State v. Williams

• Decision Date: 24 December 1941
• Docket Number: 28134.
• Citation: 12 Wn.2d 1,120 P.2d 496
• Parties: STATE v. WILLIAMS et al.
• Court: Washington Supreme Court

120 P.2d 496

12 Wn.2d 1

STATE v. WILLIAMS et al.

No. 28134.

Supreme Court of Washington

December 24, 1941

Department 1.

Condemnation proceeding by the State of Washington against Frank P Williams and Eleanor Briggs Williams, his wife, and others and Lucia Rose, nee Caponero, and Frank Rose, her husband. From a judgment awarding compensation and damages to Lucia Rose and her husband, the State appeals.

Affirmed.

Appeal from Superior Court, King County; James B Kinne, Judge.

Smith Troy, P. H. Winston, and L. C. Brodbeck, all of Olympia, for appellant.

Nicholas A. Maffeo, of Seattle, for respondents.

DRIVER Justice.

This is an appeal from a judgment awarding compensation and damages to landowners, Lucia Rose and Frank Rose, her husband, in condemnation proceedings. The proceedings were instituted by the state, at the instance of the Washington Toll Bridge Authority, to acquire the right of way for a highway tunnel, in the city of Seattle, in connection with the construction of the Lake Washington concrete pontoon toll bridge, and to provide a suitable westerly approach for that structure.

The condemnation petition involved a considerable number of different tracts, but settlements our of court Before trial were effected as to all but three of them. The instant case was separately tried to a jury. A case involving the other two tracts was tried to the court and separate judgments were entered for the amounts awarded to the respective owners. The state appealed from both judgments. The appeal as to one of them was dismissed in this court ( State v. Williams, 5 Wash.2d 419, 105 P.2d 723), and the opinion in the other (State v. Williams) is reported in 120 P.2d 502.

From maps introduced by the state and from other evidence in the record, the tunnel in question may be described as follows (the dimensions are approximations, which we deem sufficiently close for the purpose of this opinion): It consists of twin parallel bores, each 35 feet wide and 25 feet high from grade line to top limit of excavation, with an unexcavated core 27 feet wide between the bores. The tunnel extends east and west a distance of 1,446 feet, under what is commonly known as Mount Baker ridge, in a residential section of the city. There is a pronounced slope on both the east and west sides of the ridge. At its highest point, the surface of the ridge is 151 feet above the bottom, or grade line, of the tunnel.

Respondents' property consists of two lots on the westerly slope of the ridge. Near the east property line, there is a one-story and basement frame dwelling and a frame garage. The west end of the tract is about 148 feet and the west end of the house is 212 feet from the west tunnel portal. Approximately, the southerly 21 feet of the tract and the southerly 16 feet of the dwelling are directly above the north bore of the tunnel. The top of the tunnel is about 47 feet below the level of the basement floor of the house.

Prior to the trial on the question of damages, the court, on appellant's application, entered an order, in conformity with the provisions of Rem.Rev.Stat. § 894, granting to appellant the right to take immediate possession of and use the lands of the respondents for the purposes set forth in the condemnation petition, and adjudging that the appellant should be bound to pay the full amount awarded by any final judgment of compensation and damages for the appropriation of such lands.

At the time of the trial, construction work was in progress. A pioneer drift had been driven through that portion of the north bore directly beneath respondents' property, and the west tunnel portal had been excavated. A ground slide had occurred on the west side of the ridge, which involved respondents' tract. Following the ground movement, their house and garage had settled about two and a half feet and had slipped horizontally southward about three feet. The dwelling was rendered uninhabitable.

A qualified engineering expert, testifying for respondents, in answer to the question 'What is your opinion as to what caused the slide?' stated: 'The slide, which includes the area of this [respondents'] property within it, was caused by the excavation made at and in the vicinity of the west portal to the tunnel. That excavation removed the toe of the hill, and removing the lateral support of the hill caused this earth in this vicinity to slide toward the portal.'

