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(47 Wash. 131)

7. EMINENT DONALY - COMPENSATION — I SE CHICAGO, M. & ST. P. RY. CO. V. ALEX

FOR WHICII COMPENSATION MAY BE OBANDER et al.

TAIXED.

In arriving at the value of land taken for a (Supreme Court of Washington. Sept. 7, 1907.)

public use, its market value may be shown, not

merely for the use to which it may in fact be 1. EMIXEXT DOMAIN_COMPENSATION-IXJURY applied, but also with reference to the most TO PROPERTY NOT TAKEN-REMOTE Losses.

available and valuable use to which it may be In proceedings by a railroad company to

adapted. condemn a right of way, it appeared that de- [Ed. Note.-.For cases in point, see Cent. Dig. fendants' land had a frontage of 4.55 feet on a vol. 18. Eminent Domain, $$ 371--377.] river bank, and was at a considerable distance

8. Sade. inland from Puget Sound, that the river had but little depth, and that large vessels could not

In proceedings by a railroad company to reach defendants' land unless the river was

condemn a right of way, it appeared that dedredged between it and Puget Sound. It did not

fendants' land had a frontage of 45. feet on a appear that any dredging of the river to any

river bank, and was at a considerable distance point within two miles of defendants' land had

inland froin Puget Sound, and that the river ever been contemplated, and it was shown that

had but little depth, and large vessels could not

reach defendants' land unless the river was the possibility of the river being dredged was

dredged between it and Puget Sound. It did very remote, and that there was no (ertainty that the United States government would ever

not appear that any dredging of the river to require a drawbridge near defendants' land, and

any point within two miles of defendants' land that the government had authorized a stationary

had ever been contemplated, and it was shown bridge which did not touch defendants' land.

that the possibility of the river being dredged Held, that the possibility that the river would

was very remote. II cld, that any valuable use be thereafter dredged so as to be navigable for

of the land, based on navigation of the river by

large vessels, was too remote and speculative to large vessels requiring the construction of a drawbridge which when open would obstruct de

be considered either in fixing the value of the

land taken or damage to the land not taken. fendants' water front to the extent of about 76 feet was too remote to constitute an element

[Ed. Yote.-.For rases in point, see (ent. Dig. of damages.

vol. 18, Eminent Domain, $$ 237, 238.] (Ed. Yote.-For cases in noint, see Cent. Dig. vol. 18, Eminent Domain, $$ 237, 238.]

Appeal from Superior Court, Pierce Coun

ty; W. H. Snell, Judge. 2. EVIDENCE ADMISSIBILITY - V'ALCE OF PROPERTY

Condemnation proceedings by the Chicago, In proceedings by a railroad company to

Milwaukee & St. Paul Railway Company of condemn a right of way testimony by one own- Washington against Hubbard F. Alexander ing land near that of defendants as to what he

and others. From the judgment assessing held the same at is inadmissible.

the damages in a certain amount, plaintiff [Ed. Note.-.For cases in point, see Cent. Dig. vol. 20, Evidence, & 267.]

appeals. Reversed and remanded for a new

trial. 3. DEPOSITIONS — EXAMINATION OF WITNESS

ES – OBJECTIONS TO QUESTIOSS — RENEWAL H. S. Griggs, H. H. Field, and Wm. P. AT TRIAL-NECESSITY.

Reynolds, for appellant. Hudson & Holt Where a deposition was taken before the judge who subsequently tried the case, who

and J. M. Ashton, for respondents. ruled on objections then made and allowell exceptions, it was not necessary to renew the ex- CROW, J. Action by the plaintiff. Chiceptions at the trial.

cago, Milwaukee & St. Paul Railway ('om(Ed. Yote.-.For cases in point, see Cent. Dig. vol. 16. Depositions, $ 320).]

Dany, against Hubbard F. Alexander and

others, to condemn land near the city of 4. EVIDENCE ADMISSIBILITY V'ALCE OF PROPERTY.

