Seattle, P.A. & L.C. Ry. v. Land

• Decision Date: 13 August 1914
• Docket Number: 11760.
• Citation: 81 Wash. 206,142 P. 680
• Court: Washington Supreme Court
• Parties: SEATTLE, P. A. & L. C. RY. v. LAND et ux.

142 P. 680

81 Wash. 206

SEATTLE, P. A. & L. C. RY. v. LAND et ux.

No. 11760.

Supreme Court of Washington

August 13, 1914

Department 1. Appeal from Superior Court, Clallam County; J. M. Ralston Judge.

Condemnation proceedings by the Seattle, Port Angeles & Lake Crescent Railway against Paul Land and wife. From a judgment awarding defendants damages for the land taken, but awarding nothing for damage to land not taken, they appeal. Affirmed.

Lyter & Folsom, of Seattle, for appellants.

Corwin S. Shank and H. C. Belt, both of Seattle, for respondent.

ELLIS J.

This is an appeal by the landowners from an award in condemnation. To avoid confusion, the parties will be designated throughout the condemnees as appellants, and the condemner as respondent. The respondent sought to take a strip of land 100 feet wide, containing 2.79 acres for a railroad right of way through 40 acres of land in Clallam county, belonging to the appellants. The land was practically unimproved. Topographically, it is divided into two parts wholly unlike in character. Approximately the east half is low bottom land cut up by overflow channels of Morse's creek. The west half, or a little more, rises in an abrupt bluff, at an angle of 35 degree to 40 degrees, to a height of about 200 feet above the base of the bluff where the right of way sought runs. The easterly low part is of little value except for use in connection with the west part, which is chiefly valuable for its gravel deposits, estimated to be about 50 feet deep on the top of the bluff, and supposed to cover the entire west part of the 40, or about 25 acres. The right of way enters the 40-acre tract at a point 50 or 60 feet east of the base of the bluff, extends in a southerly direction, touching, and necessitating a cut in the base of the bluff for a distance of something over 200 feet, beginning at a point about 200 feet from the north line of the 40-acre tract. From the cut, the right of way runs near the base of the bluff to the south line of the tract, which it crosses at a point about 150 feet east of the base of the bluff.

A preliminary finding of the corporate character of the respondent that it sought the land for a public use, that the public interest required the prosecution of the enterprise, and directing that a jury be impaneled to determine the compensation, was regularly entered. On the trial of the issue of compensation and damages, a jury was waived, and the cause was tried to the court. The court awarded the appellants $250 as compensation for the land taken, but found no damages to the balance of the land by reason of the taking. The court incorporated in the judgment, with the consent of both parties, the following provisions:

'There is reserved to the respondents [appellants here] their heirs, executors, administrators, and assigns, perpetual easements, rights, and privileges: (a) To construct and maintain and use over said land chutes, sluice boxes and other necessary means of conveying sand and gravel from the hillside on the west side to the east side of the lands appropriated in this action; (b) to construct, maintain, and operate such bunkers upon the westerly thirty-six feet of the land appropriated in this action, as may by them be deemed needful in developing and working any sand and gravel pit or pits that may be developed and worked on land adjoining the west side of said land; (c) to construct, operate, and maintain under said land such underground water pipes as may, by the respondents, their heirs, executors, and assigns, be deemed needful in developing and working any such gravel pit aforesaid; provided, always, however, that the uses herein mentioned shall not interfere with the safety and practical operation of the petitioner's proposed line of railroad.'

1. The first objection raised by appellants is that there is no proof that the respondent is a corporation, or that it is authorized to condemn the land, or that it in good faith contemplates building a railroad, or that it has paid its last annual corporate license.

The proceedings for condemnation by public service corporations are clearly defined by statute and well settled in practice. Upon petition and notice, a hearing is first had upon the questions of public use and necessity. This hearing necessarily involves the corporate capacity and the right to maintain the proceedings on the part of the petitioner as a public service corporation, the purpose for which the land is sought, and its necessity for that purpose. Rem. & Bal. Code, § 925. These are questions for the court. From its decision thereon there is no appeal. Western American Co. v. St. Ann. Co., 22 Wash. 158, 60 P. 158. A review of these questions can only be obtained by certiorari. North Coast R. Co. v. Gentry, 58 Wash. 80, 107 P. 1059; Whatcom County v. Yellowkanim, 48 Wash. 90, 92 P. 892.

The only question reviewable on appeal is 'the propriety and justness of the amount of damages.' Rem. & Bal. Code, § 931. Fruitland Irrigation Co. v. Smith, 54 Wash. 185, 102 P. 1031; State ex rel. Port Townsend S. R. Co. v. Superior Court, 44 Wash. 554, 87 P. 814. Having taken no action to review the preliminary order of the trial court by certiorari, the appellants here are foreclosed by the preliminary order as to all of the objections above mentioned.

2. The appellants offered to prove by the appellant Paul Land a scheme or plan for the development commercially of the sand and gravel bank located to the west of the proposed railroad. It is claimed that the court should have admitted this evidence. The offer was as follows:

'We admit that there is no sand or gravel pit there now in operation, but offer to show by this witness that this is a sand and gravel bearing property, and that it contains sand and gravel of commercial quality; that it is a quarter of a mile, approximately, from tide water, and that Mr. Land has prepared and had, prior to this condemnation proceedings, a comprehensive scheme and plan for the development of this property; that he intended to construct a railroad at the foot of the hill out to tide water, and there erect bunkers and shipping facilities; and that he had arranged for a right of way through the adjoining property for that purpose.'

The court said:

'You may show the difference in value between the property as it now is and as it will be when this right of way has been taken and the railroad constructed by the petitioner. Mr. Land is an experienced sand and gravel man, and should know the difference between the value of the land as it now is and as it will be after the railroad is constructed, and he should be able to explain this difference. The court will permit you to show the difference in value, if any, by the taking of this strip, to the balance of the 40.'

Thereafter, the court permitted the appellant Land to testify as follows:

'I have computed the damage that will be sustained by the property not taken, by virtue of the construction of this proposed railroad, and estimate the damage at not less than $4,000. * * * Prior to the time this suit was commenced, I took steps looking to the development of this particular property. I estimate the damage at $4,000 by the extra expense that I would be to, also the amount of gravel that I perhaps never could reach. They cut into the bank here, and I could not get that out at all, except by crossing the railroad track, which would be a great big expense to me to develop that gravel property, to go across the track and put my bunkers on the east side of the track. It would be a big drawback all the way through. The proposed right of way goes so close to the foot of the hill that I would have no room for bunkers or switching facilities. I estimate it at about 2,500,000 yards.'

On cross-examination he said:

'Some of this land is located about 2,000 feet from tide water, some a little nearer. I would want to put two or three bunkers at the foot of the hill, maybe 100 feet from the foot of the hill. I planned to put my bunkers perhaps 200 feet north of my south line, somewhere near the shack. My gravel is located above the county road, and I would go under the road 10 or 12 feet to get it out. I have no figured what it would cost to tunnel under the county road, nor have I figured the kind of bunkers, but I made tentative plans, and estimated what they would cost. The receiving bunkers planned were 700 to 800 cubic yards capacity, and I figured on having two bunkers. I also figured trestling, and on getting the gravel to tide water by putting on a gas engine and running two cars out on a railroad. I figured it would be over a quarter of a mile from a point 300 or 400 feet north of my north line to tide water. I figured on putting in a railroad to start on the side

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