State ex rel. Beecher v. Gilliam, 146 Wash. 6, 262 Pac. 138 (1927).

 6    STATE EX REL. BEECHER v. GILLIAM.
                     Statement of Case.           146 Wash.

      [No. 20771. Department Two. December 2, 1927.]
      THE STATE OF WASHINGTON, on the Relation of H.W.
      Beecher et al., Plaintiffs, v. MITCHELL GILLIAM,
                    as Judge, Respondent.
      In re Taylor Avenue (Denny Hill Regrade No. 2). «1»

[1] NEW TRIAL (3-1, 56-1) - RIGHT TO NEW TRIAL - ORDER GRANTING -
RIGHT TO NEW JURY. Upon granting a new trial, it is error to
resubmit the matter to the same jury.

[2] EMINENT DOMAIN (88) - DEDUCTION OR SET-OFF OF BENEFITS -
BENEFIT TO PROPERTY NOT TAKEN. Rem. Comp. Stat., SS 9229,
providing for assessment of damages and the off-setting of
benefits on condemning land for a street and authorizing the
jury to determine (1) the value of the land taken and (2) the
damages to the part remaining because of its severance over
and above special benefits from the "proposed improvement,"
no lot to be assessed for benefits from "such taking only,"
the "proposed improvement" and the "taking only" refer to the
same thing, viz: that part of the improvement causing the
taking of the property and calls for determination of the
"net" damage therefrom.

[3] SAME (88). Under said section, providing further (3) that the
jury shall determine the "gross" damage to any land not taken
"(other than damages to a remainder by reason of its
severance)," and not deducting any benefits, requires that
the jury determine under subdiv. 2, if there is any damage to
the remainder by reason of severance, and the amount, and if
it exceeds the benefits, they shall enter verdict for such
net damages and ignore any verdict under subdiv. 3; but if
the damage is less than or equal to the benefits, the jury
shall find the gross damages under subdiv. 3, without any
finding of benefits, leaving it subject to assessment by the
commissioners.

Appeal from a judgment of the superior court for
King county, Gilliam, J., entered July 1, 1927, upon
the verdict of a jury rendered in favor of the city of
Seattle in condemnation proceedings; and certiorari
to review an order of the court denying a trial of the
issues before a new jury. Reversed.

«1» Reported in 262 Pac. 138.

           STATE EX REL. BEECHER v. GILLIAM.           7
 Dec. 1927               Opinion Per ASKREN, J.

Kerr, McCord & Ivey and Wm. Z. Kerr, for appellants.

Thomas J.L. Kennedy, J. Ambler Newton, and
Bruce MacDougall, for respondent.

 8    STATE EX REL. BEECHER v. GILLIAM.
                    Opinion Per ASKREN, J.           146 Wash.

                     [graphic goes here]

in which, after setting up all the statutory grounds,
they asked the court to reopen the cause for the purpose
of having the jury make findings as to the amount
of damage by reason of the severance without offsetting
any local or special benefits. This motion was
orally granted, but the written order signed by the
court was as follows:

"This matter coming on for hearing on motion of
defendants H.W. Beecher and wife, the court having
heard argument of counsel, being advised in the
premises,

"IT IS ORDERED that the defendant Beecher's motion
to reopen the case and resubmit the same to same jury
be granted, to which the city excepts and the exception

           STATE EX REL. BEECHER v. GILLIAM.           9
 Dec. 1927              Opinion Per ASKREN, J.

is allowed. Defendant excepts to the order that requires
a retrial before the same jury."

Thereupon the cause was retried in its entirety
before the same jury that heard the matter the first time,
over the protest of the Beechers, but without submitting
to the jury the new issue desired by them. The
jury, having before it the same instructions as at the
first trial, returned a verdict in the same amount, and
this appeal followed.

[1] The first error assigned by appellants is the
refusal of the court to call a new jury to hear the case.
This ground of error is well taken. In explanation
thereof, it appears that the court was of the opinion,
in the beginning, that he was but complying with
appellants' request to reopen the case and submit the
new issue to the same jury. But the record shows
that the court refused to submit the issue and that the
effect of the court's order and action was to grant a
retrial of the cause. It is elementary, of course, that,
if a new trial was granted, it could not be before the
same jury. No citation of authority is required upon
this point.

