Tacoma Eastern R. Co. v. Smithgall

• Decision Date: 23 May 1910
• Parties: TACOMA EASTERN R. CO. v. SMITHGALL et ux.
• Court: Washington Supreme Court

108 P. 1091

58 Wash. 445

TACOMA EASTERN R. CO. v. SMITHGALL et ux.

Supreme Court of Washington

May 23, 1910

Department 1. Appeal from Superior Court, Lewis County; A. E. Rice Judge.

Proceedings by the Tacoma Eastern Railroad Company to condemn the lands of Herman Smithgall and wife for a right of way. From a judgment awarding damages, petitioner appeals. Reversed, and new trial ordered.

Hayden & Langhorne, for appellant.

A. H Garretson, for respondents.

RUDKIN C.J.

This proceeding was instituted by the Tacoma Eastern Railroad Company to condemn and appropriate a right of way, 100 feet in width, through certain lands owned by the defendants, for railroad purposes. The jury returned a general verdict in favor of the defendants in the sum of $1,822.66, accompanied by the following special findings: 'First. What do you find to be the damage to the land in question, by reason of the taking of that part thereof by these proceedings in the ordinary natural state, irrespective of the proposed reservoir and the flow of water and granite quarry thereon located? Second. What damages do you find in addition to the taking of the land in question by the plaintiffs herein, as asked for in addition to what the defendant would suffer, were the land in its natural condition devoid of water and the granite quarry thereon? Third. What damages do you find the plaintiff is entitled to recover by reason of the taking of the land by the plaintiff in these proceedings on account of the granite quarry irrespective of the land in general and the flow of water? Fourth. Do you consider in the making up of the estimate that the value of said granite quarry is largely increased, owing to the natural flow of water upon the premises, sought to be taken by the plaintiff herein, and the reservoir facilities for the storing thereof? If so, what increased amount do you place upon said quarry by reason of water facilities over and above what the normal value of the quarry would be without the use of said water for working purposes?' Answers to special interrogatories: '(1) $283.50. (2) $539.16. (3) None. (4) Yes. $1,000.00.' A motion for a new trial was denied, and from a judgment on the verdict this appeal is prosecuted. The facts, so far as deemed necessary to a proper understanding of the errors assigned, will appear in the course of the opinion.

On the 30th day of August, 1909, an order was entered, adjudging that the contemplated use was a public one, and that the public interests required the prosecution of the enterprise. Thereafter, and at the opening of the trial before the jury, the respondents tendered and filed an answer containing the following allegations: 'That the land herein sought to be condemned is not being taken by the petitioners, for the sole reason that they require the same for a more appropriate right as to interfere with, delay and in part destroy the efficiency and use of respondents' land for the purposes hereinafter mentioned. And is therefore unreasonable, unnecessary and not a proper taking of the land as contemplated by its right of eminent domain. That the respondents believe and allege that the said line is being located and built in large part as to destroy the efficiency and use of a valuable water power, now being and existing on the respondents' land. In that they have run their lines against the protest of these respondents, through and across respondents' proposed reservoir site on said land, and that if petitioners are permitted to carry out their plans, it will destroy in large part, the efficiency of the water power thereon existing. In that it would destroy the reservoir site, preventing the proper storage of water in the reservoir therein contemplated. That the respondents have upon this property a valuable quarry of merchantable granite, which can, by the proper use of the aforesaid water now existing upon said land, be quarried, mined, worked, finished and polished, and that ample power for the same can be so maintained as to make said quarry very valuable to the respondents, if unmolested as contemplated by the railroad company, petitioner herein. That the railroad company has already sufficient right of way, and is now operating its line over said road, as selected by its engineers as the best and most practical route for its road. That at nowhere in its petition has the said railroad company declared its intention of abandoning its former route, and that to run a second line through the land cuts it into three separate strips, in a semicircular form, leaving the said land in an unsightly, inconvenient and almost worthless condition for agricultural purposes, and, as respondents believe, for the sole purpose of injuring these respondents, without any proper recourse in damages or otherwise. That respondents believe and aver the fact to be that their damages in the aforesaid action, by reason of the aforesaid allegation, cannot be adequately ascertained by the jury for the reason that the said land is remote from the place of trial, so that the jury cannot personally inspect the same, and that the procuring of witnesses to testify in this cause is burdensome and expensive by reason of the fact that no one from this county can reasonably be had to go and view and estimate the damages without great loss of time and heavy expense of travel. And therefore this action heaps upon the respondents burdensome costs and expenses, which should be carefully considered by the jury in making up their estimate of damages.'

A motion to strike this answer was interposed, but the motion was denied, and the court permitted counsel for respondents to read the answer to the jury in the course of his argument and to comment on its provisions, over the objection and protest of the appellant. Upon these rulings the first error is assigned. In Seattle, etc., R. Co. v. Murphine, 4 Wash. 448, 30 P. 720, and State ex rel. Ami Co. v. Superior Court, 42 Wash. 675, 85 P. 669, we held that no answer is contemplated or required in proceedings of this kind, and that it is not error to strike such an answer from the files. Of course, it does not follow from this that the refusal to strike an answer in a condemnation proceeding is prejudicial error, for if the answer contains nothing improper it can do no harm. But whether an answer is proper or improper in this class of actions the answer in question was utterly irrelevant and should have been stricken. It presented no issue, and its manifest purpose and tendency was to create a prejudice in the minds of the jury. The court had already decreed that the...