Ct. 1909). GRAYS HARBOR BOOM COMPANY, Appellant,
vs.
J. P. O. LOWNSDALE et al., Respondents
No. 7919
SUPREME COURT OF WASHINGTON
54 Wash. 83, 102 P. 1041
July 10, 1909
Appeal from a judgment of the superior court for Chehalis
county, Linn, J., entered October 26, 1908, upon the verdict of a
jury rendered in favor of the defendant, awarding damages in
condemnation proceedings.
APPEAL -- RECORD -- STATEMENT OF FACTS -- CERTIFICATE BY
SUCCESSOR ON DEATH OF TRIAL JUDGE. Bal. Code, § 5061, authorizes
the settlement of a statement of facts, after the death of the
judge who tried the case, by his successor in office; and if the
judgment was rendered by a visiting judge in another county than
that of his residence, his successor in office may certify the
statement of facts while presiding as a visiting judge in such
county.
EMINENT DOMAIN -- DAMAGES -- WATER COURSES -- RIPARIAN RIGHTS --
VALUE OF SHORE AS BOOM SITE. In condemnation proceedings by a
boom company to condemn riparian rights of owners on the bank of
a stream in which the tide ebbs and flows, the owners are not
entitled to have the damages assessed with reference to the value
of the property as a boom site; since the right to maintain a
boom is not appurtenant to the uplands, the tide lands belong to
the state, and the boom site may be granted by the state without
reference to riparian ownership (RUDKIN, C.J., DUNBAR, and GOSE,
JJ., dissenting).
EMINENT DOMAIN -- TRIAL -- DAMAGES. A verdict on the question of
damages in a condemnation proceeding is not conclusive as to the
amount of damages, if there was error in injecting into the case
an improper element of damages.
APPEAL -- REVIEW -- EVIDENCE -- ERROR NOT CURED BY INSTRUCTIONS.
In condemnation proceedings, error in receiving evidence of an
improper element of damages and refusing, in the presence of the
jury, to strike out such incompetent evidence, which indirectly
affected the verdict, is not cured by instructions to the jury
that they should not consider that element in estimating the
damages.
NAVIGABLE WATERS -- LANDS UNDER WATER -- RIGHTS OF STATE. Under
Const., art. 17, § 1, the state owns the beds and shores of all
navigable waters up to the line of ordinary high tide.
RIPARIAN RIGHTS -- TIDE LANDS -- EMINENT DOMAIN -- DAMAGES. In
condemnation proceedings of lands and shore rights for a boom
site, a riparian owner is not entitled to damages for the
probable value of his land for a mill site or for commercial
purposes depending in any degree on the use of the tide lands
embraced in the boom site.
EMINENT DOMAIN -- DAMAGES -- PROBABLE VALUE OF SHORE LANDS. To
recover, in condemnation of shore lands, for the contemplated use
of the lands as a mill site, the use must be shown to be
available, and that means a possible use not dependent on the
abandonment of the use of adjoining lands of another, or upon
remote, uncertain or speculative contingencies.
EMINENT DOMAIN -- DAMAGES -- EVIDENCE OF VALUE -- MEASURE. In
determining the damages in condemnation proceedings, evidence of
the price paid for the land more than fifteen years ago is
inadmissible; the present value and the diminution by reason of
the proposed appropriation being the true basis.
EMINENT DOMAIN -- SHORE LANDS -- DAMAGE BY LAWFUL MAINTENANCE OF
BOOM. In condemnation for a boom site, the owners are entitled to
compensation for the land taken and added inconveniences in
getting to the navigable channel, and for damages by reason of
erosions necessarily caused by the proper and lawful maintenance
of the boom, and the changed use of the stream.
EMINENT DOMAIN -- PREPAYMENT OF DAMAGES -- APPEAL -- COSTS
AGAINST LANDOWNER. Under the constitutional provision prohibiting
the taking of private property without just compensation being
first made or paid into court, costs of an appeal, successfully
prosecuted by the petitioner from an award of damages, cannot be
taxed against the landowner, on remanding the case for a retrial
to determine the proper damages; since the petitioner must pay
all costs of the proceedings to ascertain the damages.
