38 Wash. 684 | Wash. | 1905
On January 8, 1902, one W. L. Sanders and more than nine others, all householders of the county of Chelan, residing in the vicinity of the proposed road, petitioned the board of county commissioners of that county to. lay out and establish a county road 40 feet in width over and along the following route^ to wit:
“Beginning at or near the intersection of the west, line of Bernard Devon’s ranch (lot 43, T. 27. N., R. 21, E., W. M.) and the shore land on the south shore of Lake Chelan; thence along the right bank of the lake, in a southeasterly direction, and along the shore immediately adjoining high water mark, to a point to intersect the present county road where the same intersects the lake shore.
“Also^ beginning at a point on the present county road at the mouth of the coulee in S. W. % Sec. 17, T. 27, N., R. 22 E., W. M., thence across said section 17, by the most practicable and feasible route, to the lake shore on lot 2, Sec. 8, T. 27, N., R. 22 E., W. M., to intersect with the road hereinbefore proposed. Said road from the mouth of the coulee to the lake shore as aforesaid to be 60 feet in width, and thus we would ever pray.”
The board regularly acted upon the petition, and thereafter such proceedings were had that, the board decided to establish the road, substantially along the route mentioned in the first part of the description, but to reject the branch described in the second part thereof. That part of the proposed road the board decided to. establish crosses the lands of the appellants, and this action was brought to condemn so much of the same as was found to be necessary for the use of the road.
But three errors are assigned for our consideration. The first is that the court, on setting the cause for trial, did not allow the appellants sufficient time in which to prepare for trial. But we find no support in the record for this contention. While the record shows that counsel for the appellants filed a written objection to the order of the court setting the cause for trial, it fails to show what evidence was before the court, either in support of, or in opposition to, the order. It may be true, as counsel argue, that this court will take judicial notice that Wenatchee, the place of trial, is some forty miles from Lake Chelan, the location of the proposed road, but it does not follow from this, as they further argue, that it must be conclusively presumed that the time allowed them by the court to prepare for trial was not a sufficient time. Distance of the subject-matter of the trial from the place of trial, when urged as a reason for granting time to prepare for trial, is doubtless
It is next contended that the court erred in refusing to call a jury to determine the amount of compensation that should be awarded the appellants for the taking of their property. The argument is that the general statute of March 9, 1903 (Laws 1903, p. 50), providing for a constructive waiver of a jury trial, has no application to condemnation proceedings provided for by the act of March 3, 1891, and the acts amendatory thereof. To quote the language of counsel, this must be true,
“. . . for two reasons . . .; this constructive waiver being unknown at the time of the passage of the condemnation act and its amendments, it cannot be grafted on these acts by a general statute passed afterwards; and, this constructive waiver being unknown at the time of the passage of the condemnation act and its amendments, the right to a jury trial became a fixed constitutional right, and to require a citizen to' pay costs in advance, to secure the same, was a violation of section 16, article 1, of the constitution.”
But we are unable to agree with either of these contentions. It is doubtless true, as a general rule, that a special statute, enacted for a special purpose, when complete in itself, is not repealed, modified, or amended by a subsequent general statute; but we doi not find that the statute relating to condemnation proceedings was thus complete in itself. By the original act, after prescribing the manner of trial by jury, it was provided that:
“In case a jury is waived, as in civil cases in courts of record, in the manner prescribed by law, the compensation to be paid for the property sought to be appropriated shall be ascertained and determined by the court or the judge thereof, and the proceedings shall be the same as in trials of an issue of fact by the court.” Bal. Code, § 5620.
'Nor does § 16 of art. 1 of the state constitution provide for a different rule. By that section the owner of property sought to be condemned for public use is entitled to have the amount of compensation to be awarded him determined by a jury, “unless a jury be waived, as in other civil cases in courts of record, in the manner prescribed by law/' The “manner prescribed by law” here meant is the law in force at the time the land is sought to be condemned, not the law in force at the time of the adoption of the con
Lastly, it is said that the court was without jurisdiction to enter a judgment of condemnation against the property of the appellants. This contention is founded on the claimed insufficiency of the petition for the road, filed with the board of county commissioners. By reference to the description of the proposed road, it will be observed that the beginning point is somewhat indefinitely described, and that a branch road, running from near the middle course of the proposed road north to an existing road, is petitioned for. It is thought these matters rendered the petition so fatally defective as not to give the board of county commissioners power to act thereon, and, of course-, if that board had no. jurisdiction to establish the the road, the superior court would have none to condemn land for that purpose.
As to the-sufficiency of the petition, it is true we held in Shell v. Poulson, 23 Wash. 535, 63 Pac. 204, that a petition for the establishment of a county road, no more indefinite- perhaps than the one at bar, was too- indefinite to give- the board jurisdiction. But it must be remembered that in that case we had under consideration the old territorial statute, which made the petition- the basis of jurisdiction. Under that statute- the petition was required to describe- the terminal points and the course of the proposed road with reasonable certainty, and, on the description contained therein, was based the notice given to those whose property was liable to be taken by the establishment of the road. Moreover, the board was required tot establish the road between the terminals and over the route therein described. Those affected by the road, therefore, had the right to insist that the requirements of the statute with reference to the petition be complied with, so that their
The objection that it asked for the establishment of more than one road, or one road with a branch, does not render the proceedings void. Such a proceeding is doubtless irregular, and it may be safer and better for the commissioners to require that, a separate petition be filed in each
As we find no error in the record, the judgment will stand affirmed.