(47 Wash. 131) CHICAGO, M. & ST. P. RY. CO. v. ALEXANDER et al.

(Supreme Court of Washington. Sept. 7, 1907.) 1. EMINENT DOMAIN-COMPENSATION-INJURY TO PROPERTY NOT TAKEN-REMOTE LOSSES.

In proceedings by a railroad company to condemn a right of way, it appeared that defendants' land had a frontage of 455 feet on a river bank, and was at a considerable distance inland from Puget Sound, that the river had but little depth, and that large vessels could not reach defendants' land unless the river was dredged between it and Puget Sound. It did not appear that any dredging of the river to any point within two miles of defendants' land had ever been contemplated, and it was shown that the possibility of the river being dredged was very remote, and that there was no certainty that the United States government would ever require a drawbridge near defendants' land, and that the government had authorized a stationary bridge which did not touch defendants' land. Held, that the possibility that the river would be thereafter dredged so as to be navigable for large vessels requiring the construction of a drawbridge which when open would obstruct defendants' water front to the extent of about 76 feet was too remote to constitute an element of damages.

[Ed. Note. For cases in point, see Cent. Dig. vol. 18. Eminent Domain, §§ 237, 238.]

In proceedings by a railroad company to condemn a right of way, neither a party who has made an offer for the land nor the owner should be permitted to testify to the same for the purpose of showing value.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, § 267.]

5. EMINENT DOMAIN-ASSESSMENT OF DAM

AGES-EVIDENCE--REBUTTAL.

Where, in proceedings by a railroad company to condemn a right of way, it was not advised by any pleading that defendants would make the claim that the tract was particularly valuable for a large sawmill and manufacturing plant, or that being divided by its right of way it would be of little or no value for that purpose, and did not offer any evidence on that subject, evidence in rebuttal that a sawmill and manufacturing plant could be constructed and profitably operated on the land after being divided by its right of way was erroneously excluded as improper rebuttal.

6. TRIAL-INSTRUCTIONS-UNNECESSARY REP

7. EMINENT DOMAIN COMPENSATION USE FOR WHICH COMPENSATION MAY BE OBTAINED.

In arriving at the value of land taken for a public use, its market value may be shown, not merely for the use to which it may in fact be applied, but also with reference to the most available and valuable use to which it may be adapted.

[Ed. Note. For cases in point, see Cent. Dig. vol. 18. Eminent Domain, §§ 371-377.] 8. SAME.

In proceedings by a railroad company to condemn a right of way, it appeared that defendants' land had a frontage of 455 feet on a river bank, and was at a considerable distance inland from Puget Sound, and that the river had but little depth, and large vessels could not reach defendants' land unless the river was dredged between it and Puget Sound. It did not appear that any dredging of the river to any point within two miles of defendants' land had ever been contemplated, and it was shown that the possibility of the river being dredged was very remote. Held, that any valuable use of the land, based on navigation of the river by large vessels, was too remote and speculative to be considered either in fixing the value of the land taken or damage to the land not taken.

[Ed. Note. For cases in point, see Cent. Dig. vol. 18, Eminent Domain, §§ 237, 238.]

Appeal from Superior Court, Pierce County: W. H. Snell, Judge.

Condemnation proceedings by the Chicago, Milwaukee & St. Paul Railway Company of Washington against Hubbard F. Alexander and others. From the judgment assessing the damages in a certain amount, plaintiff appeals. Reversed and remanded for a new trial.

H. S. Griggs, H. H. Field, and Wm. P. Reynolds. for appellant. Hudson & Holt and J. M. Ashton, for respondents.

CROW, J. Action by the plaintiff, Chicago, Milwaukee & St. Paul Railway Company, against Hubbard F. Alexander and others, to condemn land near the city of Tacoma for a right of way. After an order had been entered adjudging the proposed use to be public, a jury was impaneled, and awarded the defendants $55,205 for the value of the land taken and damage to the land not taken. From a judgment assessing damages in this amount, the plaintiff has appealed.

