State ex rel. Granite Investment Co. v. Superior Court , 131 Wash. 20 ( 1924 )

Fullerton, J.

In 1922, certain inhabitants and freeholders of Stevens county, owning lands bordering upon and adjacent to the Colville river in that county, organized a drainage district, the object and purpose of which was to straighten and increase the depth of the channel of the river named for the better drainage of their lands. As no question is made as to the regularity of the proceedings, it is not necessary to set them forth in detail. It is sufficient to say that a board of drainage commissioners was duly elected, that this board caused plans and specifications of the proposed improvement to be made, made an estimate of the cost thereof, and filed a petition in the superior court of the county in which the district is situated, for the purpose of acquiring the property necessary for the construction of the improvement, and of ascertaining the damages and benefits to the land affected.

The statute governing the proceedings to be had on the hearing of the petition in the superior court is found at § 4310 of the code (Rem. Comp. Stat.) [P. C. § 1947-12], and reads as follows:

“Any or all of said defendants may appear jointly or separately and admit or deny the allegations of said petition and plead any affirmative matter in defense thereof at the time and place appointed for hearing said petition, or to which the same may have been adjourned. If the court or judge thereof shall have satisfactory proof that all of the defendants in said action have been duly served with said summons, as above provided, and shall be further satisfied by competent proof that said improvement is practicable and conducive to the public health, welfare and convenience, and will increase the value of said lands for the purpose of public revenue, and that the contemplated use for which the land, real estate, premises or other property sought to be appropriated is really a public use, and that the land, real estate, premises or other property sought tó be appropriated are required and necessary for the establishment of said improvement, and that said improvement has a good and sufficient outlet, the court or judge thereof shall cause a jury of twelve qualified persons to be impaneled to assess the damages and benefits, as herein provided, if in attend-anee upon his court; and if not he may, if satisfied that the public interests require the immediate construction of said improvement, direct the sheriff of his county to summons from the citizens -of the county in which petition is filed as many qualified persons as may be necessary in order to form a jury of twelve persons, unless the parties to the proceedings consent to a less number, such number to be not less than three, and such consent shall be entered by the clerk in the minutes- of the trial.- If necessary, to complete the jury in any case, the sheriff, under the directions of the court or the judge thereof shall summon as many qualified persons as [may] be required to complete the jury from the citizens of the county in which the petition is filed. In ease a special jury is summoned the cost thereof shall be taxed -as part of the cost in the proceedings and paid by the district seeking to appropriate said land, the same as other costs in the case; and no person shall be competent as a juror who is a resident of, or land owner in, the district seeking to appropriate said land. The jurors at such trial shall make in each case a separate assessment of damages which shall result to any person, corporation or company, or to the state, by reason of the appropriation and use of such land, real estate, premises or other property for -said improvements and shall ascertain, determine and award the amount of damages to be paid to said owner or owners, respectively, and to all tenants, encumbrancers and others interested, for the taking or injuriously affecting such land, real estate, premises or other property for the establishment of said improvement; and shall further find a maximum amount of benefits per acre to be derived by each of the land owners, and also the maximum amount of benefits resulting to any municipality, public highway, corporate road, or district from construction of said improvement. ■ And upon a return of the verdict into court the same shall be reported as in other cases; whereupon, a decree shall be entered in accordance with the verdict, so rendered setting forth all- the facts'found by the jury, and decreeing that said right of way be appropriated, and directing the commissioners of said drainage district to draw their warrant’ on the county treasurer for the amount awarded by the jury to each person for damages sustained by reason of the establishment of said improvement, payable out of the funds of said drainage district.”

The first hearing was had on the petition on June 16, 1923. At this hearing certain landowners appeared and opposed the scheme, and evidence was taken upon the practicability of the system of drainage proposed, at the conclusion of which the following order was entered:

“It is hereby ordered that said system of drainage as proposed in said petition and as shown by the proof on said hearing does not appear to be practicable and sufficient for the purposes for which it is intended and that the same be and it is hereby rejected, and that plaintiff have and it is hereby given leave to file an amended petition herein, said petition to be filed on or before the 1st day of November, 1923.”

Within the time appointed, an amended petition was filed, which came on for hearing before the court on February 20, 1924. At this hearing, the opposing landowners objected to any further proceedings on the ground that the first order was determinative of the cause, the court having found therein that the proposed system was not practicable. The court overruled the objection, and entered an order reciting that the first order “was signed and entered through inadvertence, no such order at any time having been made by the above entitled court touching the practicability of Drainage District No. 4 [the district in question] or its plans and improvements,” and entered an order setting aside the prior order in so far as it found the scheme of improvement to be impracticable. A further hearing was then had thereon, at the con-elusion of which the court entered an order in which it found affirmatively upon all the matters required to be determined by the provisions of the section of the statute quoted. The court thereupon continued the cause to a day certain “for the setting of the cause for trial for the determination and assessment of damages and benefits resulting from the construction of said proposed improvements and for the calling of a jury to try said cause in the manner provided by law.”

The proceedings before us arise upon an original application made to this court to review the orders of the trial court above set forth.

The objectors suing out the writ of review first assign that the court erred in permitting the board of drainage commissioners to file an amended petition, and erred in setting aside its original finding to the effect that the contemplated scheme of improvement was impracticable. It is our opinion, however, that these objections are not tenable. With reference to pleadings in causes of this nature, the general practice act is applicable, and under that act amendments are allowed almost as a matter of course. While the question whether or not an amendment will be allowed is within the sound discretion of the trial court, abuse of the discretion, under the liberal provision of the statutes, is usually more likely to happen by a denial of the request than by its granting. Of course, the rights of the opposing party must at all times be protected. He must be given an opportunity to meet any new issue the amendment may raise, and is usually entitled to such costs as the allowance of the amendment will impose upon him. Here, there was nothing of these sorts. No hardship was imposed on the objectors, and we see no reason for holding the order erroneous.

