57 Wash. 295 | Wash. | 1910
This action was brought by the city of Tacoma to condemn certain property for the purpose of extending Center street in said city. Appellants Murray, Wallace, and Carroll are the owners of a tract of land, one hundred and fifty feet in width, and approximately six hundred and twenty-three feet long, lying parallel with, and adjacent to, the right of way of the Northern Pacific Railway Company. Appellants Wetherby own a like tract, approximately one hundred feet long. This adjoins the first described tract on the east. The case was tried as one case, but separate appeals are prosecuted by the claimants of the respective tracts. We will first consider the grounds urged by appellants Murray and their co-owners.
The point is made that the petition was insufficient to warrant the introduction of evidence, for the reason that it did not describe the whole tract out of which the land is sought to be taken. In this class of cases the statute is the only guide. Reference to Laws of 1907,’ §§ 4 to 8, pp. 318,
It is also urged that the court erred in allowing evidence upon the question of benefits that would accrue to appellants’ remaining property. This assignment will be discussed when considering, an instruction covering the same subject.
To fix the value of the Wetherby tract, his counsel had asked a witness some questions as to the price paid for similar property theretofore purchased by the Union Pacific Railway Company. On cross-examination the city attorney asked the witness how much Mr. Wetherby paid for his land. Appellants’, objections seem to be based on the theory that this testimony stands alone. If this were so, it might be regarded as error. Port Townsend Southern R. Co. v. Barbare, 46 Wash. 275, 89 Pac. 710. But there was other testimony going to the value of the property, and this being supplemented by a view of the premises by the jury, we do not consider it so prejudicial as to warrant a reversal.
The trial court refused to allow appellants’ witnesses to approximate the value of the land taken by reference to platted property. That was not error. The property had
The trial court refused to hear testimony tending to show that the land had been leased to the Union Pacific Railway Company. It is questionable whether this testimony could have been received on any. theory. But as a copy of the lease offered by counsel is not before us, we must presume that the ruling of the court was proper.
It is urged that the court erred in instructing the jury that they should fix the actual cash market value of the land proposed to be taken. This objection is urged on the theory that, under the act óf 1907, a long time must necessarily intervene between the date of appropriation and date of payment, and that the court should have so instructed the jury. Regardless of any merit this contention might have otherwise had, no request for an instruction upon this point was made by appellants. The instruction given by the court is the one usually given in such cases, and appellants are in no position to complain of it.
The jury were told that, in estimating the value of the lands taken, they should disregard the statements of the attorneys as to the value of the lands. It would be better, if the court assumes to instruct the jury upon the weight to be given to the arguments of counsel, to do so fully. It is the privilege of every litigant to be represented by counsel who has the right to advocate the cause of his client arid to combat that of his adversary. He may discuss the facts of the case, the manner and demeanor of the witnesses, and all things presented by, or growing out of, the record. To these arguments the jury should give the most careful considera
The following instruction is complained of:
“In determining whether any such adjacent property is damaged, you will determine whether or not the remaining property is benefited, and if the damage is in excess of the benefits arising from the opening of the proposed street, then you will assess the damages to the amount of such excess; but if you find the benefit to the adjacent property is equal to the damage, the adjacent property will sustain by reason of the opening of the street, then you will find the property is not damaged.”
The question of comparative damages, as applied to condemnations for municipal purposes, has been settled in this state both by statute and by judicial opinion. The instruction given seems to have been drawn under the statute, and it is in accord with the decisions of this court as collected in Kitsap County v. Melker, 50 Wash. 29, 96 Pac. 695. The case was tried as a condemnation case, and we cannot now consider any questions that might arise under the assessment proceeding which is to follow:
The only question raised by appellants Wetherby not covered by the foregoing is that the court erred in refusing these appellants a separate trial under the condemnation act. Laws 1907, p. 318, § 7 (Bern. & Bal. Code, § 7774). By the terms of the statute, this was a matter resting within the discretion of the trial court, and cannot be considered by us in the absence of some showing that the court has abused its discretion. In re Western Avenue,
The judgment of the lower court is affirmed.
Rudkin, C. J., Gose, Morris, and Fullerton, JJ., concur.