State v. Superior Court of Spokane County

• Decision Date: 29 September 1909
• Citation: 104 P. 148,55 Wash. 64
• Parties: STATE ex rel. MERRIAM et al. v. SUPERIOR COURT OF SPOKANE COUNTY; NORTH COAST RY. CO. v. MERRIAM et ux.
• Court: Washington Supreme Court

104 P. 148

55 Wash. 64

STATE ex rel. MERRIAM et al. v. SUPERIOR COURT OF SPOKANE COUNTY;

NORTH COAST RY. CO. v. MERRIAM et ux.

Supreme Court of Washington

September 29, 1909

Department 2. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Condemnation proceedings by the North Coast Railway Company against Rufus Merriam and wife. An order that the question of damages be tried to a jury having been rendered, respondents brought certiorari, and, a final decree of condemnation being subsequently rendered, they appealed therefrom. Affirmed.

Cullen & Dudley, for appellants.

Danson & Williams and Hamblen & Gilbert, for respondents.

MOUNT J.

These two actions grew out of a condemnation proceeding, and were presented here together by one brief. In September, 1908, the North Coast Railway Company filed a petition in the superior court of Spokane county, seeking to condemn for railway purposes two lots, the property of Rufus Merriam and wife, in the city of Spokane. In December, 1908, the petition came on to be heard upon the preliminary question of the public use and the necessity for taking the property. The court, after a hearing, found that the contemplated use for which the property was sought was really a public use, and that the property was required and necessary for the purpose of the railway, and thereupon ordered the question of damages to be tried to a jury. This question was tried to a jury on January 13, 1909, and the value of the property taken was assessed at $3,375. Thereafter, on January 21, 1909, upon application of Merriam and wife, a writ of certiorari was issued out of this court to review alleged errors in the preliminary proceedings. While that writ was pending here final judgment for damages and a decree of condemnation were entered in the lower court on March 6, 1909. Thereupon Merriam and wife appealed from that final judgment.

It is contended by the appellants that the petition does not state facts sufficient to entitle the petitioner to condemn appellants' property. The petition does not state that the railway company was incorporated as a public service corporation or as a common carrier of freight and passengers. It states that the petitioner 'is a corporation duly organized and existing under and by virtue of the laws of the state of Washington, * * * and has power by the terms of its articles of incorporation, among other things, to construct, own maintain, and operate a line of railroad from the city of Seattle in the state of Washington to Spokane; * * * that your petitioner is duly authorized to appropriate lands,' etc. No demurrer was interposed to the petition, and no objection appears to have been made to the introduction of evidence at the time of the preliminary hearing. The articles of incorporation were received in evidence. These articles show that the corporation is a public service corporation, and a common carrier of freight and passengers for hire, and authorized to exercise the power of eminent domain, and the trial court so found. Thereafter, when the question of damages came on for hearing, a general objection was made to the introduction of evidence, upon the ground that the petition in condemnation was insufficient, which objection was overruled; and it is argued now, upon both branches of the case, that the judgment should be reversed for that reason. It is entirely immaterial now whether the petition was technically sufficient, because the record shows that the petitioner is a public service corporation under its charter, and under the statute is authorized to exercise the power of eminent domain. In such cases it is the duty of this court to determine the case upon the merits, disregarding technicalities, 'and to consider all amendments which could have been made as made.' Green v. Tidball, 26 Wash. 338, 67 P. 84, 55 L. R. A. 879; Peterson v. Barry, 50 Wash. 361, 97 P. 239, and cases there cited. We try the case here upon the facts shown rather than upon the allegations of the petition.

It is next argued that the court erred in excluding evidence to the effect that officers of the petitioner had attempted to make an agreement with the ...