE, C.J.

A proceeding was instituted under the Code by appellant, the railway company, for the appropriation and condemnation of a strip of land 100 feet in width, across the premises of appellee, upon which to construct and operate its railway. In the proceeding an award of damages was had, to which objections were filed pursuant to statute. Thereupon, as provided by statute, the cause was placed on the trial docket of the district court, and issues were formed between the appellee, as plaintiff, and appellant, as defendant, by the filing of the ordinary pleadings in a civil action.

In the complaint was alleged the incorporation of the railway company, its authority to construct and maintain a railroad extending across certain described land owned by the plaintiff, the appropriation by the defendant of a strip thereof 100 feet in width, and damages in the sum of $4,000.

The answer admitted the appropriation; denied damages; and, for affirmative defense, alleged that, while engaged in locating its road across plaintiff's premises and after it had selected, surveyed, and staked out a route for its railroad over the same, the plaintiff designated another line over his premises, and requested defendant to adopt the new line in lieu of that first selected, and agreed with defendant that if it would do so no damages would be claimed by reason of the location and construction of the railroad across the land. The answer further affirmatively alleged that defendant, relying upon plaintiff's promise in that behalf, and induced thereby, changed its original location, and, at considerable expense, built its road as desired by plaintiff. All of this affirmative matter was denied by plaintiff in reply.

The issues thus made up were tried by a jury, who brought in a verdict for plaintiff in the sum of $1,000 damages. Judgment was rendered upon the verdict, and from the judgment this appeal is prosecuted.

In course of the trial it appeared in evidence for plaintiff that certain irrigating ditches, crossing the right of way were interfered with and obstructed by the construction of the railroad. There was also evidence tending to show that at the time of commencement of the appropriation proceeding, the construction was not complete. Thereupon the defendant offered to prove by testimony of its constructive engineer, that, according to the plans for construction, the irrigating ditches were to be placed by the company in the same condition as before construction, and were to be maintained in that condition afterwards by the defendant at its own expense. Defendant also offered to show, by the same witness, what would be the expense of replacing the ditches interfered with, and of putting them again in the same condition as they were before the beginning of the construction, and that he was instructed by defendant during and as part of the construction to replace the ditches at defendant's cost, and put them in the same condition as found. All these offers were overruled by the trial judge, and exceptions to his rulings were duly taken and allowed.

Whether these rulings were correct is the first question in the case. The decision of it seems to us to depend upon what interpretation-in the light of the varied modes and devices whereby, under our civilization, lands may be made available or raised in value, for agricultural and other purposes, and subject to the constitutional inhibition that no private property shall be taken for public use without just compensation-is to be given to the provisions of sections 2473 and 2474 of our Code respecting damages to be assessed upon the appropriation of land for right of way. These sections, or as much of them as is necessary to consider, and with the expressions particularly in question marked by italics, are as follows:

"Sec. 2473. Whenever any corporation, authorized to appropriate lands for the right of way, is unable to agree with the owner thereof as to the compensation to be paid therefor, either such corporation, or the owner of such land, may, by petition in which the land sought to be appropriated shall be described with reasonable certainty, apply to a justice of the peace in and for the county where said land lies, who shall thereupon summon three disinterested householders, *** and the householders so summoned, after being sworn faithfully and impartially to examine the ground which shall be pointed out to them by such corporation or person, or both, and described in the petition, shall assess the damages which they believe the owner or owners will sustain over and above the additional value which the owners of adjoining land will derive from the construction of such road, canal, or other work. ***.

"Sec. 2474. Upon the payment to such justice for the use of the owners or to the owners of such lands, of the damages assessed by said householders, or a majority thereof, said corporation shall have the right to appropriate the land in question to its own use for corporate purposes, subject to the action of the district court in regard to damages as hereinafter provided: provided, that nothing herein contained shall be construed to prevent such corporation from going upon such lands for the purpose of preliminary surveys and explorations, and laying out the road or work."

It is not necessary for us to decide whether this language imports that the corporation is to acquire the fee or a mere easement. In either case, the appropriation is conditioned for a particular use, and for the construction of a specific work. It is a common-sense view, and is manifestly contemplated by the legislature, that the owner whose land is taken will sustain a different kind and amount of damage from a work of one sort...