COURTS -- RULE OF DECISION -- FEDERAL QUESTION. The right of the
owner of uplands, condemned for a boom site, to claim damages by
reason of the value of his property as a boom site, does not
raise any Federal question, where the state and not the abutter
owned the tide lands condemned for the site.
J. B. Bridges and Ben Sheeks, for appellant.
J. C. Cross and Thos. Vance (A. Emerson Cross. of counsel), for
respondents.
En Banc. CHADWICK, J. FULLERTON, MORRIS, PARKER, MOUNT, and CROW,
JJ., concur. CHADWICK
{*84} This case was tried in the superior court for Chehalis
county by the late Judge Linn. Judge Linn was at the time the
judge elected and presiding in Thurston {*85} county. He
overruled the motion for a new trial, and an appeal was taken,
but before the statement of facts was ready for settlement, he
died. Attempting to comply with the statute, the Honorable Mason
Irwin, presiding judge for Chehalis county, called Honorable John
R. Mitchell, who had been appointed and had qualified as Judge
Linn's successor, to settle the statement of facts. Bal. Code, §
5061 (P.C. § 678), reads as follows:
"If the judge before whom the cause was pending or tried shall
from any cause have ceased to be such judge he shall,
notwithstanding, settle and certify, as the late judge, any bill
of exceptions or statement of facts that it would be proper for
him to settle and certify if he were still such judge, and such
acts on his part shall have the same effect as if he were still
in office; and he may be compelled by mandate so to do, as if
still in office. If such judge shall die or remove from the state
while in office or afterwards, within the time within which a
bill of exceptions or statement of facts, in a cause that was
pending or tried before him, might be settled and certified under
the provisions of this chapter, and before having certified such
bill or statement, such bill or statement may be settled by
stipulation of the parties with the same effect as if duly
settled and certified by such judge while still in office. But if
the parties cannot agree, and if such judge, when removed from
the state, does not attend within the state and settle and
certify a bill of exceptions or statement of facts in case one
has been duly proposed, his successor in office shall settle and
certify such bill or statement in the manner in this chapter
provided, and in so doing he shall be guided, so far as
practicable, by the minutes taken by his predecessor in office,
or by the stenographer, if one was in attendance on the court or
judge, and may, in order to determine any disputed matter not
sufficiently appearing upon such minutes, examine under oath the
attorneys in the cause who were present at the trial or hearing,
or any of them."
We are asked to hold, (1) that the statute makes no provision for
the certification of the facts occurring upon the trial, by a
successor of the trial judge who may have died, and (2) that if a
successor can so act, it was the duty of the {*86} judge
presiding in Chehalis county to perform that function. The only
reference to the probable death of a trial judge in the statute
is found in the words "if such judge shall die or remove from the
state." The succeeding parts of the statute are drawn on the
theory of removal from the state, and under a technical
construction, it might be held that there was an omission
affecting appellant's right of appeal. We think, however, that
the clear intent of the statute is to cover any case, whether it
be occasioned by death, disability, or removal from the state. To
hold otherwise would deny a substantial right, if not a
constitutional guaranty. The second point is also without merit.
It is insisted that judges have successors, but courts are legal
creations. Counsel says:
"When the case was tried it was tried by the judge of the
superior court of Washington for Chehalis county, and while the
personnel or judge of the court before whom the case was tried
was a visiting judge, the successor in office of that visiting
judge is not the one contemplated by the statute to settle and
certify the statement of facts."
This argument furnishes its own answer. If it be sound, Judge
Mitchell while settling the statement of facts was as much the
judge of the superior court of Chehalis county where he was
presiding as was Judge Linn who tried the case, or as is Judge
Irwin, and was therefore a proper judge to certify the statement
of facts. The motion to dismiss the appeal is denied.
