Oregon Railway & Navigation Co. v. Owsley

13 P. 186, 3 Wash. Terr. 38, 1887 Wash. Terr. LEXIS 2

Opinion

Mr. Chief Justice Greene

delivered the opinion of the court.

A proceeding was instituted under the Code by appellant, the railway company, for the appropriation and condemnation of a strip of land one hundred feet in width across the premises of appellee, upon which to construct and operate its railway. In the proceeding an award of damages was had, to which objections were filed pursuant to statute. Thereupon, as provided by statute, the cause was placed on the trial docket of the District Court, and issues were formed between the appellee as plaintiff, and appellant as defendant, by the filing of the ordinary pleadings in a civil action.

In the complaint was alleged the incorporation of the railway company, its authority to construct and maintain a railroad extending across certain described land owned by the plaintiff, the appropriation by the defendant of a strip thereof one hundred feet in width, and damages in the sum of four thousand dollars.

The answer admitted the appropriation; denied damages; and for affirmative defense, alleged that while engaged in locating its road across plaintiff’s premises, and after it had selected, surveyed, and staked out a route for its railroad over the same, the plaintiff designated another line over his premises, and requested defendant to adopt the new line in lieu of that first selected, and agreed with defendant that if it would do so no damages would be claimed by reason of the location and construction of the railroad across the land. The answer further affirmatively alleged that defendant, relying on plaintiff’s promise in that behalf, and induced thereby, changed its original location, and at considerable extent built its road as desired by plaintiff. All of this affirmative matter was denied by plaintiff in reply.

The issues thus made up were tried by a jury, who brought in a verdict for plaintiff in the sum of one thousand dollars damages. Judgment was rendered upon the verdict, and from the judgment this appeal is prosecuted.

In course of the trial it appeared in evidence for plaintiff that certain irrigating ditches, crossing the right of way, were interfered with and obstructed by the construction of the railroad. There was also evidence tending to show that at the time of commencement of the appropriation proceeding the construction was not complete. Thereupon the defendant offered to prove by testimony of its constructive engineer that according to the plans for construction the irrigating ditches were to be placed by the company in the same condition as before construction, and were to be maintained in that condition afterwards by the defendant at its own expense. Defendant also offered to show by the same witness what would he the expense of replacing the ditches interfered with, and of putting them again in the same condition as they were before the beginning of the construction,, and that he was instructed by defendant during and as part of the construction to replace the ditches at defendant’s cost, and put them in the same condition as found. All these offers were overruled by the trial judge, and exceptions to his rulings were duly taken and allowed.

Whether these rulings were correct is the first question in the case. The decision of it seems to us to depend upon what interpretation — in the light of the varied modes and devices whereby, under our civilization, lands may be made available or raised in value, for agricultural and other purposes, and subject to the constitutional inhibition that no private property shall be taken for public use without just compensation — is to be given-to the provisions of sections 2473 and 2474 of our Code, respecting damages to be assessed upon the appropriation of land for right of way. These sections, or as much of them as is necessary to consider, and with the expressions particularly in question marked by Italics, are as follows: —

“ Sec. 2473. Whenever any corporation authorized to appropriate lands for the right of way is unable to agree with the owner thereof as to the compensation to be paid therefor, either such corporation or the owner of such land may, by petition in which the land sought to be appropriated shall be described with reasonable certainty, apply to a justice of the peace in and for the county where said land lies, who shall thereupon summon three disinterested householders, .... and the householders so summoned, after being sworn faithfully and impartially to examine the ground which shall be pointed out to them by such corporation or person, or both, and described in the petition, shall assess the damages which they believe the owner or owners will sustain over and above the additional value which the owners of adjoining land will derive from the construction of such road, canal, or other work.

“ Sec. 2474. Upon the payment to such justice, for the use of the owners or to the owners of such lands, of the damages assessed by said householders or a majority thereof, said corporation shall have the right to appropriate the land in question to its own use for corporate purposes, subject to the action of the district court in regard to damages as hereinafter provided; provided, that nothing herein contained shall be construed to prevent such ■corporation from going upon such lands for the purpose of preliminary surveys and exploration, and laying out the road or work.”

It is not necessary for us to decide whether this language imports that the corporation is to acquire the fee ■or a mere easement. In either case the appropriation is conditioned for a particular use, and for the construction of a specific work. It is a common-sense view, and is manifestly contemplated by the legislature, that the ■owner whose land is taken will sustain a different kind and amount of damage from a work of one sort from a work of another sort, — from a railroad, for example, from that he would from a plank road, or an aqueduct, ■or. a canal, or an electric wire; and by parity of reason, and for further illustration, from a railroad to be constructed on the natural surface of the ground, from that he would from one to be constructed in a cut, or on an embankment, or in a tunnel. Hence the statute prescribes' that the damages to be assessed shall be those that the owner “will sustain .... from the construction of such road, canal, or other work,” and not simply what he will sustain by being deprived of the land, or wholly or partly of the use of it. Thus the corporation is saved from having to pay more, and the land-owner from having to put up with less, than the “just compensation ” enjoined by the constitution. The land-owner is not left at the mercy of the avarice of a corporation, nor the corporation at the mercy of the imagination of a jury; for the rule of our statute must have this corollary: that if the future exigency of the corporation should induce it to depart from the original construction so far as to subject the iand-owner to additional and substantial damages, then it must institute against him new proceedings for assessment or payment of them, or be liable to have such proceedings instituted against itself by him; and if it, without the supervention of such exigency, proeeeds to take his property or diminish his rights, it is liable to injunction or a common-law action for damages.