Respondents' land, with a frontage of 455 feet on the east bank of the Puyallup river, consists of a little less than 9 acres. Its north line abuts on the interurban electric railway track, which crosses the Puyallup river near respondents' northwest corner. The appellant is condemning a right of way for its tide-water line, which crosses the nine-acre tract from southeast to northwest. dividing it into two parts, but does not cross the river. It is also condemning a right of way over the south side of respondents' land for its city line, which crosses the river from east to west. Appellant filed and served on respondents profiles of its proposed stationary bridge across the Puyallup river, together with a certificate of its approval by

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the proper United States authorities. bridge will not touch respondents' land or water front. The appellant is appropriating 2.35 acres, leaving 3.25 acres fronting the Puyallup river, and 3.21 acres separated from the river by appellant's tide-water line. Respondents' land is located a considerable distance inland from Puget Sound. Appellant's city line of railway will be constructed on an embankment from 25 to 27 feet in height, and its tide-water line on an embankment about 5 feet in height above the surface of respondents' land. The appellant, by stipulation on file, has agreed to construct and forever maintain a suitable crossing between respondents' two remaining tracts over appellant's tide-water line wherever respondents desire, and also such culverts and drains as may be necessary to afford the land as good drainage as it has by nature.

The respondents introduced one Nicholson, a civil engineer, who, over appellant's objections, was permitted to testify that if the Puyallup river should hereafter be made navigable for large vessels, and the United States government should require appellant to construct a drawbridge across the river on its city line, such drawbridge, when opened for the passage of vessels, would obstruct respondents' water front to the extent of about 76 feet. The purpose of this evidence was to show that such obstruction would interfere with steamships and other vessels that might come from Puget Sound and stop at respondents' water front. At present the river has but little depth. It is not shown that any vessels larger than steam tugs have ever passed the interurban bridge. The possibility of the river being dredged to respondents' land by the United States government is very remote. There is no certainty that the government will ever require a drawbridge near respondents' land. If it should do so, respondents can, in another action, then recover such damages as they may sustain by reason thereof. The appellant is not seeking to condemn or interfere with any of respondents' shore rights. The United States government has authorized a stationary bridge which does not touch their land. No other bridge may ever be required. This evidence was calculated to mislead the jury into awarding damages which the respondents were not entitled to recover, and its admission was therefore erroneous.

One Baker, who owns three or four acres of similar land near that of respondents. was, over appellant's objection, permitted to testify that he held the same at $15,000 per acre. This evidence, admitted on direct examination, was improper and constituted error, not being a correct test of value. owner might not be willing to sell at any price, and might, therefore, place an excessive value on his own property. The issue before the jury was the fair market value of the land taken, and not what some owner

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might arbitrarily ask for similar land held by him.

The respondents introduced the deposition of one Stokes, a resident of Portland, Or., and manager of a large sawmill and manufacturing plant at Bucoda, Wash. This witness was not shown to be an expert on values, nor was he familiar by acquaintance and experience with lands in or near the city of Tacoma. He testified that, on a trip to Tacoma, he looked for a site for a large lumber mill and manufacturing plant where he could be near tide water with the advantages of navigation; that he investigated the respondents' nine-acre tract; that he priced some land on the Sound, near Old Town in Tacoma, several miles distant; that he regarded respondents' land as especially valuable for a large mill if the entire nine acres could be used in one tract without any railroad crossing it; that he examined the land after this condemnation proceeding had been commenced, when it was known that it would be divided into two tracts by appellant's tide-water line; and that the respondent Alexander wanted to know if he could use the tract as it would be thus divided. He was about to state a conditional offer he then made to Alexander, when appellant objected, but, its objection being overruled, the witness stated his offer, which he had made on condition that the land contained something over eight acres, and would not be divided by any line of railroad. Afterwards the appellant interposed a motion to strike this answer. Sustaining this motion the trial judge in part said: "If a man is offered a certain price in good faith by a man who is liable to carry the offer out, that would be the best criterion of the value of property. The Supreme Court of the United States, however, reason that of fers are not evidence of what property will bring, and it seems, in Parke v. City of Seattle, 8 Wash. 78, 35 Pac. 594, that our own Supreme Court has plainly affirmed that doctrine, although in that case the offer sought to be proven was proffered from the mouth of the plaintiff to whom the offer was made, and the man making the offer was not on the witness stand and subject to cross-examination. Yet I think they have very definitely settled the doctrine that that class of testimony is not competent to fix values. I think that the fact might be brought out in another way, and in a way which would avoid the error or the danger that the Supreme Court of the United States and the Supreme Court of this state seem to feel has followed that class of testimony. * * I think that this testimony, or rather, this offer, as proven by this witness, is hypothetical and based on a condition which could not exist, and for that reason, and for the further reason that class of testimony is not a proper way to prove values, this question and this answer may be stricken. I think, however,