This is a proceeding brought by the Grays Harbor Boom Company to
condemn certain lands lying adjacent to its boom grounds, a tidal
slough known as "Jessie" slough, and a way along it for the
convenience of its employees, and the shore rights of
respondents, all of which it alleges are necessary to the
prosecution of its enterprise as a public boom company. The
petitioner is a boom company organized under the laws of the
state of Washington, and for a number of years last past has
operated a boom on the Humptulips river. There have been a number
of cases decided in {*87} this court involving the rights of the
respective parties. In May, 1906, the company was enjoined by the
superior court for Chehalis county from further use of its boom
grounds to the injury of the banks and shores of respondents'
lands. This case was affirmed on appeal. Lownsdale v. Grays
Harbor Boom Co., 44 Wash. 699, 87 P. 943. The decision was later
modified so as to permit appellant to institute condemnation
proceedings. This it did. In State ex rel. Burrows v. Superior
Court, 48 Wash. 277, 93 P. 423, the question of necessity and the
extent of appellant's right under its power of eminent domain was
settled by this court, and the case sent back for trial on the
question of damages. From an award in favor of respondents, the
petitioner has appealed.
Numerous errors are assigned. All those which we regard as
material go to the theory of damages entertained by respondents,
and upon which the court permitted the evidence to go to the
jury. The evidence of the respective parties varied in a wide
degree. Respondents' witnesses fix the amount of the damages in
sums running from $ 25,000 to $ 60,000, while the petitioner's
witnesses fixed the value of respondents' lands in sums not
exceeding $ 2,000. It is insisted by respondents that we should
not inquire into the question of damages, or grant a new trial
because the verdict was excessive. To sustain this contention,
they cite the opinion of Judge Hanford in the case of United
States v. Freeman, 113 Fed. 370, wherein he said, upon the
authority of Seattle & Montana R. Co. v. O'Meara, 4 Wash. 17, 29
P. 835; Tacoma v. State, 4 Wash. 64, 29 P. 847; Long v. Billings,
7 Wash. 267, 34 P. 936; and Western American Co. v. St. Ann Co.,
22 Wash. 158, 60 P. 158, that:
"I adhere to the ruling made by this court in the case of U.S. v.
Tennant (D.C.) 93 Fed. 613, to the effect that in condemnation
cases in this state the law does not authorize the court of
original jurisdiction to set aside the verdict of a jury on the
ground that the appraisement was erroneous or unfair. Upon a
re-examination of the question I am confirmed {*88} in the
opinion that the statutes of this state as expounded by its
supreme court prescribe a special and peculiar mode of procedure
distinct from the practice in civil actions. Therefore the
provisions of the civil practice act authorizing courts in which
actions are tried to set aside verdicts for error in assessment
of damages are not applicable, and do not authorize the same
courts to grant new trials in condemnation cases."
Without discussing the justice or propriety of that decision or
the cases upon which it rests, the record indicates to us that it
should not be applied here. Admitting that the rule is well
founded, the cases do not hold that a verdict concludes the law
of the case. Although if a case be tried without error a court
should be reluctant to grant a new trial because of excessive
damages, when an improper element of damages is injected into the
case, it becomes the duty of the court to set aside the verdict.
Petitioner was entitled to have the question of damages submitted
on a proper measure. This the court did not do. Without quoting
from the evidence, it is enough to say that the witnesses on
behalf of respondents base their estimate of damages, in part at
least, upon the value of the property as a boom site, or in
consideration of its adaptability for a mill site or for
commercial purposes. A motion was made to strike this testimony,
and it was overruled by the court. The court did, however,
instruct the jury as follows:
"In estimating the value or damage you must not take into
consideration the special value to the company, by reason of its
necessity, but the market value. Nor should you take into
consideration, the value of defendant's property as a boom site."
"The waters of the Humptulips river and Jessie Slough in front of
defendant's lands, are navigable waters, within the meaning of
the law, and defendant, by reason of the ownership of the lands
abutting on said river and slough, would have no proprietary
rights in any boom site furnished by the channels of said waters,
and would not be entitled to have the values of such boom site
considered in estimating the value {*89} of his lands, as his
proprietary interest does not come below the line of ordinary
high tide."