The other assignments of error have their basis in
appellants' contention that the damage to the lot by
reason of the loss of the Westlake avenue frontage
was not properly covered by the court's instructions,
and the jury should have been instructed on the question
of gross damage.

The statute providing for assessment of damages
and the offsetting of benefits is found in Rem. Comp.
Stat., SS 9229.

"When the ordinance providing for any such
improvement provides that compensation therefor shall
be paid in whole or in part by special assessment upon
property benefited, the jury or court, as the case may
be, shall find separately:

 10    STATE EX REL. BEECHER v. GILLIAM.
                    Opinion Per ASKREN, J.           146 Wash.

"1. The value of land taken at date of trial;

"2. The damages which will accrue to the part
remaining because of its severance from the part taken,
over and above any local or special benefits arising
from the proposed improvement. No lot, block, tract
or parcel of land found by the court or jury to be so
damaged shall be assessed for any benefits arising from
such taking only;

"3. The gross damage to any land or property not
taken (other than damages to a remainder, by reason
of its severance from the part taken), and in computing
such gross damages shall not deduct any benefits from
the proposed improvement. Such finding by the court
or Jury shall leave any lot, block, parcel or tract of
land, or other property subject to assessment for its
proportion of any and all local and special benefits
accruing thereto by reason of said improvement.

"When such ordinance does not provide for any
assessment in whole or in part on property specially
benefited, the compensation found for land or property
taken or damaged shall be ascertained over and
above any local or special benefits from the proposed
improvement.

"Such city or town may offset against any award
of the jury or court for the taking or damaging of any
lot, block, tract or parcel of land or other property,
any general taxes or local assessments unpaid at the
time such award is made. Such offset shall be made
by deducting the amount of such unpaid taxes and
assessments at the time of payment of the judgment or
issuance of a warrant in payment of such judgment."

There is no contention here but what the jury were
correctly instructed as to the value of the property
taken under subd. 1 of SS 9229, and that the verdict of
$9,198 for the land taken and the readjustment of the
buildings was rendered under proper instructions.

The error claimed is that the court refused to
instruct the jury that, if they found under subd. 2 that the
benefits from the improvement exceeded the damages by
reason of the severance, then they should, under subd.

           STATE EX REL. BEECHER v. GILLIAM.           11
 Dec. 1927               Opinion Per ASKREN, J.

3 of SS 9229, assess the gross damages to appellants'
land without offsetting benefits.

To determine this assignment of error requires a
detailed study of the act providing for special findings
in eminent domain proceedings such as this, where the
ordinance provides that the cost of the improvement
shall be borne by the property specially benefited, and
not by general taxation. It will be noticed that, under
subd. 2, the jury are required to assess the damages to
the remainder of the tract by reason of "its severance
from the part taken, over and above the local or
special benefits arising from the proposed improvement."
In other words, the jury find a verdict for
damages only in the event that the damages are greater
than the benefits, and then only in the net sum by
which they exceed the benefits.

[2] The question first arises as to what is meant by
the words in the section, "the proposed improvement."
In the present case, the proposed improvement provided
for the widening of the street in front of appellants'
property as well as other streets in the district,
and the changing of the established grades in the
district and provided for regrading. It might be thought
that the words "the proposed improvement" would
have reference to the improvement as a whole, but the
latter part of the section makes it manifest that these
words have reference only to the benefits which the
property will sustain by reason of the widening of the
street; for it provides that the land remaining and
found to be damaged shall not "be assessed for any
benefits arising from such taking only." It is apparent,
of course, that the words"from such taking
only" refer to that portion of the improvement which
causes the taking of a portion of appellants' property;
and if the jury find in a given case that the property
of any defendant has been damaged in a sum greater

 12    STATE EX REL. BEECHER v. GILLIAM.
                    Opinion Per ASKREN, J.           146 Wash.

than the benefits and a net damage verdict be awarded
to him, the property is not relieved from assessment
by the eminent domain commissioners from anything
except those benefits which arise from the taking, and
it can be assessed for those benefits which arise from
the other improvements.

