State ex rel. Walton v. Superior Court for Snohomish County

• Decision Date: 12 August 1943
• Docket Number: 29103.
• Citation: 140 P.2d 554,18 Wn.2d 810
• Parties: STATE ex rel. WALTON et al. v. SUPERIOR COURT FOR SNOHOMISH COUNTY et al.
• Court: Washington Supreme Court

140 P.2d 554

18 Wn.2d 810

STATE ex rel. WALTON et al. v. SUPERIOR COURT FOR SNOHOMISH COUNTY et al.

No. 29103.

Supreme Court of Washington

August 12, 1943

Department 1.

Original certiorari proceeding by the State of Washington, on the relation of Peter Thomas Walton and Mary Jane Walton, his wife, whose true name is Nancy Jane Walton, and Wallace Falls Timber Company, a corporation, against the Superior Court for Snohomish County, Ralph E. Bell, Judge, and United States Plywood Corporation, a corporation, to review an order that property sought to be condemned in condemnation proceeding brought by United States Plywood Corporation was required and necessary for a logging road.

Order affirmed.

Frank L. Cooper and Thomas G. McCrea, both of Everett, for relators.

McMicken Rupp & Schweppe and Bernard Reiter, all of Seattle, for respondents.

JEFFERS Justice.

This action was instituted by United States Plywood Corporation, a corporation, against Wallace Falls Timber Company, a corporation, and Snohomish County, to condemn a private way of necessity for a logging road, under the provisions of Rem.Rev.Stat.Supp. § 936-1 et seq., over land, the record title to which stood in the name of Wallace Falls Timber Company, a domestic corporation. The purpose of the condemnation proceeding was to enable the petitioner to acquire an easement for a period of three years for the purpose of removing timber from the southeast quarter of section 30, township 27 north, range 10 E. W. M., which it is alleged the petitioner owned. Notice of the condemnation proceeding was served upon Clyde Walton, president of Wallace Falls Timber Company, in all respects in accordance with Rem.Rev.Stat. § 922.

The matter came on for hearing May 12, 1943, Before the court for the purpose of obtaining an order of necessity. At this time, Peter Thomas Walton and Nancy Jane Walton, his wife appeared and filed in the cause a motion supported by an affidavit, asking that they be made parties to the proceeding, for the reason that they were the owners of the land sought to be condemned. It was admitted that while the property sought to be acquired did in fact stand in the name of Wallace Falls Timber Company, that company had intended to convey the property to Peter Thomas Walton and wife, but that the deed whereby such conveyance was attempted to be made erroneously described the land as being in 'north range 9 E. W. M.,' whereas the tract was in north range 10 E. W. M. No objection was made to this motion, and it was by the court granted.

Peter Walton and wife then filed a motion asking that the hearing be continued to enable them to obtain evidence to properly present the matters here involved.

In view of the fact that the United States Plywood Corporation and Peter Walton and wife are the real parties in interest in both the original condemnation proceeding and this certiorari proceeding, we shall hereinafter refer to the former as respondent and to Walton and wife as relators.

The motion was contested, respondent objecting to any continuance, arguing that the timber which it desired to remove was vital to the war effort; that it had not been apprised that a continuance would be asked; that its witnesses were present in court or on the way; and that it was through no fault of respondent that the record did not show Peter Thomas Walton to be the owner of the land in question. Respondent further argued that in no event should a continuance be granted without the imposition of terms.

After considerable argument between court and counsel, the court announced that the matter would be continued to May 17th, upon the condition that in the event there was an order of necessity entered on that day, the parties immediately proceed to a determination of the damages to be paid by respondent. A further condition was imposed relative to immediate possession in case a jury demand was made.

Counsel for relators refused to accept the continuance on the terms imposed, and stated that they would go to trial. The hearing then proceeded, respondent calling some six witnesses, relators calling two witnesses besides Peter Walton himself. On May 21, 1943, the court made and entered its order adjudicating that the property sought to be condemned was required and necessary for the purpose for which the proceeding was brought.

