State v. Ward

• Decision Date: 09 January 1953
• Docket Number: No. 31877
• Citation: State v. Ward, 252 P.2d 279, 41 Wn.2d 794 (Wash. 1953)
• Parties: STATE, v. WARD et ux.
• Court: Washington Supreme Court

Page 794

41 Wn.2d 794

252 P.2d 279

STATE, v. WARD et ux.

No. 31877.

Supreme Court of Washington, en Banc.

Jan. 9, 1953.

Rehearing Denied Feb. 20, 1953.

Gus Thacker, Chehalis, Ronald Moore, Kelso, for appellants.

Smith Troy and Paul Sinnitt, Olympia, for respondent.

MALLERY, Justice.

The is a condemnation proceeding to acquire a right of way in Lewis county, near Centralia, for a limited access highway known as primary state highway No. 1.

The appellants own a farm through which the right of way will run. The state will acquire 5 2/10 acres, which will leave all of appellants' farm buildings on a small tract of 5 1/10 acres on the easterly side of the proposed highway. Thirty-nine and five-tenths acres of the farm will lie to the west of it.

The plan of the proposed limited access highway includes a service road along the westerly edge of the right of way for use of the appellants in common with all other landowners on that side. The property to the east is served at present by a road which will continue to be available.

The appellants' land to the west is low and has no suitable building sites. The highway plan does not include an underpass. The distance from appellants' property on the west side of the highway to the part on the east of it will be 7,120 feet by the closest available route. This will, of course, have a considerable effect upon the feasibility of operating the farm as a unit.

The state introduced in evidence its complete plan for constructing the highway through appellants' property. It produced competent expert testimony as to the value of appellants' farm as a unit in its present condition. It also produced evidence of the value of both parcels of property remaining after the construction of the highway with the service road as planned. The aggregate value, after the construction of the highway, was found by the jury to be $14,000 less than its existing value. Appellants appeal from a judgment in that amount.

The amount of the judgment to be paid by the state to a landowner in a condemnation case is prescribed by RCW 8.04.080 [cf. Rem.Rev.Stat. § 894] as:

'* * * compensation * * * for the taking * * * thereof, together with the injury, if any, * * * to the remainder of the lands, * * * after offsetting against * * * such compensation and damages the special benefits * * * accruing to such remainder by reason of * * * the use by the state of the lands * * *.'

Not only is some of appellants' land taken, but their right of access to the highway from the remaining lands is also being condemned. Lack of access, of course, has a bearing upon the extent of the damage done to the remainder of the land, as well as upon the diminution of special benefits which ordinarily accrue to abutting land from the right to use the highway. The limited access feature of the highway must, therefore, be presented to the jury together with all other features of the proposed construction such as service roads, to enable it to properly assess all the elements of damage and special benefit that will result therefrom.

Appellants contend that the trial court erred in admitting evidence of the plan of the service road to be built on the west edge of the proposed highway. They contend that they should be paid damages in money as if there was not going to be a service road. Their theory is that evidence of such a plan invites the jury to substitute the service road in place of a money payment for the severance damages to appellants' farm resulting from cutting it into two unconnected parcels. They rely upon State v. Smith, 25 Wash.2d 540, 171 P.2d 853, in which the state was not permitted to construct a water tank as a substitute for one destroyed but was required to make restitution for the amount of the damages in cash.

There is no such question of substitution in the instant case. This is readily apparent when we realize that access to the land on the west side of the highway was not over any highway or road. Indeed, the road which served the entire farm did not lead from the buildings to the land in question. Nor is it contended by the state that the service road will give access between the two parcels of appellants' property. It is, therefore, not a substitute for severance damages. Without the service road, however, the land in question would be landlocked and practically valueless. Thus, the service road avoids the damage which a lack of access would cause. This is mitigation, not substitution.

The amount of damage which the entire project will do to appellants' land on the west side of the highway depends upon whether or not there will be a service road. The plan for it was therefore admissible in evidence for the guidance of the jury.

The trial court committed no error in declining to give appellants' requested instructions. The substance of those which correctly stated the law was in fact given. Those requested for the purpose of injecting speculation about an underpass to connect the remaining parcels of land were properly refused. It is the exclusive prerogative of the state to determine the details of the plan for the highway. The damages suffered and to be paid for are those occasioned by the particular plan it adopts. It would have been error to have instructed the jury with regard to such hypothetical situations as exist only in appellants' minds.

The judgment is affirmed.

HILL, HAMLEY, DONWORTH, FINLEY, WEAVER and OLSON, JJ., concur.

GRADY, Justice (dissenting).

If we had before us only the questions discussed in the majority opinion I would be able to concur in the result reached therein. The appellants moved for a new trial upon grounds which challenged the verdict and judgment from a constitutional standpoint and which presented the questions whether they had been denied due process of law and just compensation for the damage done to their stock and dairy farm by reason of the construction of a limited access facility. The majority opinion does not decide such questions. Art. I, § 3, of the constitution provides that no person shall be deprived of his property without due process of law. Art. I, § 16, provides that no private property shall be taken or damaged for public or private use without just compensation being ascertained and paid.

In a condemnation suit to acquire a right of way for a public highway the condemner has the burden of going forward and submitting to the jury evidence upon all of the factors and elements necessary to enable it to properly and uderstandingly ascertain the amount of 'just compensation' due the landowner for the taking and damaging of his property. He is not required to file an answer, but may present evidence upon all of the issues tendered by the petitioner and any defenses he may have. Such a case is essentially different from one where a landowner seeks to recover damages against one who has taken or injured his property. In the former case the landowner is not required to submit any rpoof as to the amount of compensation to which he is entitled, and the absence of such proof does not put him in the position of recovering only nominal damages as might be the case where he was suing for damages. In the condemnation suit the petitioner is entitled to open and close, both in the presentation of proof and the argument to the jury. Bellingham Bay and British Columbia R. Co. v. Strand, 4 Wash. 311, 30 P. 144; Seattle and Montana Ry. Co. v. Murphine, 4 Wash. 448, 30 P. 720; Seattle and Montana Ry. Co. v. Gilchrist, 4 Wash. 509, 30 P. 738; State ex rel. McPherson Bros. Co. v. Superior Court, 108 Wash. 58, 182 P. 962; Postal Telegraph-Cable Co. v. Northern Pac. Ry. Co., 9 Cir. 211 F. 824.

The early Washington cases just cited pronounce rules of law and procedure from which no departure has been made by this court. The conclusion justifiably to be reached from the cited cases is that if the condemner does not adequately furnish to the jury the necessary and proper data upon which it can ascertain and determine just compensation the property owner is denied due process of law, particularly in its procedural aspects, and the mandate of the constitution requiring the ascertainment of just compensation is not met.

It seems to me that the record before us for review falls far short of demonstrating that the respondent met the constitutional requirements and that such a conclusion necessarily follows when the situation disclosed thereby is portrayed.

The appellants own a tract of land located a short distance south of the city of Centralia, consisting of approximately fifty acres. The land abuts on a public highway on its east side, known as the airport road. It is bounded on the west by the Chehalis river. The river makes a curve to the east, serves as the southerly boundary for...