The question would be much simpler if, in the
present case, the city had only sought to widen the
street and, by a separate ordinance and an independent
proceeding, later provided for improvements to the
district generally by regrading. It is the privilege of
the city to combine these improvements, if it so desires.
Levy v. Seattle, 61 Wash. 540, 112 Pac. 639; Martenis
v. Tacoma, 66 Wash. 92, 118 Pac. 882; In re Third,
Fourth and Fifth Avenues, Seattle, 49 Wash. 109, 94
Pac. 1075, 95 Pac. 862. So it seems plain to us that
the words "the proposed improvement" and "for the
taking only" must refer to the same thing. Any other
construction would permit benefits from the whole
improvement to be offset against the damage to the
property and then still leave the property subject to
assessment for other improvements than those included in
the taking.

[3] Subdivision 3 refers to the gross damages
which may be sustained by the property. It is
respondent's contention that subd. 3, providing for gross
damages, has reference only to other items of damage
that might accrue to the property than those suffered
by severance, and refers to physical items such as
grades in the street, and like damages. This argument
is not at all convincing. It will be noticed that subd. 2
provides for the net damages. The word "net" is not
used, but the procedure provided therein is for net
damage, and when we come to subd. 3 and find that it
provides for the gross damages the conclusion is ineluctable
that it was so intended by the legislature. The

           STATE EX REL. BEECHER v. GILLIAM.           13
 Dec. 1927               Opinion Per ASKREN, J.

word "gross" must have been used advisedly by the
legislature. If it had in mind that subd. 3 should be
used only in those cases where there was some other
and different damage than that arising out of the
severance provided in subd. 2, it is not at all unlikely that
the word "other" would be used instead of" gross."
True, in the parenthetical phrase, we find the word
"other" used, but it seems to us that this section means
that gross damages shall be assessed unless net
damages have actually been assessed under subd. 2.
Subdivision 3 provides that the gross damages shall be
found by the jury, but there shall be no deduction for
benefits, and provides specifically that such property
shall be left subject to all assessments.

It is the contention of appellants, and it seems
sound to us, that the intention of the legislature was
that, if the jury found in a given case that the benefits
arising from the improvement are greater than the
damage, then the jury, being unable to find any net
damages, will return no verdict under subd. 2. It will
then become their duty to assess the damages under
subd. 3, whereupon the property will be left liable for
assessment for the benefits. A concrete illustration will
perhaps make the matter clearer. Assuming that the
jury should find that the damages to the remainder of
any given piece of property are in the sum of one
thousand dollars, and that the benefits from the proposed
improvement are two thousand dollars. There is then
no net damage and the jury will give no verdict under
subd. 2. The jury will thereupon, under subd. 3, find a
verdict for gross damages in the sum of one thousand
dollars, and the property will be left subject to
assessment by the eminent domain commissioners in the
amount of the benefits which the property has received,
which it is presumed would be in the amount found by
the jury, two thousand dollars. The property owner

 14    STATE EX REL. BEECHER v. GILLIAM.
                    Opinion Per ASKREN, J.           146 Wash.

has suffered the thousand dollars damage, and has
received benefits of two thousand dollars, and will pay
a net one thousand dollars. On the other hand, if the
jury find that the property is damaged one thousand
dollars and that the benefits are five hundred dollars, it
will then find a verdict under subd. 2 of the statute for
five hundred dollars damages, make no finding under
subd. 3, and the property will be free from further
assessments for the improvement.

However, if we construe the statute as contended for
by respondent, we find ourselves in this situation:
The jury find that the remainder of the property has
been damaged one thousand dollars and they find float
the benefits are two thousand dollars and thereupon
enter no verdict under subd. 2 for the defendant,
because there is no net damage. The jury is not permitted
to enter any verdict under subd. 3 as to the gross
damage, and no finding is made or required by the jury
as. to the amount of damage that the property sustains.
The eminent domain commissioners proceed to assess
the property and, presumably, they will find that the
property has been benefited two thousand dollars and
they will thereupon assess the property for that
amount, and the defendant will nowhere get credit for
the one thousand dollars damage which his property
has Sustained, and which the jury in the condemnation
case find has been suffered. Under our statute, eminent
domain commissioners have nothing to do with the
damages accruing to the property. Rem. Comp. Stat.,
SS 9237; In re Ninth Avenue West, 76 Wash. 401, 136
Pac. 488; In re Seattle, 115 Wash. 535, 197 Pac. 784.
It is apparent, of course, that this is compelling the
property owner to pay twice for the same thing. The
jury have found that his property is damaged, but not
in an amount equal to the benefits. They make no
record of that finding. The eminent domain

