76 Wash. 181 | Wash. | 1913
This is an eminent domain and special assessment proceeding, prosecuted in the superior court for King county, looking to the acquisition of a right of way for, and the construction of, a waterway in commercial waterway district No. 2, of King county, and the levying of the cost thereof by special assessment upon the property within that district benefited thereby. Some of the defendants, conceiving themselves to be aggrieved by the verdicts of the jury and the judgment of the superior court rendered thereon, upon the question of damages awarded for the taking of their property for the right of way, and also upon the question of the amount of maximum benefits resulting to their property from the construction of the waterway, have appealed to this court.
Commercial waterway district No. 2 lies at the southerly end of Lake Washington. It is approximately one and one-half by three miles in territorial extent, and includes the town of Renton, with some adjoining territory. The Black river flows through the district in a general southwesterly direction, and at normal stages of water, constitutes the outlet of Lake Washington, flowing out of Lake Washington at its extreme southerly end. The Cedar river flows through the district in a general northwesterly direction, empting into Black
The proposed waterway is about one and one-quarter miles long, and when constructed will divert and carry all of the waters of Cedar river directly into Lake Washington a short distance east of where Black river flows out of that lake. While this will not, under present conditions, lessen the quantity of water flowing in Black river, it will cause a more regular flow therein, especially during the seasons of high water in Cedar river, by reason of the fact that Lake Washington will constitute a large reservoir in which the waters of Cedar river may spread out and flow more gradually into Black river. By this method, flood conditions will be relieved within the district.
It incidentally appears in the record of this case that the government of the United States is carrying forward a project looking to the lowering of the waters of Lake Washington several feet below its present normal level. This contemplated project is to be accomplished by the building of what is known as the Lake Washington canal, connecting the northerly part of the lake with Puget Sound. Should such a project be completed after the completion of this waterway, it seems highly probable that little, if any, water will then flow from Lake Washington out through Black river, since the overflow of Lake Washington would then pass out through the government canal. This government project, however, is entirely independent of this waterway, in so far as we are here concerned with the question of damages and benefits resulting from the construction of this waterway. The manifest purpose of the construction of this water
It will be conducive to an understanding of the problems here for solution to have before us at the outset the main features, so far as here involved, of the law under which this proceeding is being prosecuted. Ch. 11, at page 11, Laws of 1911 (3 Rem. & Bal. Code, § 8166a et seq.). By § 7 of that law, the waterway commissioners are given powers, among others, as follows:
“(b) Said board of commissioners herein provided shall have the right, power and authority to straighten, widen, deepen and improve any and all rivers, watercourses, streams, whether navigable or otherwise, flowing through or located within the boundaries of said district.
“(c) To construct all needed and auxiliary ditches, canals, flumes, locks, dykes, and all other artificial appliances in the construction of a commercial waterway system, and which may be necessary or advisable to protect the land in any commercial waterway district, from overflow, or to assist and become necessary in the preservation and maintenance of such commercial waterway system.” Laws 1911, p. 19, § 7 (3 Rem. & Bal. Code, § 8172a).
And to this end, may be exercised the power of eminent domain. It is manifest from these provisions that such waterways may be constructed, not only for the purpose of furnish
“Sec. 11. Whenever it is desired to prosecute the construction of a system of waterways within said district, said district, by and through its board of commissioners, shall file a petition in the superior court of the county in which said district is located, setting forth therein the route or routes over which the same is to be constructed, with a reasonably accurate description thereof, together with the estimated cost of such proposed improvement, showing therein the names of the land owners whose lands are to be benefited by such proposed improvement, the description of the land owned by each such land owner, and the maximum amount of benefits to be derived by each such lot, tract or parcel of land set forth therein from the construction of said proposed improvement, and that the same will be conducive to the public health, sanitation, convenience and welfare and increase the value of all of said property for purposes of public revenue. Said petition shall further set forth a reasonably accurate description of the tracts or páreles of land or property which will be taken or damaged by said improvement, and the names of the owners and occupants thereof; . . Laws 1911, p. 24, § 11 (3 Rem. & Bal. Code, § 8176a).
