Chicago, Milwaukee & Puget Sound Railway Co. v. Thayer

Crow, J.

— This action was commenced by Chicago, Milwaukee & Puget Sound Railway Company, a public service corporation, against Frank H. Thayer and Lottie Thayer, his wife, to condemn land for railway purposes. After a public use had been adjudged, a jury returned a verdict in favor of the defendants in the sum of $7,890, and the petitioner has appealed from the judgment entered thereon.

Respondents own¹ a farm of about 150 acres, in King county, upon the east bank of the Snoqualmie river. Some time prior to the commencement of this action, the Everett & Cherry Valley Traction Company obtained a right of way over and across their land, extending from north to south, and at the time of the trial herein had practically completed its railroad thereon. Appellant sought to condemn a separate right of way, 100 feet in width, immediately west of that of the traction company. Respondents have, about 42 acres of valuable bottom land to the west, and 100 acres or more of upland to the east of the traction company right of way. In the westerly tract along with the bottom land is a limited piece of upland, which is the only point suitable or available for a building site west of the traction company line, as all other portions of the westerly land are subject to overflow. As a part of the land it seeks to condemn, appellant will take most if not all of this building site, leaving no suitable building location in connection with the bottom land.

The elements of damages claimed are, (1) the value of the land taken by the right of way, and two small triangular tracts conceded to be rendered worthless, amounting in all to 5.04 acres; (2) damages to the remaining 37 acres of the bottom land or western tract, mostly occasioned by the taking of the only available building site; (3) damages to the upland or eastern tract; (4) value of a bam which will be taken; and (5) damages occasioned by an increased cost of marketing shingle bolts from the upland.

Appellant insists the damages are excessive. They are largely in excess of estimates made by appellant’s witnesses, but are well within estimates made by respondents’ witnesses. In a condemnation proceeding the just compensation to be awarded an owner of private property must be ascertained by a jury unless a jury be waived. Const., art. 1, § 16. The jury did not view the premises, but evidence admitted was sufficient to sustain their verdict. Evidence introduced by respondents was, that the bottom land was worth from $400 to $500 per acre; that the 37 acres of bottom land not taken will be damaged at least one-third of its value; that the five acres actually taken and rendered useless are worth from $2,500 to $3,000; that the upland will be damaged from $180 to $1,000; that a barn to be taken is worth from $500 to $600; and that additional damages, resulting from the increased cost of shipping cedar shingle bolts from the upland, will be from $1,500 to $1,800. A brief calculation based upon these estimates will readily show they are sufficient to sustain even a larger verdict than the one returned. While it is undoubtedly true that the evidence of witnesses produced by appellant would justify a much smaller award, the jury were entitled to accept the evidence of respondents’ witnesses, which they did. In the case of In re East Spring Street, 41 Wash. 366, 370, 83 Pac. 242, citing numerous authorities, we said:

“Courts should be slow to overturn • verdicts rendered in proceedings of this Mnd.”

While it is true, as appellant contends, that under Rem. & Bal. Code, § 931, appeals in condemnation cases bring before this court “the propriety and justness of the amount of damages in respect to the parties to the appeal,” it is obvious that we cannot pass upon the facts by substituting our judgment for that of the jury in ascertaining the compensation or damages to be awarded, nor can we disturb the verdict of the jury if there is evidence in the record sustaining the award they have made. The evidence before us, although conflicting, is unquestionably sufficient for that purpose.

Under the assignments of error presented, one question we can consider as tending to affect the damages awarded is whether the trial judge erred in admitting evidence over appellant’s objection. Respondents offered evidence to show they had more than 6,000 cords of shingle bolts on their upland, which they could readily transport to market by the river adjoining their bottom land, and that if appellant graded its right of way for a width of 100 feet immediately west of the traction company, they would be compelled to ship by another route at an additional expense. Appellant contends the trial judge erred in overruling its objection to this evidence, and that the damages thus claimed are too speculative to be submitted to the jury. The value of the shingle bolts would certainly vary in proportion to a greater or less cost of shipment. If the condemnation, by increasing the expense of shipment, would render them less valuable, respondents’ resulting loss would be an element of damages not too remote or speculative to be shown on the trial. The evidence was properly admitted.

Appellant further contends the trial court should have granted its motion for a new trial, on the grounds of surprise and newly discovered evidence. By affidavits filed in support of its motion, appellants contended that it had been misled by previous statements made by respondents and their attorney relative to the various items of damages they would present; that appellant could not, and did not, anticipate any claim for additional expense of shipping shingle bolts; that when appellant and respondents were negotiating for a settlement, and a purchase of the right of way by appellant, no allusion was made to the item of shipping shingle bolts by respondents or their attorney, although all other elements of damages were then mentioned; that after the trial appellant caused the upland to be cruised, and discovered not to exceed 500 cords of shingle bolts; and that the means of shipment upon which respondents relied have long since been abandoned. Appellant is in no position to claim surprise. Respondents were not required to file an answer, nor did they do so. Their attorney in his opening statement at the commencement of the trial, before' evidence was introduced by either party, announced that this item of damages, arising out of additional expense which respondents would necessarily incur in shipping some 6,000 cords or more of shingle bolts, would be presented. This statement advised appellant of their claim. The trial continued for several days. The land was not more than twenty miles from the courthouse. Appellant did not claim surprise, did not demand a continuance, nor does the record show that it insisted upon the jury being afforded a view of the land. It could not speculate upon the probable verdict of the jury, and later, when dissatisfied with the one returned, for the first time interpose its claim of surprise by motion for a new trial. Pincus v. Puget Sound Brewing Co., 18 Wash. 108, 50 Pac. 930; Reeder v. Traders’ Nat. Bank, 28 Wash. 139, 68 Pac. 461.

Nor do we think appellant has shown due diligence in obtaining the evidence it now claims to be newly discovered. Its engineers went upon the land and made a plat of a large portion thereof. Its witnesses visited and examined the land. Appellant knew it would be required to compensate respondents, not only for land condemned, but also for damages to that portion of their land which was not to be taken. It should have advised itself of the situation and surrounding circumstances before entering upon the trial. If it failed to do so, it was not diligent, and must abide the consequences. Appellant’s affidavits as to all material issues were flatly denied by other affidavits filed on behalf of respondents. The verdict seems to be large, from the standpoint of the evidence of appellant’s witnesses. Appellant is dissatisfied, and doubtless thinks the damages excessive and unjust. They were ascertained and awarded by a jury as the constitution directs, and the evidence is amply sufficient to sustain the award.

The judgment is affirmed.

Dunbar, C. J., and Ellis, J., concur.