Seattle & M.R. Co. v. Roeder

• Decision Date: 24 October 1902
• Citation: 30 Wash. 244,70 P. 498
• Court: Washington Supreme Court
• Parties: SEATTLE & M. R. CO. v. ROEDER et al.

70 P. 498

30 Wash. 244

SEATTLE & M. R. CO. v. ROEDER et al.

Supreme Court of Washington

October 24, 1902

Appeal from superior court, Whatcom county; Jeremiah Neterer, Judge.

Petition by the Seattle & Montana Railroad Company against Henry Roeder and others to condemn land for a railroad right of way. From a judgment in favor of defendants, assessing the value of the land sought to be condemned, petitioner appeals. Affirmed.

Will H Thompson and Kerr & McCord, for appellant.

Fairchild & Bruce and Newman & Howard, for respondents.

MOUNT J.

On July 23, 1901, the appellant filed its petition in the court below praying for the condemnation of a right of way over the lands of respondents. On October 21st of the same year, all the parties having appeared in the cause, the court made and entered an order adjudging that the use was a public use, and that there was a necessity therefor, and ordered a jury to determine the compensation to be paid to the respondents for the lands appropriated, and for the damages occasioned by reason of the appropriation. A jury was thereupon impaneled and the cause proceeded to trial. On November 1st the jury returned a verdict in favor of the respondents Henry Roeder, Victor E. Roeder and wife, and Lottie T. Roth, for $72,000, and in favor of C. I. Roth, a lessee of the property, in the sum of $8,000. Judgment was entered upon the verdict, and from this judgment appeal is prosecuted.

The lands in controversy consist of tide lands and uplands upon which a sandstone quarry, known as the 'Chuckanut Quarry,' is located. The stone quarry lies on the face of a cliff ranging from 75 to 200 feet in height, and extending for a distance of about 6,000 feet north and south. This cliff faces on Chuckanut Bay, an arm of Puget Sound, and the base of the cliff lies along the water front, against which the tide ebbs and flows. The tide lands lie between the face of the cliff and deep water. The ledge of stone known as the 'Chuckanut Quarry' lies exposed against the face of this cliff at an angle of about 60 degrees. The right of way sought to be condemned lies near the base of this cliff at the north end, and extends along the same, and across respondents' property. About midway of the quarry the right of way enters upon the quarry, and from that point south appropriates the whole of the ledge. The right of way is 80 feet in width in front of and along the quarry, and at other places is 100 feet in width, and lies between shipping and the quarry. The saw mills, shops, power house, and other buildings used in connection with the quarry are in the right of way, and the construction of the road necessitates their removal. The petition and decree reserved to respondents an easement across appellant's right of way for carrying stone to a dock for shipment, and a location for mills and shops and derricks, and also agrees to carry whatever fresh water flows from the uplands across the right of way. The respondent C. I. Roth had a five-year lease of the quarry property, and was in active operation thereof.

Appellant makes 44 assignments of error in its brief. The first nine assignments are based upon rulings of the court in permitting cross-examination of appellant's witnesses upon the profits of quarrying the stone, upon the specific buildings in which the stone has been used, upon the current price of stone from the quarry, upon the possible use of tide lands, upon the cost of fills and the effect of cutting off certain streams of water upon the uplands from the tide lands, upon the amount of stone in the 'big blast' and the cost of quarrying the stone elsewhere, upon the value of certain kinds of stone in the quarry fixed with reference to the lease of defendant C. I. Roth, and upon the effect of cutting off the quarry from navigable water. Whether the cross-examination upon these points was admissible or not depends largely upon the range taken in the direct examination. To a clear understanding of the questions presented it would be necessary to set out a large part of the examination, both direct and cross, which we do not deem necessary, because definite rules for cross-examination cannot be applied in all cases, and each case must necessarily depend largely upon its own peculiar features. The trial judge has a large discretion in allowing cross-examination of witnesses where market value is involved, and where expert witnesses are resorted to to establish such value. We shall not, therefore, burden this opinion by setting out the evidence upon which these questions arose. It is sufficient to say that the witnesses in giving evidence upon direct examination were asked to fix, and did fix, the value of the property condemned, and the damage which, in their opinion, the defendants would suffer by reason of the construction of the appellant's line of railroad. The questions to which exceptions were taken arose generally when, upon cross-examination, the witness was asked concerning the method by which he had arrived at his conclusion as to the damage, what elements of damage he had considered, and his reasons for his opinion. No doubt great latitude was given in both the direct and cross examination of all the witnesses, but great latitude should be allowed in cases of this character, because the objects of such cross-examination are principally to determine the credibility of the witness, and whether or not the element of damages which he has considered is proper or improper to be considered, and whether he has taken into consideration all the elements of value in arriving at a conclusion. We have gone through the entire evidence, and are satisfied that no reversible error as to these particular questions has occurred.