Section 13, p. 25 (Id., § 8177-1), provides for the issuing and service of summons upon all owners of property sought to be taken or damaged, as well as upon all owners of property claimed to be benefited, to the end that the former may be heard upon the question of their compensation and damages, and that the latter may be heard upon the question of their benefits. Section 14 provides for trial by jury upon both of these questions, and that,
“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 ap*187 propriation and use of such land, real estate, premises or other property for said improvement 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 or per lot or tract to be derived by each of the land owners. 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 property be appropriated, and directing the commissioners of the 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 district.” Laws 1911, p. 27, § 14 (3 Rem. & Bal. Code, § 8177-2).
Section 28 provides, in substance, that the judgment or decree rendered upon the verdict finding the maximum benefits be certified to the county auditor, to the end that the same may be entered upon the tax rolls of the county for collection as special assessment taxes, such assessments, however, “shall not become due and payable except at such time or times and in such amounts as may be designated by the board of commissioners of said district.”
Section 20, p. 31 (Id., § 8184-2), provides for appeal to this court from either the award of compensation and damages or the assessment of maximum benefits, by any defendant deeming himself aggrieved thereby. From these provisions of the law, it is plain that, while the proceeding in the superior court is in form one case, it is, in substance, for the trial of two separate classes of issues to be determined by the jury, each to be uninfluenced by the other so far as the ultimate results to be reached are concerned. First, the jury is to determine the question of compensation and damages resulting to the several owners of the property to be taken for the improvement.
Some contention is made by counsel for appellants whose several tracts are charged by the verdict and judgment with benefits that the commissioners proceeded upon an erroneous theory in estimating and stating in their original petition the amount of maximum benefits resulting to the several tracts and parcels. Counsel loosely refer to these estimates, stated in the commissioners’ petition, as assessments; when, in fact, they are nothing more than allegations of the commissioners, going to make up their cause of action claimed by them against the several owners. These statements, or we might more properly say allegations, made by the commissioners in their petition, are in no sense assessments. They are nothing more than allegations of the amounts the commissioners claim the maximum benefits will be, resulting from the construction of the waterway. The theory upon which the commis
At the beginning of the trial of the branch of the case involving the question of maximum benefits, appellants whose several tracts were sought to be charged with benefits demanded separate jury trials upon that issue, which demand was by the court overruled. This is assigned as error. We find nothing in the provisions of the law awarding to appellants a jury trial on this question suggesting that they are entitled to separate jury trials thereon. We have already pointed out that this is the trial of an issue wholly different in its nature from that involved in the determining of compensation and damages in the eminent domain branch of the proceeding. This court has held, in harmony with the gen
It is contended by counsel for appellants that the superior court erred in submitting to the jury a form of verdict with the amounts of maximum benefits printed therein, following each printed description of land, as claimed by the commissioners in their petition. We do not have in the record before us any copy of the form of verdict which is claimed to have been submitted by the court to the jury, nor do we have even a copy of the verdict as returned by the jury. The copy of the judgment finally entered by the court contains our only information as to what findings the jury made on the question of benefits.- Certain objections made by counsel for appellants at the time of the submission of this branch of the
Some contention seems to be made by counsel for appellants that this is an erroneous commingling of commercial waterway and drainage projects. It seems to us that the quotations above made from § 7 (3 Rem. & Bal. Code, § 8172a), of the law plainly show that the powers of the commissioners are such that they may proceed with both objects in view, and that the maximum benefits may be measured with reference to advantages flowing to the benefited property from both or either sources.