that you may ask this witness how much that property is worth, and he may answer what he considers it worth, and I think he might furthermore be permitted to back up his opinion by saying that he would give that for the property. *** But, if this witness is willing to come on the stand and give it as his opinion that the property was worth just what he offered for it, I think that is proper testimony; he can testify what it is worth; * * * and I think he would be permitted to go further and say he is ready to take it at that price. **The question is what is the value, and, if he can testify that the value of the property is just what he offered, I think that would be competent." After further questions and objections, the witness testified, in substance, that the land as an entire tract was worth $87,300, what he had offered for it, but that, divided by appellant's proposed tide-water line of road, it would be of but little value for a manufacturing plant. Counsel for respondents asked the witness whether he stood ready to pay for the land the value he had referred to, viz., $87,300, assuming the acreage was about what he understood it to be, and over appellant's objection he was permitted to answer in the affirmative. This statement shows (1) that, in effect, the witness was permitted to state the conditional offer made by him; (2) that the evidence finally given was the direct result of a voluntary suggestion made by the court in the presence of the witness that he could base his estimate of value upon what he had offered for the land. The offer made by the witness was thus placed before the jury.

The respondents contend (1) that no proper exceptions were taken to this evidence; that appellant's only exceptions were in the deposition, and not renewed in court; (2) that the witness only testified as an expert to his valuation on the land; and (3) that, while an offer for the land may not be shown by evidence of the owner to whom it was made, it may be shown by the person making it, he being subject to cross-examination. The deposition had been taken before the trial judge, who ruled on the objections when made and allowed exceptions. It was not necessary to renew these exceptions at the trial, as it would have been had the deposition been taken before a notary public, or other officer than the judge himself. The witness was not The witness was not shown to be qualified as an expert on land values in or near Tacoma; hence, the substance of his evidence was merely a statement of the offer made by him. Neither the party who makes an offer for land nor the party to whom it is made should, for the purpose of showing value, be permitted to testify to the same upon his examination in chief in an action of this character. In IIine v. Manhattan Railway Company, 132 N. Y. 477, 480, 30 N. E. 985, 15 L. R. A. 591, Mr. Justice Parker, quoting from Keller v. Paine, 34 IIun (N. Y.) 167, said: "But we pass to the

objection that in such a case as we have under consideration offers may not be proven even by the party making them. The General Term of the Fourth Department had the question before it in Keller v. Paine (N. Y.) 34 Hun, 167-177. And, in discussing the question, the court said: 'It has been intimated in some cases that offers are some evidence of value. But it is a class of evidence which it is much safer to reject than to receive. Its value depends upon too many circumstances. If evidence of offers is to be received, it will be important to know whether the offer was made in good faith, by a man of good judgment, acquainted with the value of the article and of suflicient ability to pay; also whether the offer was cash, for credit, in exchange, and whether made with reference to the market value of the article, or to supply a particular need, or to gratify a fancy. Private offers can be multiplied to any extent for the purpose of a cause, and the bad faith in which they were made would be difficult to prove.' The reasons thus assigned in support of the decision made we fully approve." Parke v. Seattle, 8 Wash. 78, 35 Pac. 594; St. Joseph & D. C. R. R. Co. v. Orr, 8 Kan. 419; Sharp v. United States, 191 U. S. 341, 24 Sup. Ct. 114, 48 L. Ed. 211.

The appellant on rebuttal introduced one Hobart, a competent expert in designing and laying out sawmills and manufacturing plants, and offered to show by his testimony that he had designed a lumber mill and manufacturing plant which could be constructed and profitably operated on the two tracts of land left to respondents, and produce from 75,000 to 90,000 feet of lumber a day in 10hour shifts. Upon respondents' objection this evidence was erroneously excluded as not proper rebuttal. The appellant in its principal case had not offered any evidence as to the available character of the land for sawmill and manufacturing purposes, although some incidental remarks on that question were made by its witnesses, principally in response to the cross-examination conducted by respondents' counsel. The appellant had not been advised by any pleading or statement that the respondents would claim the entire tract was particularly valuable for a large sawmill and manufacturing plant, or that. after being divided by appellant's right of way, it would be of little or no value for any such purpose. After respondents had introduced such evidence to show value of the land taken and damage to the land not taken, the appellant should have been permitted to introduce in rebuttal the evidence offered.

