4 Wash. 311 | Wash. | 1892
The opinion of the court was. delivered by
This was a proceeding to condemn property for corporate uses, under the act of February 1, 1888.
Under our statute, which party is entitled to open and close? This question has been a much mooted one, and the authorities in regard thereto are absolutely irreconcilable. In some of the states, after a careful consideration, the courts have settled down in favor of one side of the proposition, while in others, after equally careful consideration, a directly opposite conclusion has been arrived at. The question is a new one here, and the construction of our own statute is directly involved. It therefore becomes our duty to investigate the same, not only in the light of the decisions of the courts of other states upon this particular question, but also in the light of established principles as universally applied to the determination of questions of this nature.
“Objection is taken to the refusal of the court below to permit the defendant’s counsel, on his motion, to open and close the case before the jury. The decisions of courts are not uniform upon this question. The general rule, as laid down in Wharton on Evidence, § 357, is: Tt may be stated, as a test of universal application, that, whether the proposition be affirmative or negative, the party against whom judgment would be given as to a particular issue, supposing no proof to be offered on either side, has on him, whether he be plaintiff or defendant, the burden of proof which he • must satisfactorily sustain.’ The present proceeding is not one by the land owner to have an assessment made of his damages or compensation for the taking of his land, but it is a proceeding instituted by the railroad company to ascertain what is a just compensation for the land sought to be appropriated. By our state constitution, the land cannot be acquired without just compensation to the*316 land owner, to be ascertained by a jury. The statute upon the subject contemplates that the jury are to ascertain the compensation ‘after hearing the proof offered.’ Should there, then, be no proof offered, the petitioner would be defeated. It would fail of having an ascertainment by the jury, upon proof offered, of what was a just compensation for the land, without which it would be unable to acquire the land sought to be appropriated. Under the rule, then, that the party entitled to begin is he who would have a verdict against him if no evidence were given on either side, we think the court below properly ruled that the petitioner should open and close. This view is in agreement with the decision of the supreme court of Ohio upon this precise question, in the well considered case of Neff v. Cincinnati, 32 Ohio St. 215, under the constitution and statute of that state, which we take to be similar to ours upon this subject.”
The conclusions of this case were expressly affirmed in the case of South Park Commissioners v. Trustees of Schools, 107 Ill. 489, where Mr. Justice Craig, in delivering the opinion of the court, shows that the application of the universally accepted rules in regard to the burden of proof, and the consequent right to open and close, when applied to cases of this kind, will cast upon the corporation the burden of proof, and give it the right to open and close whenever it is the moving party, but that the contrary rule might well be held to obtain where the proceeding was one by the land owner affirming the taking of the property by the corporation, and seeking only a judgment for damages. These cases, and others upon the same side, referred to by appellant, so well agree with our own ideas of the proper construction of our statute that we feel compelled to decide in accordance therewith.
But, as against the reasoning of these cases, it is suggested upon argument by respondents that under our statutes the adjudication as to the necessity of the taking is a separate proceeding, and that the only question to be
Another error relied upon by appellant is, that the verdict was excessive, and that the court erred in not granting its motion for a new trial on that ground. Its first position on this question is that, as it alone appealed from the award of damages by the commissioners, the respondents could get no benefit from such appeal; from which it would follow that no verdict in excess of $8,500, the amount of the award of said commissioners, could be sustained. Appellant makes an ingenious argument in support of this position, but we are not satisfied that it should obtain. The statute is not as clear upon this subject as it should be, but it seems to contemplate a new trial as to the amount of damages which should be awarded. As this statute is no longer in force, this question is of little importance, and we shall not further discuss it.
Appellant further contends that the amount of damages awarded is greatly in excess of the sum warranted by the proofs. In this regard it is not claimed that there was no testimony in the case which would warrant the verdict ren
Appellant further contends that it was error to allow the jury to view the premises. Ve think, however, that this was a matter within the discretion of the trial court, and that no abuse of such discretion is shown by the record.
Several other errors are assigned as ground for the reversal of the judgment, but they are most of them simply branches of the questions which we have discussed above, and the others are not of sufficient importance to require separate consideration.
Judgment of the court below must be reversed, and the cause remanded for further proceedings in accordance with this opinion.
Andeks, O. J., and Stiles and Scott, JJ., concur.
Dunbak, J., not sitting.