Another engineering expert, called by respondents, also expressed the opinion that the slide had been caused 'primarily' by the west portal excavation. This testimony was not disputed. There was no contention that the weight of the buildings on respondents' tract materially contributed to the sliding or subsidence of their land. On cross-examination, each of the two expert witnesses expressed the opinion that the west portal had been excavated on a slope of about one to one, or one and onehalf to one; that this steepness of the cut had started the slide; and that it would not have happened had the excavation been made on a flat enough slope. One of them testified on cross-examination that the ground formation of Mount Baker ridge is sand and gravel on the surface with an underlying stratum of blue clay 50 to 70 feet deep. He stated that the same formation exists generally in the hills of Seattle.

On rebuttal, the state offered in evidence the standard specifications of its department of highways, with certain amendments and 'special provisions written to cover the construction of the tunnel of the Lake Washington Bridge.' An objection to their admission was sustained, and counsel for the state then made the following offer of proof: 'My offer of proof is to show from the contract Plans and Specifications that we were not in any manner to direct the contractor in making the excavations at the portals or direct the manner or slope upon which he should make them; that the manner and method of making the construction, in providing the tunnel entrance to the construction of the tunnel portal was a matter entirely within his own control; that the only thing that the Plans and Specifications show is the result which he must accomplish, except that they show the contents of the concrete to the amount of reinforced steel he should use, but not the manner in which he was to excavate at the portal; that the contractor selected his own method of excavation; that he excavated at a one to one slope, upon which the ground would not stand, or which at least constituted a removal of the lateral support, which caused this slide, and which is not under the control or authority of the Toll Bridge Authority; to show that none of the specifications shall be construed as attempting to control or supervise the manner or method by which the excavation shall be carried on; that the method or procedure of his use of equipment, choice of slope from which he took this material, or takes any other material, he does on his own responsibility.'

The appellant assigns as error the trial court's rejection of the foregoing offer. There are other assignments of error based upon certain instructions given by the court and upon the court's refusal to give certain instructions proposed by the appellant, but it is not necessary to give any of such assignments separate consideration, because they all relate to, and depend upon, the offer of proof. If the proffered proof was admissible, then the court erred in the giving and the refusal to give the instructions in question; but, on the other hand, if the proof was properly rejected, then there was no error with reference to the instructions.

Appellant's position seems to be this: The offer indicated that the removal of lateral support and the resultant slide affecting respondents' land was due to lack of care on the part of an independent contractor in the construction of the tunnel portal, and the proof was therefore admissible for the following reasons: First, damages for injury caused by negligence can not be recovered by a landowner in a condemnation proceeding; second, such damages can not be recovered against the state as a damaging of property for public use for which compensation must be made under Art. I, § 16, of the state constitution; and, third, the state is not liable for injury to land caused by the negligence of an independent contractor in the construction of a public improvement.

First, it is true that, in this state, the method prescribed by law for the taking of private property for a public use is a special statutory proceeding which differs in many respects from the ordinary civil action. See Rem.Rev.Stat. § 891 et seq. When the state or other public body prosecutes such a proceeding to appropriate private property for the construction at some future time of a public improvement, naturally, it is assumed that the work will be done in a proper manner without negligence; and the property owner is entitled only to such compensation and damages as can reasonably be foreseen as the result of the improvement constructed in that manner.

But where, as in the instant case, the public work for which private property is to be appropriated has been done Before the amount of damages has been judicially assessed, then the owner is not limited to damages which could have been foreseen, but may recover all damages which come within the provision of Art. I, § 16, of the constitution, that 'No private property shall be taken or damaged for public or private use without just compensation having been first made or paid into court for the owner.' Carpenter-McNeil Inv. Co. v. Spokane, 73 Wash. 232, 131 P. 823; Grosshoff v. Spokane, 73 Wash. 681, 132 P. 643; Yakima County v. Olson, 94 Wash. 579, 162 P. 987, 988. In the case last cited, this court said: '* * *...