Contentions are made in behalf of some- of the appellants that the evidence does not warrant the findings of the jury as to maximum benefits. These contentions present very much involved questions of fact, as do most local assessment problems. We have carefully read all of the evidence touching these contentions; and while, if they were here for our consideration as if we had original jurisdiction to determine them, we might arrive at different conclusions, we cannot see our way clear to disturb the findings of the jury upon the question of maximum benefits as to any of the lots or tracts involved. Some of the tracts are situated some one to two miles from the proposed waterway. We may assume, as is claimed, that such tracts derived no benefit from drainage or from relief from flood conditions, their only benefit being the advantages flowing to them from increased commercial advantages and increase in value, because of the construction of the waterway, yet we think the evidence warranted the jury
Appellants Branigan and wife, and their lessees, the Lake Gravel Company, have interest in eight acres of land bounded partially by the easterly bank of the Black river and the southerly bank of the Cedar river, at the junction of those rivers. They claim damages because of the change of the flow of the water in these rivers, especially in Cedar river, which flow of Cedar river they claim results in valuable deposits of sand and gravel being continuously made at the mouth of that river in the bed of Black river, and possibly to some extent in Cedar river, though the latter is not clear. The gravel company, as Branigan’s lessee, maintains a dredging plant there by which it procures from the bed of Black river, and possibly Cedar river, though the latter is uncertain, quantities of said and gravel which it sells in the market at a profit; and the construction of this- waterway, it is claimed, will injure that business by causing such deposits to be discontinued. They claim damages because of this loss, claiming the right to take the sand and gravel from the bed of the river because of their title to the land bordering thereon. The jury found against them, evidently being influenced so to do by the following instruction given by the court:
*194 “You are instructed that, under the contract of purchase under which the defendant Branigan claims, and under the lease which the Lake Gravel Company claims, that the property is described as extending northward to the south bank of Cedar river, thence following the south bank of the Cedar river and the east bank of the Black river, thereby describing the north and west boundary line of the land claimed by these defendants, that under such description the defendants have no claim whatsoever to any part of either the Cedar or Black river beyond the banks of such rivers.”
Counsel for appellants contend that the description of their land by which they acquired title thereto gives them the right to take sand and gravel from the beds of these rivers, and that the court’s instruction touching their claimed right in that regard is erroneous. It is not contended that the court incorrectly stated the language of the description in the deed and lease under which they claim title. It may be conceded that a description in a conveyance which bounds the land conveyed by a stream, if unnavigable, will be construed as meaning the thread of the stream, but where the description is specific in its language, naming the bank of the stream as the boundary of the land conveyed, we think the decided weight of authority is to the effect that the grantee’s rights will not extend beyond such specified boundary so as to give him any right in the bed of the stream. Lembeck v. Nye, 47 Ohio St. 336, 24 N. E. 686, 21 Am. St. 828, 8 L. R. A. 578; Murphy v. Copeland, 51 Iowa 515, 1 N. W. 691; Jenkins v. Cooper, 50 Ala. 419; People ex rel. Burnham v. Jones, 112 N. Y. 597, 20 N. E. 577; People ex rel. Com’rs of Highways v. Board of Sup'rs of Madison County, 125 Ill. 9, 17 N. E. 147; 1 Gould, Waters (3d ed.), § 199. We understand it to be conceded in the briefs of counsel that Cedar river is unnavigable and that Black river is navigable. As to the latter, it is plain that the title to the bed thereof is not in appellant, but is in the state. Section 1, article 17, state constitution. We conclude that the instruction given was not erroneous.
Counsel for appellants Branigan and wife also make some
Some contention is also made by counsel for Branigan and wife against the finding of the jury upon the question of their damage involving questions of fact only. Much is asserted in the brief of counsel as to what the evidence shows and what it does not show. We look in vain in the presentation of these questions in counsels’ brief for citation to the statement of facts where we may find the evidence as they claim. We do not feel called upon to wade through the several hundred pages of testimony bearing upon this question in order to determine whether the jury has found correctly thereon.
Error is assigned in behalf of appellant Seattle Factory Sites Company, upon the awarding of compensation and damages to it for the taking of a tract of its land situated upon the shore of Lake Washington where the waterway is to join the lake at its southern extremity. The assigned error is rested upon the exclusion by the court of all consideration of the Factory Sites Company’s claim of its loss of preference right to purchase shore lands which it claims as an incident to its ownership of the upland taken. The northerly bound
The length of this opinion constitutes but meager evidence of the difficulties of our task in disentangling the numerous issues from their involved condition. We have labored diligently and long to the end that our statement of the issues should be fair and our conclusions correct, and do not feel called upon to discuss the cause further.
The judgment is affirmed.
Crow, C. J., Mount, Chadwick, Ellis, Gose, Fullerton, and Morris, JJ., concur.
Main, J., took no part.