Appellant contends that the trial court erred in unnecessary repetitions of its instructions, especially of those favorable to respondents. It contends that such action had a tendency to place undue and particular stress upon such instructions, was prejudicial to appellant, and constituted reversible error. The instructions were frequently and unnecessarily repeated. In view of the new

Much evidence was admitted to show that the entire and undivided tract was especially valuable for an extensive manufacturing plant by reason of its location on the Puyallup river, which, if dredged, deepened, and improved by the United States government, would become navigable for large ocean steamers, and that such vessels could then be taken to the respondents' water front for loading and unloading. Experts on land values took these possibilities into consideration when testifying to the market value of the land taken, and when estimating damage to the land not taken. In arriving at the value of land taken for a public use, its market value may be shown, not merely for the use to which it may in fact be applied, but also with reference to the most available and valuable use to which it may be adapted. The Supreme Court of the United States, in Boom Company v. Patterson, 98 U. S. 403, 408, 25 L. Ed. 206, said: "So many and varied are the circumstances to be taken into account in determining the value of property condemned for public purposes that it is perhaps impossible to formulate a rule to govern its appraisement in all cases. Exceptional circumstances will modify the most carefully guarded rule; but, as a general thing, we should say that the compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future." The words "immediate future," advisedly used, contemplate that the especial use must be valuable, practical, and available within a reasonable time. The Puyallup river is not at present navigable except for rafts, sawlogs, and possibly small tugboats. Steamers cannot reach respondents' property unless the river is dredged between it and Puget Sound. It is not shown that any dredging plan, to any point within two miles of respondents' land, has ever been contemplated or considered. Such an improvement may not be made for many years, or perhaps never, so as to reach respondents' land. Any valuable use of the land, therefore, based upon such navigation, is remote, uncer

stance to be considered either in fixing value of the land taken, or damage to the land not taken. The purpose of assessing damages in an action of this character is to award an owner fair, complete, and adequate compensation for land taken, based upon its actual market value, together with further and ample compensation for damages to land in the same tract not taken. The condemning corporation should not be permitted to appropriate the land for any less sum. On the other hand, it is not intended that owners of property may recover excessive damages based upon fictitious, visionary, or remote contingencies, which may or may not at some indefinite time in the future increase the value of the land. If the Puyallup river was navigable for large vessels at this time, or if it was reasonably certain that it would become so in the immediate future, the anticipated conditions above mentioned and valuations based thereon might become competent for consideration by the jury; but at present such conditions and circumstances, as a basis for valuation, are too remote, speculative, and improbable to warrant evidence of the character above mentioned. Munkwitz v. Chicago, M. & St. P. Ry. Co., 64 Wis. 403, 25 N. W. 438.

The respondents contend that the appellant has not interposed proper exceptions to this evidence. Without passing upon the sufficiency of the exceptions taken, we make the above suggestions in view of the fact that a new trial will be necessary in this cause.

The judgment is reversed, and the cause remanded for a new trial.

HADLEY, C. J., and MOUNT, FULLERTON, RUDKIN, and DUNBAR, JJ., concur.

(47 Wash. 123) WITTLER-CORBIN MACHINERY CO. v. MARTIN et al.

(Supreme Court of Washington. Sept. 7, 1907.) 1. APPEAL-TIME FOR TAKING-MOTION FOR NEW TRIAL.

The time for taking an appeal begins to run from the date of the order denying a motion for new trial, and hence when taken within 90 days after the determination by the court of a motion for new trial, seasonably filed, is in time.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1895.] 2. SALES-CONDITIONAL OF DESCRIPTION.

SALES-SUFFICIENCY

Sess. Laws 1903. p. 6. c. 6, § 1. in amendment of Act 1893. provides that conditional sales of personal property shall be absolute as to purchasers and subsequent creditors in good faith, unless within 10 days after possession taken a memorandum is filed in the county auditor's office of vendee's residence at the date of taking possession. Section 2 provides that the county auditor shall enter the same in a book, etc. Held, that the description of an engine, conditionally sold, in a memorandum filed with the auditor, as "1 30-horse power stationary, side crank, slide valve engine, complete with all fittings, including governor and throttle, band

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4. COSTS PERSON ENTITLED — SEPARATE DEFENSES.

