Sultan Water & Power Co. v. Weyerhaeuser Timber Co.

• Decision Date: 10 April 1903
• Citation: 31 Wash. 558,72 P. 114
• Court: Washington Supreme Court
• Parties: SULTAN WATER & POWER CO. v. WEYERHAEUSER TIMBER CO.

72 P. 114

31 Wash. 558

SULTAN WATER & POWER CO. v. WEYERHAEUSER TIMBER CO.

Supreme Court of Washington

April 10, 1903

Appeal from Superior Court, Snohomish County; John C. Denney, Judge.

Condemnation proceedings by the Sultan Water & Power Company against the Weyerhaeuser Timber Company. From an assessment of damages defendant appeals. Reversed.

Brownell & Coleman, for appellant.

A. R Titlow and Bell & Austin, for respondent.

MOUNT J.

Respondent brought this action to condemn a right of way 100 feet wide for a ditch and flume across lots 8 and 14 in section 19 township 28 N., range 8 E., W. M., in Snohomish county, Wash., and for the erection of a dam across the Sultan river at a point on lot 8. The appellant is the owner of lots, 1, 7, 8, and 14, and the east half of the southeast quarter of section 19, which is one body of land on the east bank of the Sultan river. It also owns large tracts of lands to the north and east of section 19. These lands are valuable for the timber standing thereon. The Sultan river is navigable for floating logs, shingle bolts, and wood down stream. The dam which respondent proposes to construct across the river is to be 50 feet wide at the base, 10 feet wide at the top, and 25 feet high. Respondent proposes to take out of the river at the dam 60 cubic feet of water per second of time. Upon the service and filing of the petition for condemnation the parties appeared, a hearing was had, and the court adjudged that the contemplated use of the premises sought to be appropriated was really a public use, and that the land and water claimed were required and necessary for such use, and ordered a jury to assess the amount of damages to appellant. At the trial the jury awarded the appellant the sum of $55, which amount is conceded to be sufficient for the land actually taken and for the damages to the land described in the petition. The errors alleged go to the refusal of the court to allow certain evidence offered by appellant.

Respondent moves to dismiss this appeal because no motion for a new trial was made by appellant. On questions of this character no motion for a new trial is necessary. Carter v. Seattle, 21 Wash. 585, 59 P. 500; 2 Ballinger's Ann. Codes & St. § 5056. The motion to dismiss is therefore denied.

The court at the trial limited the inquiry as to damages to the lands actually taken and to the remainder of the lands described in the petition, which were lots 8 and 14 in section 19. The appellant offered to show that it was the owner of other lands adjacent to the tract described in the petition, and which will be damaged by increased expense in logging the timber therefrom by reason of the ditch and flume, and also by reason of the obstruction in the river. Five sections of these lands lie to the northwest of section 19, on the opposite shore of the river from the lands sought to be condemned. These sections are not adjoining, except that they corner together. They do not comprise a continuous tract, but lots 1 and 7 and the east half of the southeast quarter of section 19 are in one body with lots 8 and 14, described in the petition, and constitute an entire tract. We think the court erred in not permitting evidence by appellant to show what damage the construction of the ditch and flume would cause to the lands owned by appellant in one body in section 19. Section 16, art. 1, of the Constitution, provides. 'No private property shall be taken or damaged for public or private use without just compensation having been first made.' This court has held that the measure of damages in such cases is the value of the land taken, together with damages to the land not taken. Seattle & M. R. Co. v. Roeder, 70 P. 498. Where damages are allowed for part of a tract of land not taken, it sometimes becomes difficult to determine what is to be regarded as an entire tract. 'In general, it is so much as belongs to the same proprietor as that taken, and as continuous with it, and used together for a common purpose.' 2 Lewis on Eminent Domain (2d Ed.) § 475. The lands in section 19 belonging to appellant are one continuous tract. Lots 8 and 14 are fractional parts of the section designated as lots. Respondent could not limit the damages by describing in his petition only a part of the tract of land. If the ditch and flume make logging operations on this piece of land more difficult or expensive, and thereby render the land with the timber on it less valuable, this may be shown to increase the damages.

In regard to the other sections of land, the court, we think properly rejected evidence as to damages thereto, because they are not adjacent to section 19, and are contiguous only by reason of the fact that section 17 has a common corner with section 19. Other sections likewise corner with each other at a common point. These lands are...