Tacoma for a right of way. After an order In proceedings by a railroad company to

had been entered adjudging the proposed condemn a right of way, neither a party who use to be public, a jury was impaneled, and has made an offer for the land nor the owner

awarded the defendants $.15,20.5 for the value should be permitted to testify to the same for the purpose of showing value.

of the land taken and damage to the land

! [Ed. Note.-.For cases in point, see Cont. Dig.

not taken. From a judgment assessing damvol. 20, Evidence, $ 267.)

ages in this amount, the plaintiff has ap5. EMIXENT DONAix-JSSESSMENT OF DAJ- pealed. AGES-EVIDENCE--REBUTTAL.

Respondents' land, with a frontage of 455 Where, in proceedings by a railroad com- feet on the east bank of the Puyallup river, pany to condemn a right of way, it was not advised by any pleading that defendants would

consists of a little less than 9 acres. Its make the claim that the tract was particularly

north line abuts on the interurban electric valuable for a large sawmill and manufacturing | railway track, which crosses the Puyallup plant, or that being divided by its right of way

river near respondents' northwest corner.

' it would be of little or no value for that purrose, and did not offer any evidence on that sub

The appellant is conlemning a right of way jerit, evidence in rebuttal that a sawmill ani for its tidle-water line, which crosses the manufacturing plant could be constructed and ninc-are tract from southeast to northwest, profitably operated on the land after being divided by its right of way was erroneously ex

dividing it into two parts, but does not loss cluded as improper rebuttal.

the river. It is also condemning a right of 6. TRIAL-INSTRUCTIONS-USYECESSARY REP- way over the south side of respondents' loni ETITION.

for its city line, which crosses the river Instructions should not be unnecessarily re

from east to west. Appellant filed and serypeated, thereby placing undur stress upon them before the jury.

ed on respondents profiles of its proposer [Ed. Note...For cases in point, see Cent. Dig.

stationary bridge across the Puyallup river, vol. 40, Trial, $ 5.13.]

together with a certificate of its approval by

the proper United States authorities. This 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 ernbankment from 25 to 27 feet in height, and its tide-water line on an embankment about 5 feet in height above the sursace 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 appellaınt's tide-water line whererer 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, orer 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 70 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 gorerninent 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. An 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

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. IIe 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 inill 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 bad been commencel, 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 il conditional offer he then made to Alexander, when appellant objected, but, its objection being overruled, the witness stated his offer, which he bad 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 offers 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 affirmell 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 bas 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,

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that you may ask this witness how much objection that in such a case as we have unthat property is worth, and he may answer der consideration offers may not be proven what he considers it worth, and I think he even by the party making them. The Genmight furthermore be permitted to back up eral Term of the Fourth Department had the his opinion by saying that he would give that question before it in Keller v. Paine (N. Y.) for the property. * * * But, if this wit- 34 Hun, 167–177. And, in discussing the ness is willing to come on the stand and give question, the court said: 'It has been intiit as his opinion that the property was worth mated in some cases that offers are some evijust what he offered for it, I think that is dence of value. But it is a class of evidence proper testimony; he can testify what it is which it is much safer to reject than to reworth; * * * and I think he would be ceive. Its value depends upon too many cirpermitted to go further and say he is ready cumstances. If evidence of offers is to be reto take it at that price.

* * The ques- ceived, it will be important to know whether tion is what is the value, and, if he can tes- the offer was made in good faith, by a man tify that the value of the property is just of good judgment, acquainted with the value what he offered, I think that would be com- of the article and of suflicient ability to pily; petent.” After further questions and objec- also whether the offer was cash, for credit, tions, the witness testified, in substance, that in exchange, and whether made with referthe land as an entire tract was worth $87,300, ence to the market value of the article, or what he had offered for it, but that, divided to supply a particular need, or to gratify a by appellant's proposed tide-water line of fancy. Private offers can be multiplied to road, it would be of but little value for a any extent for the purpose of a cause, and manufacturing plant. Counsel for respond- the bad faith in which they were made would ents asked the witness whether he stood be difficult to prove. The reasons thus asready to pay for the land the value he had signed in support of the decision made we referred to, viz., $87,300, assuming the acre- fully approve." Parke v. Seattle, 8 Wash. age was about what he understood it to be, 78, 33 Pac. 591; St. Joseph & D. C. R. R. Co. and over appellant's objection he was per- v. Orr, 8 Kan. 419; Sharp v. United States, mitted to answer in the affirmative. This 191 U. S. 341, 21 Sup. Ct. 114, 48 L. Ed. 211. statement shows (1) that, in effect, the wit- The appellant on rebuttal introduced one ness was permitted to state the conditional Hobart, a competent expert in designing and offer made by him; (2) that the evidence laying out sawmills and manufacturing finally given was the direct result of a volun- plants, and offered to show by his testimony tary suggestion made by the court in the that he had designed a lumber mill and manpresence of the witness that he could base ufacturing plant which could be constructed his estimate of value upon what he had of- and profitably operated on the two tracts of fered for the land. The offer made by the land left to respondents, and produce from witness was thus placed before the jury.