These instructions correctly stated the law. The right of
maintaining booms in a navigable tidal stream of the state is not
a right incident or appurtenant to the uplands. Tide lands
belonging primarily to the state, and subject to the rights of
navigation to be determined by the secretary of war, may be
granted or sold by the state without reference to any assertion
of riparian ownership in the land conveyed. This boom site having
been granted by the state, the loss of its use cannot be
considered as an element of damages in a suit to condemn the
rights and privileges appurtenant to the shore line. Hence, the
rule applicable to the condemnation of land along nontidal
streams is not pertinent, and the testimony should have been
stricken by the court. The record indicates that the amount
returned could not have been found by the jury without
considering the objectionable testimony. A trial upon one theory
and instructions of the court founded upon an entirely different
theory present a most unusual situation, and under the
circumstances of this particular case we are unable to say that
the error of the court was cured by his instruction. The court
had refused, in the presence of the jury, to strike out the
incompetent testimony, and the jury might have been, and probably
was, misled as to its effect. It was the duty of the court to try
the case upon, as well as instruct, the law of the case. It was
his duty to take away from the jury all of the testimony
predicated upon the value of the property as a boom site, by
specially calling their attention to his errors occurring on the
trial; or when a verdict was rendered showing that the jury must
have considered a wrong measure of damages, he should have
granted a new trial. We have not overlooked the fact that some of
the witnesses spoke of the property as valuable for commercial
purposes or for a mill site. But this will not cure the error of
the court. Respondents have all the rights in their lands that
they ever had, and whatever they may be, they are {*90}
subordinate to and subject to the rights of the grantee of the
state to maintain boom grounds in front of them. If, therefore,
the probable value of the land for a mill site or for commercial
purposes depends in any degree on the use of the tide lands now
embraced in the boom site, it could not be considered a proper
element of damages.
The trial court seems to have proceeded upon the theory that the
general rights incident to riparian ownership along navigable
streams apply in this case. Respondents cite a number of cases to
sustain this theory, but all of them seem to turn on the theory
that the owner of the land had title, not only to the upland but
the land under the water, a condition which is not here present,
and cannot be from the very nature of the case. The state has
asserted title to the lands over which the tide ebbs and flows,
and respondents' title carries them no further than the line of
ordinary high tide. It would be useless, then, to review the
authorities relied upon by respondents. The rule pertaining to
the rights incident to ownership of lands along tidal streams
over which the state had or might assert its ownership, was
before the court in the early case of Eisenbach v. Hatfield, 2
Wash. 236, 26 P. 539, 12 L.R.A. 632. A careful review of the
authorities impelled this conclusion:
"The result of our investigation of the authorities leads us to
the conclusion that riparian proprietors on the shore of the
navigable waters of the state have no special or peculiar rights
therein as an incident to their estate. To hold otherwise would
be to deny the power of the state to deal with its own property
as it may deem best for the public good. If the state cannot
exercise its constitutional right to erect wharves and other
structures upon its public waters in aid of navigation without
the consent of adjoining owners, it is obviously deficient in the
powers of self-development, which every government is supposed to
possess -- a proposition to which we cannot assent. See Galveston
v. Menard, 23 Tex. 349. Nor do we think this view in any way
conflicts with the constitution of the state, but, on the
contrary, we believe it is in strict harmony with it, when all
its parts are construed {*91} together. We cannot think that the
building by the state or its grantees of wharves upon shores of
navigable waters would constitute either a taking or damaging of
private property for public use, in contemplation of the
constitution."
