State ex rel. Davis v. Superior Court, Cowlitz County

• Decision Date: 30 September 1914
• Docket Number: 12344.
• Citation: 143 P. 168,82 Wash. 31
• Parties: STATE ex rel. DAVIS v. SUPERIOR COURT, COWLITZ COUNTY, et al.
• Court: Washington Supreme Court

143 P. 168

82 Wash. 31

STATE ex rel. DAVIS v. SUPERIOR COURT, COWLITZ COUNTY, et al.

No. 12344.

Supreme Court of Washington

September 30, 1914

Department 1. Certiorari by the State, on relation of A. J. Davis against the Superior Court of Cowlitz County and others. Writ granted.

Hayden Langhorne & Metzger, of Tacoma, for relator.

Magill McKenney & Brush, of Kelso, for respondents.

GOSE, J.

This is an application for a writ of certiorari to review a judgment non obstante veredicto. The action is an original proceeding by diking district No. 2 of Cowlitz county to appropriate certain property, and to assess the damages and benefits resulting from the diking and improvement.

The court found that the improvement was practicable and conducive to the public health, welfare, and convenience that it will increase the value of the lands within the district for the purpose of public revenue; that the property sought to be appropriated was required and necessary for the establishment of the improvement; and that the appropriation was for a public use. Upon such findings the court directed the summoning of a jury to assess the damages and benefits resulting from the improvement.

The relator thereupon answered, alleging that his property would be damaged by the construction of the proposed diking system in a sum certain. The jury assessed his damages at $5,000. Upon motion of the petitioners a judgment non obstante veredicto was entered denying damages to the relator and fixing the assessment of the benefits to his land.

The proceeding was initiated by the filing of a petition by the diking district, through its board of diking commissioners, in pursuance of the provisions of Rem. & Bal. Code, § 4091 et seq.

Rem. & Bal. Code, vol. 2, § 4107, contains the following provision relating to an appeal:

'Every person or corporation feeling himself or itself aggrieved by any judgment for damages or any assessment of benefits provided in this chapter, may appeal to the Supreme Court of the state within thirty days after the entry of the judgment, and such appeal shall bring before the Supreme Court the propriety and justness of the amount of damage or assessment of benefit in respect to the parties to the appeal.'

This section was amended by Laws of 1913, p. 267; volume 3, Rem. & Bal. Code,§ 4107. Both the old section and the amendatory section make provision for a supplemental proceeding for the purpose of subjecting new lands to assessment, and the amendatory act provides for equalizing the assessment originally made. Neither section has any application to an original assessment, except that section 4107, prior to its amendment, provided for an appeal, as shown in the excerpt from that section. The section, as amended, contains the following provision relating to appeals:

'Upon the return of the verdict of the jury, the court shall enter its judgment in accordance therewith, as supplemental to the original decree, or in case a petition in intervention be filed by the diking commissioners of some other district than that instituting the proceeding, such judgment to be supplemental to all such original decrees, and thereafter, all assessments and levies for the future maintenance of any dike or dikes described in said judgment shall be based upon the respective benefits determined and assessed against the respective tracts of land as specified in said judgment. Every person or corporation feeling himself or itself aggrieved by any such judgment may appeal to the Supreme Court within thirty days after the entry thereof, and such appeal shall bring before the Supreme Court the propriety and justness of the verdicts of the jury in respect to the parties to the appeal.'

We have italicized portions of both sections for the purpose of simplifying the discussion.

A comparison of these provisions will disclose that section 4107, prior to its amendment, authorized an appeal from any judgment for damages or any assessment of benefits 'provided in this...