Where, in an action to recover possession of personal property, though both defendants appeared by the same attorney, each answered separately, each was entitled to the statutory attorney's fee.

[Ed. Note. For cases in point, see Cent. Dig. vol. 13, Costs, § 678.]

Appeal from Superior Court. Whatcom County; Jeremiah Neterer, Judge.

Action by the Wittler-Corbin Machinery Company against Felix Martin and another

recover possession of certain personal property. Judgment for defendants, and plaintiff appeals. Reversed, and remanded for a new trial.

Rose & Craven, for appellant. Hardin & Hurlbut, for respondents.

CROW, J. On December 23, 1903, the plaintiff, Wittler-Corbin Machinery Company, a corporation of Seattle, Wash., made to one Earl B. Nims a conditional sale of one 30-horse power, stationary, side crank, slide valve engine, manufactured by L. L. Graves, of Streator, Ill. A written memorandum of the sale, stating its terms and conditions, signed by the vendor and vendee, was on December 31, 1903, filed in the office of the auditor of Whatcom county, the same being the county in which the vendee resided. This contract stipulated that the purchase money should be paid by Nims in installments; that the engine should be located and remain at Lynden, Whatcom county, Wash., where Nims intended to install a shingle mill; that it should not be removed without the consent of the vendor; that time was the essence of the contract; and that title should remain in the vendor until all payments were made. The engine was described as follows: "1 30-horse power stationary side crank slide valve engine, complete with all fittings, including governor and throttle, band wheels, lubricator, oil cups, and all steam connections." It was delivered to Nims on board cars at Getchell, Snohomish county, and shipped to Bellingham, Whatcom county. Nims, on its receipt in January, 1904, installed it in a small mill near Bellingham, instead of Lynden, as agreed. It does not appear that he ever owned or installed any mill at Lynden. Default was made by him in payments of purchase money, and the plaintiff finding the engine in the possession of the defendants Felix Martin and Home Security Savings Bank,

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a corporation, demanded its return, and commenced this action to recover its possession. The defendants the Home Security Savings Bank and Felix Martin answered separately; the former pleading a mortgage executed by Nims, and the latter claiming title by purchase from Nims subject to the mortgage. The defendants each alleged that they had acquired their interests in good faith, without any notice, actual or or constructive, of the plaintiff's title. In reply, the plaintiff denied these allegations, and affirmatively pleaded the conditional sale, the filing of the contract with the county auditor, and constructive notice to the defendants. On trial before a jury, the plaintiff offered the memorandum of conditional sale in evidence, with proof of its filing. this offer the defendants objected, insisting that the description was indefinite and defective, that the location of the property was not correctly stated, and that the memorandum was insufficient to give constructive notice. The trial court reserved its ruling until the plaintiff, by the testimony of its salesman, had shown that the conditional sale was actually made to Nims; that the engine was then in Snohomish county; that Nims was to establish it in a small mill near Lynden; that the plaintiff afterwards found it in defendants' possession near Bellingham; and that it demanded possession, which was refused. Thereupon the trial judge declined to admit in evidence the memorandum of sale or the proof of its filing. No further evidence being offered, a nonsuit was granted upon motion of the defendants, and a judgment of dismissal was entered. The plaintiff has appealed.

The respondents, claiming that oral notice of appeal was given at the time of the granting of the nonsuit, have moved to dismiss the appeal, for the reason that the appeal bond was not filed in time. The nonsuit was granted and judgment entered on September 13, 1905. We cannot ascertain from the record that any oral notice of appeal was then given. On September 14, 1905, within the statutory time, the appellant filed a motion for a new trial, which was not denied until July 16, 1906. The appellant served and filed written notice of appeal, and also filed its appeal bond on October 6, 1906. The seasonable filing and service of a motion for new trial suspends judgment to such an extent that it is not final until the motion is denied. State ex rel. Payson v. Chapman, 35 Wash. 64, 76 Pac. 525; Rice Fisheries Company v. Pacific Realty Co., 35 Wash. 535, 77 Pac. 839. The time for appeal did not commence to run until the denial of the motion on July 16, 1906. The appeal was thereafter properly perfected within statutory time. The motion to dismiss is denied.

The appellant contends that the trial court erred in refusing to admit in evidence the memorandum of conditional sale with proof of its filing with the county auditor. Prior