Seattle & Montana Railway Co. v. Murphine

The opinion of the court was delivered by

Anders, C. J. —

This was a proceeding by appellant to appropriate a strip one hundred feet wide across the lands of respondents for the purpose of a right-of-way for its railroad. The land consists of a single enclosure containing about twenty-five or thirty acres. It lies in the valley of theStilaguamishriver,in Snohomish county,and islowand level agricultural land, and especially adapted to the raising of hay, for which purpose it seems to have been used for several years. It was also used as a pasture for stock during several months of each year. Appellant’s right-of-way passes across the tract in such a manner as to cut off about three acres from the east side thereof, and the grade of the railroad thereon is shown to be about four feet in height. The three acres thus detached from the main body of the land is an angular, wedge-shaped piece. On it is situated a spring, from which the respondents procured water both for domestic purposes, and for stock, by means of an open ditch two and a half feet deep and eighteen or twenty inches wide. The right-of-way lies between the spring and the dwelling house and other improvements of respondents, and the railroad embankment would naturally obstruct the flow of water through the ditch. But the railroad company stipulated and agreed to construct a culvert across the right-of-way three feet wide and four feet high underneath its road bed, and that therespondents should have the privilege of putting and maintaining a water pipe therein for thepurpose of conducting water from the spring to the premises of respondents in the place occupied by the open ditch; and the respondents likewise agreed to construct and maintain said water pipe so as not to interfere in any way with the rights of the company in and to the right-of-way sought to be condemned. The amount of land included in the right-of-way seems, from the evidence, to be a little less than two acres. At the trial the jury rendered a verdict in favor of respondents, awarding damages in the sum of $1,148, and judgment wasrendered accordingly. The petitioner brings the case here for review.

At the beginning of the trial both the petitioner and the respondents claimed the right to open and close the case. The court decided in favor of the respondents, and that decision of the court is assigned as error.

Upon the question whether, in cases of this character, the petitioner has the right to open and close, the decisions of the courts of the various states are not uniform. Where not controlled by statute, the courts all base their decisions on the general principle that the party on whom rests the burden of proof is entitled to begin and reply. The majority of the cases seem to hold that the burden of proof is upon the land owner, and consequently give the opening and closing to him. In this state, no private property can be taken or damaged for publicor private use without just compensation being first made or paid into court for the owner, and no right-of-way can be appropriated to the use of any corporation, other than municipal, until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensationmustbe ascertained by a jury,unless a jury be waived, as in other civil cases in courts of record, in the manner prescribed by law. Sec. 16, Art. 1, Constitution. The proceeding must beinaugurated by the party seeking to appropriate the land. This is done by presenting to the superior court of the county in which the land is situated, or to the judge of such superior court in any county where he has jurisdiction or is holding court, a petition describing the land and premises sought to be appropriated with reasonable certainty, and setting forth the name of each and every owner or other party interested in the same, so far as the same can be ascertained from the public records, and the object for which the land is wanted, and praying that a jury be impaneled to ascertain and determine the compensation to be made in money to all persons interested, irrespective of any benefit from any improvement proposed by such corporation, or if a jury be waived, then that the compensation to be made be ascertained and determined by the court or judge thereof. Notice is given to the owner and' other parties interested in the premises sought to be appropriated of the time and place, when and where the petition will be presented to the court or judge; and at the hearing of the petition, if the court is satisfied that the contemplated use for which the land is sought to be appropriated is a public use, and that the public interest requires the prosecution of such enterprise, and that the land sought to be appropriated is necessary for the purposes of such enterprise, a jury is summoned by order of the court to assess the damages. Laws of 1889-90, p. 294.

From the above provision of the statute it will be seen that the corporation seeking the condemnation of land for its corporate uses is required to bring the land owner into court in a certain prescribed manner, and to show that the use for which the land is sought to be appropriated is a public use, that the public interest requires the prosecution of the enterprise in which it is engaged, and that the land sought to be appropriated is necessary for the purposes of such enterprise. As to all of these matters the burden of proof is, of course, upon the petitioner. Having gone thus far, and having come to the question of the amount of damages, does the burden of proof shift to the landowner, or remain with the petitioner? Our statute provides that witnesses may be examined by either party to the proceedings, but no answer or plea is - required to be filed to the petition in any case. In contemplation of law, therefore, the amount to be paid is to be determined upon the petition alone, without formal pleadings or issues. No formal pleadings or issues being contemplated or required by the statute, in order therefore to determine which party ought to open and close, it is necessary to consider what is the substantial issue to be established, and on which party is imposed the burden of establishing it.