           STATE EX REL. BEECHER v. GILLIAM.           15
 Dec. 1927               Opinion Per ASKREN, J.

commissioners cannot allow him this damage because they
have nothing to do with that item. Such a construction
of the statute would, of course, make it unconstitutional.
It is well settled law that, if the property
owner can be compelled to pay twice for the same
benefit, the law cannot stand. Schuchard v. Seattle,
51 Wash. 41, 97 Pac. 1106; In re Seattle,
115 Wash. 535, 197 Pac. 784; State ex rel. Merchant v. District
Court, 66 Minn. 161, 68 N.W. 860; Gregg v. Sanders,
149 Ark. 15, 231 S.W. 190.

We should not hold this statute unconstitutional, if
it can be avoided. The construction which we have
placed upon this statute is the only one that renders
it constitutional, and at the same time carries out the
evident intent of the legislature.

Respondent has sought to meet this argument by
saying that the court does not know what the eminent
domain commissioners will do, when it comes to assessing
the property. That may be true, but certainly
this court will presume that the eminent domain
commissioners will perform their duty, and the amount
found by the jury as to benefits will certainly be
assessed by the eminent domain commissioners, although
perhaps not in the exact amount. In the present
case, witnesses for the city testified that the
damage to the remainder of appellants' property
would amount to approximately $6,250, while some of
appellants' witnesses placed it at a higher figure.
There can be no question but what, if the jury had
been required to find a verdict upon this question, they
must at least have found that the damage would equal
$6,250. When they were instructed by the court that
they could find a verdict under subd. 2 only in case the
damages were greater than the benefits, the jury must
have found that the benefits, by reason of the improvement,
were greater than $6,250, because they returned

 16    STATE EX REL. BEECHER v. GILLIAM.
                    Opinion Per ASKREN, J.           146 Wash.

no verdict for the appellants. The eminent domain
commissioners, in the performance of their duty, will
undoubtedly find that this property has been benefited
in the sum of $6,250, or more, and will thereupon levy
an assessment in that or a greater sum, and appellants
will be required to pay it, notwithstanding the fact
that the jury in the condemnation proceeding have
actually found that their property was damaged at
least to the extent of $6,250.

This statute has been the cause of much perplexity
to members of the bar and to the courts, as is well
illustrated by the decision in Tacoma v. Bonnell,
58 Wash. 593, 109 Pac. 60, where we said:

". . . and while the trial court was perhaps
justified in submitting the third item to the jury, for
it is, as we have said, in the statute, we confess our
inability to fathom the intention of the legislature in
adopting the third clause in the section quoted."

A reference to that case will disclose that the
decision was correct, because the jury found that there
was a net damage to the remainder of the property,
which, of course, obviated any finding of gross
damages.

Under our construction of the statute, we hold that
it is the duty of the court to require the jury to
determine under subd. 2 if there is any damage to the
remainder of the property by reason of the severance,
and, if so, whether that sum exceeds the amount of the
benefits arising from the taking. If the jury find that
it does, they shall enter a verdict for such net damages,
and ignore any verdict under subd. 3, leaving the
property subject to assessment for other benefits of the
proposed improvement, if any; but if the jury find that
there is a damage and that it is less than the amount
of the benefits, or if just equal, then the jury will find
no verdict under subd. 2 for the net damage, but will

                     STATE v. NELSON.                     17
 Dec. 1927                    Syllabus.

find one under subd. 3 for the gross damage without
making any finding as to the amount of benefits, thus
leaving the property subject to assessment by the
eminent domain commissioners for all the benefits of
the taking and other proposed improvements.

Reversed.

HOLCOMB, MAIN, and FULLERTON, JJ., concur.