Relators have filed in this court their application for a writ of certiorari, asking for a review of the order entered. Upon the filing of the application and supporting affidavit, this court issued an alternative writ directed to Judge Ralph C. Bell, requiring him to certify a transcript of the record and proceedings had by him in the matter, or appear and show cause why he should not do so. All of the records and proceedings have been sent to this court and are now Before us, and we shall proceed to determine the cause on the merits.

We shall refer to the assignments of error and the evidence material to a discussion thereof as we proceed with the opinion.

There is a great deal of testimony in the record relative to another route, referred to as the 'Usatilla road,' which it was contended Before the trial court was available to respondent. However, counsel for relators, in his oral argument, stated that relators were making no contention as to the right of respondent to bring this action, nor were they making any contention relative to such alternative route.

Error is assigned on the refusal of the trial court to grant relators a continuance. It is the settled law of this state that the granting of a continuance is a matter resting within the sound discretion of the trial court, and that the court's refusal to grant a continuance will not be reviewed except for abuse of that discretion. Nye v. Manley, 69 Wash. 631, 125 P. 1009, and cases therein cited. The foregoing rule has been consistently followed in this state. See State ex rel. Hamilton v. Standard Oil Co., 190 Wash. 496, 68 P.2d 1031.

The affidavit in support of the motion for a continuance was made by Peter Thomas Walton, the owner of the property sought to be condemned. It is stated in this affidavit that the action was not called to his attention until Friday, May 7th; that he was not informed of the details of the case until Monday, May 10th, when the matter was explained to him by his attorney, who, incidentally, had been the attorney for Wallace Falls Timber Company. The affidavit further states that affiant was unable to prepare his evidence to properly set forth his opposition to the petition in the short time available to him, as it involved considerable evidence regarding contour of the country, condition of the ground, and many other details.

Relators did not see fit to accept the continuance with the terms inposed by the trial court, but went to trial. In view of the fact that the trial court was willing to continue the case, with the imposition of terms which we do not think unreasonable, under the circumstances, and in view of the refusal of relators to accept the continuance with the terms imposed, and in view of other facts appearing in the record, we are not prepared to say that the trial court abused its discretion in refusing to grant a continuance without the imposition of terms. In any event, we are satisfied relators were not prejudiced by the action of the trial court, as it appears from the testimony of Peter Thomas Walton that he is a lumberman and logger, and had worked in the woods since 1921; that he granduated from the University of Washington, college of forestry, department of logging engineering, and had practiced his profession since that time. A topographical map of a portion of the area here in question was handed to Mr. Walton and identified as having been made by him in about 1932. The witness testified he was familiar with the location of the proposed road, and had been over it. He was then asked if he could draw in on the map substantially where the proposed road would run, and he answered, 'I think fairly close.' He then described the course of the proposed road, and further testified that he was very familiar with the territory. He also testified to the general contour of the land over which the proposed road would go, and the general character of the soil.

In addition to his own testimony, Mr. Walton produced at the hearing a surveyor and timber cruiser by the name of Sam Hayward, who was familiar with the general topography of the area involved, and who had gone over the proposed route, and one Bob Carroll, an experienced log buyer who was experienced in looking over logging chances and logging roads. In other words, the record does not indicate that relators were in any way unprepared to meet the issues presented at the hearing on May 12th.

It is next contended by relators that the petition for condemnation did not state a cause of action, in that the description of the land sought to be taken was not sufficiently definite.

Relators, apparently anticipating that respondent would object to this court considering the above question, for the reason that it had not been presented to or considered by the trial court, cite Rem.Rev.Stat. § 263, as authority for raising this question for the first time in this court. The cited section provides: 'If no objection [to the complaint] be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting always the objection that the court has no jurisdiction, or that the complaint does not state facts sufficient to constitute a cause of action, which objection can be made at any stage of the proceedings, either in the superior or supreme court.'

Respondent first contends that relators cannot object to the sufficiency of the petition, on the ground...