The substantial fact to be determined, in this class of cases, is not whether the compensation is more than the petitioner concedes to be just, or is willing to pay, as some of the cases would seem to hold, nor whether the compen. sation to be made is less than the owner of the land is willing to receive, but simply what is full compensation.

The question of damages cannot be tried upon the claim or demand of the landowner. The proceeding is not an action by him to recover damages for land actually taken, but is a proceeding instituted by the petitioner to ascertain what is a full compensation for the taking or injuriously affecting the land; and before the land can be taken at all, the petitioner must proceed affirmatively, and have the amount of compensation “ascertained and determined,” according to law, or not succeed in the appropriation. If no proof should be offered, the petitioner would be defeated, and the proceeding would be dismissed. And this being so, the petitioner had the right to begin and reply, both in the introduction of evidence and in the argument to the jury. See 1 Wharton on Ev., § 357; Bellingham Bay, etc., R. R. Co. v. Strand, ante, p. 311; 1 Thompson, Trials, p. 238; McReynolds v. Burlington, etc., Ry. Co., 106 Ill. 152; South Park Commissioners v. Trustees, 107 Ill. 489; Neff v. Cincinnati, 32 Ohio St. 215; Fort Worth & R. G. Ry. Co. v. Culver (Tex. App. Oct. 23, 1889), 14 S. W. Rep. 1013; Alloway v. City of Nashville, 88 Tenn. 510; Montgomery, etc., R. R. Co. v. Sayre, 72 Ala. 443; Harrison v. Young, 9 Ga. 359.

But it is contended in this case on behalf of the respondents that an answer and reply were filed which raised an issue entitling the respondents to assume the burden of proof. It is true that a pleading, purporting to be an answer, was filed in the case, but it was not required by law, and alleged no fact which could not have been proved in its absence. It was a statement of what the respondents claimed to be the value and quantity of the land sought to be appropriated, together with certain other statements showing in what manner and to what extent they would be damaged by the proposed appropriation. It set up no affirmative defense to the proceedings anddid not deny anything alleged in the petition, except such matters as the court was called upon, in limine, to judicially determine.

And we do not think, as claimed by counsel, that if respondents had failed to appear and give testimony at the trial, the court would have been warranted in directing a verdict for the amount stated in the reply to be the value of the land sought to be appropriated. We are of the opinion that where there is a disagreement between the parties, and the jury is called to “ascertain and determine” the compensation to which the landowner is entitled, the amount of such compensation must be shown by proof, and not inferred merely from what one party is willing to give or the other to take.

It is also contended by appellant that the court erred in permitting testimony to be introduced concerning the cost of putting down water pipes for the purpose of conducting water from the spring across the right-of-way. But we do not see how appellant could have been prejudiced thereby, for the court, on motion of appellant’s counsel, struck out all of the objectionable testimony for the reason that that matter was covered by a stipulation between the parties which was on file in the cause.

Appellant further contends that the court erred in permitting witnesses to testify as to the cost of building fences along the line of the right-of-way and of a wagon crossing over the same, and in its instruction to the jury in regard thereto. The instructions complained of are as follows:

“Now, on the question of building a fence, if you find that it would be necessary for respondents or defendants in this case, in order to continue using this land for the purpose to which it is devoted now, for them to have a fence along the track, or on both sides of the track, then you will allow him whatever it is reasonably worth to put up a substantial fence along either or both sides of the track, as the testimony has shown.

“And further, if you find from the evidence that it is necessary for respondents to have a railroad crossing across the track and right-of-way of the railroad, and that it is necessary for them to have this for use for the purposes for which the land is devoted, then you will say how much it will take to build a substantial crossing, and in case that fact has not been established, you can allow a reasonable amount for the building of such crossing, if you find such crossing is necessary.”

While the first of these instructions of the learned judge is not unsupported by authority, we nevertheless think it is justly open to criticism, and should not have been given. The amount of damages the owner of the land is entitled to recover is the market value of the land actually taken, irrespective of any benefit from any proposed improvement, together with any depreciation in the market value of the remainder caused by the taking of the right-of-way