We see no reason why any corporation seeking appropriation of a right of way should not be held entitled to the benefit of all the ingenuity and economy it may have at command in the planning and construction of its works, not only with reference to outlay for material and labor, but also with reference to compensatory damages to property owners along its right of way. If it sees fit to leave unappropriated so much of the land-owner’s interest as consists in an easement for irrigating ditches across the right of way, there is no rule of law of which we are aware .to prevent it doing so. It surely cannot be sound law that the corporation must take everything or nothing. Rather, it is bound to use its right of appropriation so as not to destroy or interfere with or debar any rights which may reasonably stand without prejudice to its own legitimate operations. The principle upon which it is allowed to become the agent of the commonwealth, to exercise the right of eminent domain, is not that it may as such agent do whatever it pleases, but rather that it may do whatever is reasonably necessary and convenient. Anything beyond this is not the taking of private property for public use, but the taking ■of it for private use. That same limitation which eommonly attends the exercise of delegated power granted by a legislature in géneral terms, and which courts have often had occasion to recognize and apply in cases of municipal corporations, namely, that the exercise must bo within the bounds of what, under all the circumstances, is fair and reasonable, we hold obtains in cases of the kind now before the court. This is the limit, on the one hand, of the liability of the land-owner to have his property taken, and on the other, of the liability of the appropriating corporation to him for compensation. The land-owner has his remedy for any corporate action in excess, but the remedy is not to be found, except incidentally, and by way of estoppel, in the condemnation proceeding. Upon the trial which we are reviewing,, it would not have been permissible for the defendant to set up, over plaintiff’s objection, its own wrong, and bring evidence to prove that a fair and reasonable exercise of the right of eminent domain would not damage plaintiff so much as the road as actually built or building was damaging or would damage him, but defendant would have been conclusively presumed, as against itself and in favor of plaintiff, to have done and be doing only that which was fair and reasonable in the premises. Yet the defendant was at liberty, if he could, to show that its structure was unfinished; that its plans called for such and such a construction; and that its works were being actually constructed in accordance therewith. The damages to be recovered were those damages which would be consequent upon a work of the nature and description of that which was in process of construction, or was to be or had been constructed, at the date of the initiation of the appropriation proceeding. But whatever had been done by way of construction, up to the date of trial, was admissible in evidence to show the real character of the work.

These are our views, and in so far as they are inconsistent with the rulings of the learned trial judge as> respects the admissibility of the testimony offered, we think those rulings are erroneous.

Of his own motion, the district judge gave the jury two instructions, to the giving of each of which the appellant duly excepted. To the former of these, appellant objects that it had a tendency to mislead the jury as to how they should deal with general benefits affecting ap pellee’s farm. The language of the instruction does not accurately express the law, and was probably suggested by the peculiar and somewhat obscure phraseology of our statute. Doubtless our legislature intended to say that damages should be assessed, without regard to any enhanced value caused by the construction, and shared in common by plaintiff and others, owners of land in that vicinity adjoining the improvement. But this jury were told impliedly to take into account the general benefit to plaintiff’s land, by being expressly told to exclude the general benefit to the farms of his neighbors. This was error, but not to the plaintiff’s prejudice.

The latter instruction is objected to, because, while it allows to the plaintiff a qualified right, it allows to the defendant a counter-right, which virtually makes the plaintiff’s right nugatory. What has been said respecting the rulings on evidence is applicable to this instruction. If, according to the plan of construction of the defendant’s railroad, — actual, and not mere paper plan, —plaintiff was to have or did have water passage from one side of the road to the other for purposes of irrigation, then he had a substantial right to such passage, and could enforce it against the railroad company. It follows that no just estimate of his damages could be arrived at, without taking that right into account as a substantial and permanent right, qualifying the amount he ought to recover. According to the instruction, the jury might include in their reckoning resulting damages from defendant’s lawless acts. They might also pass upon matters regarding which the defendant was not allowed to produce evidence. To give them to understand that they might do these things was error.

Among the instructions given at request of plaintiff were two upon which exceptions were saved. Both exceptions were well taken. In the first instruction, the jury were told that in order to render the affirmative defense available, the defendant must prove by a prepon devanee of evidence, and to your satisfaction, that the plaintiff made in substance “certain representations,”, etc.; “and must further prove by a preponderance of evidence, and to your satisfaction, that,” etc. From this the jury would naturally understand that the burden was on the defendant to prove his defense to a greater degree of certainty than that afforded by a mere preponderance of the evidence. Indeed, they might even be led to think that this defense needed to be established' beyond every reasonable doubt.

The second instruction must have been framed upon the theory that the railroad company was to take the right of way along the new line by contract,- instead of by eminent domain. But there is rfothing in the record to support such a theory. Pleadings and evidence both show that the railroad company never intended to obtain a right of way otherwise than by exercise of governmental power, and the plaintiff, by filing his complaint in the appropriation proceeding, estopped himself by record from asserting the contrary. Nothing could be litigated in a proceeding of this kind but a bare question of damages for appropriating land.

Two of the instructions asked by the defendant were refused by the court, and exceptions to its ruling were taken and allowed. We think both of the instructions were sound enunciations of law, and if preceded by evidence to support them, should have been given to the jury.

The judgment of the District Court must be reversed, new trial granted, and the cause remanded for further proceedings.

Hoyt, J., and Turner, J., concurred.