75,000 to 90,000 feet of lumber a day in 10The respondents contend (1) that no proper

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hour shifts. Upon respondents' objection this exceptions were taken to this evidence; that evidence was erroneously excluded as not appellant's only exceptions were in the depo- proper rebuttal. The appellant in its princisition, and not renewed in court; (2) that the pal case had not offered any evidence as to witness only testified as an expert to his val

the available character of the land for sawuation on the land; and (3) that, while an mill and manufacturing purposes, although offer for the land may not be shown by evi

some incidental remarks on that question dence of the owner to whom it was made, it

were made by its witnesses, principally in remay be shown by the person making it, he sponse to the cross-examination conducted by being subject to cross-examination. The der- | respondents' counsel. The appellant had not osition had been taken before the trial judge, been advised by any pleading or statement who ruled on the objections when made and that the respondents would claim the entire allowed exceptions. It was not necessary to tract was particularly valuable for a large renew these exceptions at the trial, as it

sawmill and manufacturing plant, or that, would have been had the deposition been tak- after being divided by appellant's right of en before a notary public, or other officer way, it would be of little or no value for any than the judge himself. The witness was not such purpose.

such purpose. After respondents had introshown to be qualified as an expert on land duced such evidence to show value of the values in or near Tacoma ; hence, the sub- | land taken and damage to the land not taken, stance of his evidence was merely a state- the appellant should have been permitted to ment of the offer made by him. Neither the introduce in rebuttal the evidence offered. party who makes an offer for land nor the Appellant contends that the trial court party to whom it is made shouldl, for the pur- erred in unnecessary repetitions of its inpose of showing value, be permitted to testify structions, especially of those favorable to reto the same upon his examination in chief in spondents. It contends that such action had an action of this character. In Iline v. Man- a tendency to place undue and particular hattan Railway Company, 132 N. Y. 477, 480, stress upon such instructions, was prejudi30. X. E. 98.). 15 L. R. A. 5.01, Mr. Justice cial to appellant, and constituted reversible Parker, quoting from Keller v. Paine, 34 error. The instructions were frequently and Iluu (X, Y.) 167, said: “But we pass to the unnecessarily repeated. In view of the new

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trial to be granted herein, we will state that | tain, speculative, and an unreasonable circumsuch a course should be avoided by trial stance to be considered either in fixing value judges. In Meachem v. Hahn & Co., 46 Ill. of the land taken, or damage to the land not App. 144, 149, the court, commenting on re- taken. The purpose of assessing damages in peated instructions, well said: "Counsel may an action of this character is to award an select the strong and salient points appearing, owner fair, complete, and adequate compenand seek in the argument to direct the sation for land taken, based upon its actual thought of the jury to them as being the im- market value, together with further and amportant and controlling features of the case, ple compensation for damages to land in the but the instructions of the court should not same tract not taken. The condemning corbe made the medium for conveying such poration should not be permitted to approviews to the jury.” Although a judgment priate the land for any less sum. On the might not in every instance be reversed for other hand, it is not intended that owners of such unnecessary repetitions, it might in fur- property may recover excessive damages bastherance of justice sometimes become neces- ed upon fictitious, visionary, or remote consary to grant a reversal. 1 Blashfield on In- tingencies, which may or may not at some instructions to Juries, $ 108; 2 Current Law, definite time in the future increase the value 470.

of the land. If the Puyallup river was naviMuch evidence was admitted to show that gable for large vessels at this time, or if it the entire and undivided tract was especially was reasonably certain that it would become valuable for an extensive manufacturing plant so in the immediate future, the anticipated by reason of its location on the Puyallup ris- conditions above mentioned and valuations er, which, if dredged, deepened, and improved based thereon might become competent for by the United States government, would be- consideration by the jury; but at present come navigable for large ocean steamers, and such conditions and circumstances, as a basis that such vessels could then be taken to the for valuation, are too remote, speculative, respondents' water front for loading and un- and improbable to warrant evidence of the loading. Experts on land values took these character above mentioned. Munkwitz