If, by reason of such taking, additional fencing is made necessary, in order that the residue of the land may be conveniently used as the owner'may desire to use it, the burden of constructing such fence, in so far as it depreciates the market value of the land, is a proper element to be considered in estimating the damages. Lewis on Em. Dom., § 498. The damages should be estimated in respect to the land, as land, and whatever casts a burden upon it, and thereby detracts from its market value, should be taken into consideration. The cost of necessary fencing and crossings may be shown to aid the jury in determining the extent of the burden thereby imposed upon the land. Lewis on Em. Dom., supra. Stone v. Heath, 135 Mass. 561. But as it is not certain in all cases, and perhaps not in any case, that the land will be depreciated in value in the exact proportion to the cost of fencing and crossings, no specific sum should be allowed for fences or crossings as distinct items of damage, but the allowance should be made only to the extent of the depreciation of the value of the land. See Lewis on Em. Dom., § 498. Henry v. Dubuque & Pacific R. R. Co., 2 Iowa, 288; Kennedy v. Dubuque & Pacific R. R. Co., 2 Iowa, 521; Hanrahan v. Fox, 47 Iowa, 102; Penn., etc., Canal Co. v. Bunnell, 81 Pa. St. 414; Pittsburgh B. & B. R. Co. v. McCloskey, 110 Pa. St. 436; Pittsburgh V. & C. Ry. Co. v. Vance, 115 Pa. St. 325; Curtin v. Nittany Val. R. Co., 135 Pa. St. 20.

Under some circumstances the value of the premises might be greatly enhanced by the building of a fence, and, in such cases, it would be manifestly unjust to compel the railroad company to build, or, which amounts to the same thing, pay for building it in the absence of any statute requiring it to do so. The judge charged the jury, in effect, that the measure of damages would be the difference between the market value of the premises immediately before and after the appropriation of the right-of-way, irrespective of any benefits from th e proposed impro vem ent. He should then have told the jury that in order to arrive at this difference in value, they might take into consideration the burden of increased fencing in so far as the value of the land was thereby depreciated, instead of charging them to allow whatever the evidence showed it was reasonably worth to put up a substantial fence along either or both sides of the track. The instruction respecting the crossing is especially objectionable, for thejury were thereby directed to find the reasonable cost of constructing a crossing, if found to be necessary, even although the same had not been established by the evidence. The jury were not at liberty to determine that or any other question upon mere conjecture without proof.

Appellant also complains of the ruling of the trial judge in permitting the question, “What is the value of this land for the purpose of raising hops,” to be propounded to and answered by a witness. It is claimed that this evidence was inadmissible and misleading, for the reason that the land had never been used for raising hops, and that the value put upon it for that purpose was in excess of the real value. Before this question was asked, it had been shown that this land was very fertile and productive, and that it was under drained and thoroughlyprepared for agricultural purposes. It had been devoted to raising hay for several previous years, not because nothing else would grow upon it, but because the hay crop was more profitable than any other. The witness answered that the land was worth three hundred dollars an acre for raising hops; but other witnesses had already testified that it was worth that sum for general agricultural purposes, and especially for raising; hay. Appellant could not, therefore, have been prej udiced by the answer to the question, even if we concede that the question itself was improper, which we do not.

The market value of property is its value for any use to which it may be adapted, and in estimating its value all the uses of which the property is susceptible should be considered, and not merely the condition in which it may be at the time and the use to which it may have been put by the owi^er. Lewis on Em. Domain, 478. In San Diego Land & Town Co. v. Neale, 78 Cal. 63, this question was thoroughly discussed and many authorities cited and reviewed,, and it was there held that it was proper to show the value of the land sought to be condemned “as a reservoir site.” In Boom Co. v. Patterson, 98 U. S. 403, three islands in the Mississippi river were sought to be appropriated for the purpose of a boom. The land had never been used for such purpose, and for any other purpose was of little value. But in view of its peculiar adaptability to boom purposes it was found to have a great value. The supreme court of the United States sustained a verdict for §9,358.83, although the value of the property for general uses was but §300. With reference to the question of value where land is taken by the exercise of the right of eminent domain, the court, by Field, J., said:

“In determining the value of land appropriated for general public purposes, the same considerations are to be regarded as in a sale of property between private parties. The inquiry in such cases must be, what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted; that is to say, what is it worth from its availability for valuable uses. Property is not to be deemed worthless because the owner allows it to go to waste, or to be regarded as valueless because he is unable to put it to any use. Others may be able to use it and make it subserve the necessities or conveniences of life. Its capability of being made thus available gives it a market value which can be readily estimated. Their adaptability for boom purposes was a circumstance, therefore, which the owner had a right to insist upon as an element in estimating the value of his lands.”

So, the owner of the land in question, in this case, had a right to show, if he could, that his land was available for thepurpose of hop culture, and to insist that its value should be estimated with reference to that circumstance, although no hops had ever been grown upon it. *

For the errors above indicated the judgment of the court below is reversed and the cause remanded for a new trial in accordance with this opinion.

Hoyt and Stiles, JJ., concur.