We are asked to distinguish this case in favor of respondents,
upon the theory that the Humptulips river is a navigable stream,
and not a bay, inlet, or arm of the sea. The right of the state
is not to be measured by the name or character of the waters, but
by the physical condition. Does the tide ebb and flow in the
stream under discussion? If so, the constitution, § 1, art. 17,
expressly asserts title "to the beds and shores of all navigable
waters in the state, up to and including the line of ordinary
high tide, in the waters where the tide ebbs and flows, and up to
and including the line of ordinary high water within the banks of
all navigable rivers and lakes." While the doctrine of the
Eisenbach case has been at times overlooked by this court, thus
permitting an element of confusion to arise in our decisions, it
is so clearly sustained by reason and authority, and so securely
rests upon the constitutional provision just cited, that we
consider it controlling in all cases of this character. In the
recent cases of Muir v. Johnson, 49 Wash. 66, 94 P. 899, and
Brace & Hergert Mill Co. v. State, 49 Wash. 326, 95 P. 278, it is
cited as controlling. In the latter case the decisions of this
court, as well as those of the supreme court of the United
States, are collected, and need no further citation or review.
If this were not true as a matter of law, the testimony upon this
feature of the case is too vague and uncertain to warrant a
verdict. It is not shown that the use of respondents' lands for a
sawmill is contemplated or even probable within any reasonable
time, or that it could be so used independently of the lands
occupied by petitioner. The contemplated use, in proper cases,
must not only be available but valuable. In this connection an
available use means a possible use, not a use contingent upon the
abandonment of the use of adjoining property engaged by another
in the public service of the {*92} state, or upon conditions
remote, uncertain, and speculative. Chicago, Milwaukee etc. R.
Co. v. Alexander, 47 Wash. 131, 91 P. 626.
So far, then, as the element of commercial use becomes a subject
for our review, the lands of respondents are not taken or damaged
in the general sense. Damages, if any, are those resulting to
shore rights, by erosion or flooding, for land actually taken,
and the added inconveniences, if any, to the landowner in getting
to and from the navigable channel reserved by the secretary of
war. They grow out of, as they must in all cases, the nature of
the use to which the stream will be put by appellant. Upon this
theory, the admission of evidence as to the price paid by
respondents in 1891, and accumulated interest on the purchase
price, was immaterial and prejudicial error on the part of the
court. The purchase was not so recent that any presumption of
value at the present time could flow therefrom. 2 Lewis, Eminent
Domain (2d ed.), 444; Denver etc. R. Co. v. Schmitt, 11 Colo. 56,
16 P. 842; Dietrichs v. Lincoln & N.W.R. Co., 12 Neb. 225, 10
N.W. 718; Omaha South R. Co. v. Todd, 39 Neb. 818, 58 N.W. 289;
Lanquist v. Chicago, 200 Ill. 69, 65 N.E. 681. The present value
of the property at the time of the trial, and the consequent
diminution in value by reason of the proposed appropriation, is
the true basis for estimating damages. Grays Harbor & Puget Sound
R. Co. v. Kauppinen, 53 Wash. 238, 101 P. 835.
We are asked to hold that no damages for which the law will
render compensation can result to respondents by reason of such
erosions as are necessarily caused by the proper maintenance and
operation of appellant's boom; this on the theory that the boom
is a lawful structure, and that no consequential damages can
result from its use. A number of cases are cited, none of which
are persuasive. They discuss questions involving the erection of
piers, bridges, or obstructions to navigation under Federal
authority. No land and no right incident to ownership was taken.
In this case respondents {*93} are the owners of the shore line
and the banks of the stream and, while their interests must give
way to the public interest, they are entitled to damages accruing
from the changed use of the stream, even though the proposed use
be a lawful one. Burrows v. Grays Harbor Boom Co., 44 Wash. 630,
87 P. 937; Monroe Mill Co. v. Menzel, 35 Wash. 487, 77 P. 813,
102 Am. St. 905, 70 L.R.A. 272.
The judgment of the lower court is reversed, and a new trial
ordered.
DISPOSITION
Reversed.
DISSENT
RUDKIN, C.J. (dissenting) --
I am of the opinion that the jury had a right to take into
consideration the value of the property for boom purposes under
the decision of the supreme court of the United States in Boom
Co. v. Patterson, 98 U.S. 403, 25 L. Ed. 206; and on the
authority of that case, and for the reasons there stated, I
dissent.
GOSE and DUNBAR, JJ., concur with RUDKIN, C.J.
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