1. possibilities into consideration when testify- Chicago, M. & St. P. Ry. Co., 61 Wis. 403, 25 ing to the market value of the land taken, N. W. 438. and when estimating damage to the land not The respondents contend that the appellant taken. In arriving at the value of land tak- has not interposed proper exceptions to this en for a public use, its market value may be evidence. Without passing upon the suffishown, not merely for the use to which it ciency of the exceptions taken, we make the may in fact be applied, but also with refer- above suggestions in view of the fact that a ence to the most available and valuable use new trial will be necessary in this cause. to which it may be adapted. The Supreme The judgment is reversed, and the cause reCourt of the United States, in Boom Compa- | manded for a new trial. ny v. Patterson, 98 U. S. 403, 408, 25 L. Ed. 206, said: “So many and varied are the cir- HADLEY, C. J., and MOUNT, FULLERcumstances to be taken into account in deter- | TON, RUDKIN, and DUNBAR, JJ., concur. mining the value of property condemned for public purposes that it is perhaps impossible to formulate a rule to govern its appraise

(47 Wash. 123) ment in all cases. Exceptional circumstan- WITTLER-CORBIN MACHINERY CO. v. ces will modify the most carefully guarded

MARTIN et al. rule; but, as a general thing, we should say (Supreme Court of Washington. Sept. 7, 1907.) that the compensation to the owner is to be 1. APPEAL-TIME FOR TAKING-MOTION FOR estimated by reference to the uses for which NEW TRIAL. the property is suitable, having regard to the

The time for taking an appeal begins to existing business or wants of the community,

run from the date of the order denying a mo

tion for new trial, and hence when taken within or such as may be reasonably expected in the 90 days after the determination by the court of immediate future.” The words “immediate a motion for new trial, seasonably filed, is in future," advisedly used, contemplate that the

time, especial use must be valuable, practical, and

(Ed. Note.-For cases in point, see Cent. Dig.

vol. 2, Appeal and Error, $ 1895.) available within a reasonable time. The Puy

2. SALES-CONDITIONAL SALES-SUFFICIENCY allup river is not at present navigable except

OF DESCRIPTION. for rafts, sawlogs, and possibly small tug- Sess. Laws 1903, p. 6. c. 6, § 1. in amendboats. Steamers cannot reach respondents'

ment of Act 1893, provides that conditional sales property unless the river is dredged between

of personal property shall be absolute as to pur

chasers and subsequent creditors in good faith, it and Puget Sound. It is not shown that any unless within 10 days after possession taken a dredging plan, to any point within two miles memorandum is filed in the county auditor's of of respondents' land, has ever been contein

fice of vendee's residence at the date of taking

possession. Section 2 provides that the county plated or considered. Such an improvement

auditor shall enter the same in a book, etc. may not be made for many years, or per- Held, that the description of an engine, condihaps never, so as to reach respondents' land.

tionally sold, in a memorandum filed with the Any valuable use of the land, therefore,

auditor, as "1 30-horse power stationary, side

crank, slide valve engine, complete with all fitbased upon such navigation, is remote, uncer- tings, including governor and throttle, band wheels, lubricator, oil cups, and all steam con- a corporation, demanded its return, and nections," was sufficient to give constructive

commenced this action to recover its possesnotice of vendor's title.

sion.

The defendants the Home Security 3. SAME — REMEDIES OF SELLER BURDEN OF l'roor.