The second branch of the objection, we think, is likewise untenable. Doubtless, had the court, after finding that the scheme was impracticable, entered a judgment of dismissal, it could not have proceeded with the cause further unless the order was reversed on appeal, or was set aside by the court itself for mistake, inadvertence, surprise, excusable neglect, or some other statutory cause, instituted for that express purpose. But the court did not dismiss the proceeding. It retained the cause for further hearing. It was, therefore, within its powers to correct any of its prior orders, whether the result of inadvertence or of a mistaken view of the rule of law applicable to the situation. As we said in State v. Riley, 36 Wash. 441, 78 Pac. 1001:

“If the trial court finds, at any stage of the proceedings prior to the entry of final judgment, that it has committed an error that will render its final judgment voidable or void, it is not only its right but its duty to correct it.”

See, also: Balfour-Guthrie Inv. Co. v. Geiger, 20 Wash. 579, 56 Pac. 370; Shephard v. Gove, 26 Wash. 452, 67 Pac. 256; Ernst v. Fox, 26 Wash. 526, 67 Pac. 258; State ex rel. Brown v. Board of Dental Examiners, 38 Wash. 325, 80 Pac. 544; Toutle Logging Co. v. Hammond Lum. Co., 78 Wash. 568, 139 Pac. 625.

The further contention is that the court erred in rejecting certain evidence offered by the relators. It will be observed from the provisions of the statute which we have quoted that one of the questions the court is required to determine on the preliminary hearing is whether the contemplated improvement is “practicable.” In the course of the hearing, the objectors offered testimony tending to show that the cost of the improvement would exceed the estimated cost made by the board of drainage commissioners, and would exceed any possible benefits to tbe lands. They also introduced testimony tending to show tbat tbe land wbicb is now subject to annual overflow by tbe river, bad an uneven surface, was “full of slougbs and pot boles,” and would require leveling before it could be cultivated, and tbat a great part of it was covered with a heavy growth of brush. They then offered testimony to tbe effect tbat it would cost from $100 to $125 per acre to level and clear tbe land so as to put it in condition for cultivation; further offering to show tbat cleared and cultivated land in tbe Colville valley, of like kind and quality and as favorably situated as is this land, was then selling at a price of from $75 to $100 per acre. Tbe court declined to receive tbe proffered testimony; bolding tbat this was not what is meant by tbe term “practicable” as used in tbe statute; tbat tbe term meant rather practicability from an engineering standpoint than practicability from a business or commercial point of view; offering to allow tbe objectors to introduce any evidence wbicb tended to' show tbat the planned system of drainage when completed would not accomplish tbe purpose intended;' tbat is to say, “drain tbe lands,” but tbat further than this be would not permit them to go.

Tbe term “practicable,” as defined by tbe lexicographers, has a number of meanings, and it is a term frequently used in statutes, not always with tbe same meaning. Tbe courts in construing it havé given it tbat meaning indicated by tbe general text of tbe act in wbicb it is found and tbe evident purposes tbe legislature bad in view. Illustrations will be found in tbe following cases: United States v. Wise, 7 Fed. 190; The Benton, 51 Fed. 302; Wilcox v. Supreme Council of Royal Arcanum, 66 Misc. Rep. 253, 123 N. Y. Supp. 83; Riser v. People ex rel., 18 Colo. App. 40, 69 Pac. 315; Mayo v. Thigpen, 107 N. C. 63, 11 S. E. 1052; William,s v. Rittenhouse & Embree Co., 198 Ill. 602, 64 N. E. 995; Joynes v. Pennsylvania R. Co., 234 Pa. St. 321, 83 Atl. 318; Pittsburg C., C. & St. L. R. Co. v. Indianapolis, C. & S. Traction Co., 169 Ind. 634, 81 N. E. 487; Wooters v. International & G. N. R. R. Co., 54 Tex. 294.

The cases in themselves, however, do not teach much. The facts and circumstances are so widely variant in each that the rule applicable to the one has but very little bearing in determining what rule should be applied to another. The legislature has used the word in two separate sections of the drainage act, once in the quoted section and once in § 4312, Bern. Comp. Stat. [P. C. § 1947-14], which reads as follows:

“In case the damages or amount of compensation for such right of way, together with the estimated costs of the improvement, amount to more than the maximum amount of benefits which will be derived from said improvement, or, if said improvement is not practicable, or will not be conducive to the public health, welfare and convenience, or will not increase the public revenue, or will not have sufficient outlet, the court shall dismiss such proceedings, and in such case a judgment shall be rendered for the costs of said proceedings against said district, and no further proceedings shall be had or done therein; and upon the payment of the costs, said organization shall be dissolved by decree of said court.”

It will thus be seen that the trial court is required to pass upon the practicability of the scheme at two separate stages of the proceedings, once at the preliminary hearing and then again after he has taken the verdict of the jury on the question of damages and benefits. While the statute is tautological, it may be that the legislature has used the term “practicable” in the second of the quoted sections in a different sense than it has used it in the first, and it may he that the legislature has intended that the court, when it can view the scheme of improvement in the light of the verdict of the jury, shall pass upon the practicability of the scheme in a business or commercial sense, yet we think this is not its duty at the first or preliminary hearing. In our opinion, it is sufficient at that hearing to find that the scheme as proposed will accomplish the purpose intended, that is to say, will, to use the language of the trial judge, “drain the lands.”

It follows that there was no error in excluding the proffered testimony.

Judgment affirmed.

Mitchell, Tolman, Bridges, and Pemberton, JJ., concur.