Errors assigned numbered 10, 14, 15, and 19, are that respondents' witnesses were permitted to place values upon the property in the segregate; that is, upon the stone in the south half of the quarry and upon the stone in the north half thereof, and upon the value of the upland and upon the value of the tide land. The question presented here will be discussed more fully under the instructions further on in this opinion. We think this was not error. Where different classes of property are taken, it seems that witnesses ought to be allowed to fix a value upon each different class. At any rate, this was the course pursued by the appellant. It was permitted, when making out its case, to introduce evidence as to the value of these several classes of property, and for that reason alone respondents should be permitted to meet the evidence in the same way. Water Co. v. Huson, 13 Wash. 124, 42 P. 536.

Errors 11 and 12 relate to motions to strike out certain evidence of the witness Black, going to the value of the property, and how the same should be worked, because he did not qualify himself to testify. Mr. Black testified that he knew the lands in controversy; had lived in the vicinity thereof for 13 years; had large real estate holdings; was in the real estate business, and had sold $200,000 worth in the last two years; had examined the property with reference to purchasing the same; and owned and operated stone quarries, and that he knew the market value of the property. The evidence relating to the manner of working the property went to the damage caused the portion of the quarry not taken because of the proximity of the road to the workings. We think from this examination he was qualified to testify as to the value and to the method of operating the property, and that both motions were properly denied. Railway Co. v. Warren, 137 U.S. 348, 11 S.Ct. 96, 34 L.Ed. 681; Railroad Co. v. Blake, 116 Ill. 163, 4 N.E. 488; City of Santa Ana v. Harlin, 99 Cal. 538, 34 P. 224.

The errors complained of numbered 13, 16, 17, 18, 20, 21, 22, and 24 relate to the dangers to the railroad from the operation of the portion of the quarry not taken, to the present market value of the stone, the effect of powder in blasting, the probable future demand for the stone, the manner in which the quarry should be worked to the best advantage, and how much less valuable the quarry left would be after the road was constructed. These objections were made by the appellant to the introduction of evidence by the respondents. There were two classes of property taken: (1) Tide lands, and (2) the uplands, on which were located the sandstone quarry. The principal value of the uplands consisted in the stone quarry. The line of road ran in a north and south direction nearly parallel to the ledge of the quarry, so that from about the middle of the ledge the southern portion of the ledge was entirely within the right of way, and the north portion thereof was very near the base of the ledge. The location of the road upon a part of the quarry of course confiscated that portion. It is not difficult to understand that the value of the stone on the land and its accessibility constituted the chief value of the land taken. This value depended largely upon the market value of the stone in the quarry. As to the part not taken the damage would depend largely, if not wholly, upon the extent to which the location of the road would affect its accessibility. If the location of the road was so near the quarry as to injuriously affect the operation thereof so that the stone might not be taken, out as cheaply as with the road not there, this would be an element of damage to be considered. For this reason the court--properly, we think--permitted evidence on the part of the respondents to show that blasting could not be done without great care and increased expense, by reason of the proximity of the road, and that blasting was the most advantageous way to operate this quarry.

The twenty-third assignment of error is that the court erred in admitting in...