Savings Bank and Felix Martin answered In an action by a vendor to recover posses- separately; the former pleading a mortgage sion of property conditionally sold, a memoran- executed by Nims, and the latter claiming duin of such sale having been filed in the auditor's office, as required by Sess. Laws 1903, p. 6,

title by purchase from Vims suljert to the c. 6, § 1, in amendment of Act 1893, the burden mortgage. The defendants each alleged that is on one claiming to be a bona fide purchaser they had acquired their interests in good from the conditional vendee or an incumbrancer faith, without any notice, actual or (onto establish the same.

structive, of the plaintiff's title. In reply, 4. COSTS - PERSON ENTITLED - SEPARATE DE

— FENSES.

the plaintiff denied these allegations, and Where, in an action to recover possession affirmatively pleadeil the conditional Sale, of personal property, though both defendants ap

the filing of the contract with the county aupeared by the same attorney, each answered separately, each was entitled to the statutory at

ditor, and constructive notice to the defendtorney's fee.

ants. On trial before a jury, the plaintiff [Ed. Note. For cases in point, see Cent. Dig. offered the memorandum of conditional sale vol. 13, Costs, $ 678.]

in evidence, with proof of its filing. To

this offer the defendants objecte, insisting Appeal from Superior Court. Whatcom

that the description was indefinite and deCounty; Jeremiah Keterer, Judge.

fective, that the location of the property Action by the Wittler-Corbin Machinery

was not correctly stated, and that the inemCompany against Felix Martin and another

orandum was insufficient to give constructive to recover possession of certain personal

notice. The trial court reserved its ruling property. Judgment for defendants, and plaintiff appeals. Reversed, and remanded

until the plaintiff, by the testimony of its

salesman, had shown that the conditional for a new trial.

sale was actually made to Sims; that the Rose & Craven, for appellant. Hardin &

engine was then in Snohomish county; that Hurlbut, for respondents.

Nims was to establish it in a small mill

near Lynden; that the plaintiff afterwards CROW, J. On December 23, 1903, the found it in defendants' possession near Bellplaintiff, Wittler-Corbin Machinery Com- ingham; and that it demanded possession, pany, a corporation of Seattle, Wash., made which was refused. Thereupon the trial to one Earl B. Nims a conditional sale of judge declined to admit in evidence the memone 30-horse power, stationary, side crank, orandum of sale or the proof of its filing. slide valve engine, manufactured by L. L. No further evidence being offered, a nonsuit Graves, of Streator, Ill. A written memoran- was granted upon motion of the defendants, dum of the sale, stating its terms and con- and a judgment of dismissal was entered. ditions, signed by the vendor and vendee, The plaintiff has appealed. was on December 31, 1903, filed in the of- The respondents, claiming that oral notire fice of the auditor of Whatcom county, the of appeal was given at the time of the grantsame being the county in which the vendee ing of the nonsuit, have moved to dismiss resided. This contract stipulated that the the appeal, for the reason that the appeal purchase money should be paid by Nims in bond was not filed in time. The nonsuit was installments; that the engine should be lo- granted and judgment entered on Septemcated and remain at Lynden, Whatcom coun- ber 13, 1905. We cannot ascertain from the ty, Wash., where Nims intended to install record that any oral notice of appeal was a shingle mill; that it should not be re- then given. On September 14, 1905, within moved without the consent of the vendor; the statutory time, the appellant filed a mothat time was the essence of the contract; tion for a new trial, which was not denied and that title should remain in the vendor until July 16, 1906. The appellant served until all payments were made. The engine and filed written notice of appeal, and also was described as follows: "1 30-horse pow- filed its appeal bond on October 6, 1906. The er stationary side crank slide valve engine, seasonable filing and service of a motion for complete with all fittings, including governor new trial suspends judgment to such an exand throttle, band wheels, lubricator, oil tent that it is not final until the motion is cups, and all steam connections."

It was

denied. State ex rel. Payson v. Chapman, 35 delivered to Nins on board cars at Getchell, Wash. 64, 76 Pac. 525; Rice Fisheries ComSnohomish county, and shipped to Belling- pany v. Pacific Realty Co., 35 Wash. 535, 77 ham, Whatcom county. Nims, on its receipt Pac. 839. The time for appeal did not comin January, 1904, installed it in a small mill i mence to run until the denial of the motion near Bellingham, instead of Lynden, on July 16, 1906. The appeal was thereafter agreed. It does not appear that he ever properly perfected within statutory time. owned or installed any mill at Lynden. De- The motion to dismiss is denied. fault was made by him in payments of pur- The appellant contends that the trial court chase money, and the plaintiff finding the en- erred in refusing to admit in evidence the gine in the possession of the defendants Fe- memorandum of conditional sale with proof lix Martin and Home Security Savings Bank, of its filing with the county auditor. Prior

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