103 P.2d 394 | Wyo. | 1940
This is a condemnation proceeding under the power of eminent domain. The City of Casper, a city of the first class, seeks to construct a subway underneath the tracks of the Chicago, Burlington and Quincy Railroad Company, to be a part of North Center Street, and to *63 take the place of that part of that street which now crosses these tracks. The defendants are abutting property owners on North Center Street, and the city seeks in this proceeding to have their damages assessed which they will sustain by reason of the construction of the subway. Some of the defendants demurred to the petition. The demurrer was overruled. An order for condemnation was entered. A commission was appointed to assess the damages. They made their report. Some of the defendants demanded a trial by jury. The demand was granted, and the jury assessed the damages of the different defendants, including the damages sustained by the plaintiffs in error herein. Thereafter motions were filed by the latter, which, in substance, are to the effect that the trial court had no jurisdiction to cause the damages to be assessed herein. The specific points raised will be mentioned hereafter. The motions were overruled, and a final order was entered by the court. Thereupon proceedings in error were instituted to bring the case to this court for review. The petition in error of Laura Mai Holm, on behalf of herself and as guardian of her minor children, is separate from that of the other plaintiffs in error. The only point in her case, not involved in the other, relates to the allegation of the petition as to the guardianship of the minors. The two cases have been consolidated for argument in this court, and this opinion will dispose of both petitions in error.
1. It appears, inferentially at least, that the council of the City of Casper had not adopted a formal resolution authorizing the city attorney to institute the proceeding for condemnation herein. It is contended that that was necessary. The Council adopted a resolution on June 19, 1939, ratifying and confirming what had been done. The petition filed in the case contained no allegation that its filing was authorized by the council. Section 38-204, Rev. St. 1931, states the essentials necessary *64
to be contained in the petition. That does not include an allegation of the adoption of a resolution as above mentioned. The petition appears to contain all the allegations required by the statute. The court determines the "right to make the appropriation." Sec. 38-214. In view of these facts we do not think that the lack of the adoption of a formal resolution previous to the institution of the proceedings was fatal, and that the ratification was sufficient. It has been so held. Kountze Bros. v. Proprietors etc.,
2. Section 38-206, Rev. St. 1931, provides that "if the proceedings seek to affect the property of persons under guardianship in this state, the guardian shall be made a party defendant." That was done in this case. The petition alleges "that a part of the lands which will be injuriously affected or damaged by the construction of said subway is the south 51 feet of lot numbered 3 in block numbered 55 in the city of Casper, Natrona County, Wyoming, and that the owners of said tract are Laura Mai Holm, and Curt G. Mai and Marjorie Elma Mai, minors, and the said Laura Mai Holm is the duly appointed, qualified and acting guardian of said minors." It is contended that the allegation should have been more specific in that it should have been alleged that the guardian was the guardian of the estate of said minors. Laura Mai Holm appeared in the proceeding to defend the interests of the minors and set aside the orders which had been made in the case. When she did so, she evidently thought that she was the guardian of the estate of the minors. We think, at *65 least in view of that fact, we should not indulge in any presumption that the guardianship was a limited one. Furthermore, it may have been shown in the trial of the case that Laura Mai Holm was actually the guardian of the estate of the minors. The evidence is not incorporated in the record.
3. The main contention herein is that the city has no right to institute a condemnation proceeding, under the power of eminent domain, solely for the purpose of determining the damages to abutting property owners. It is claimed that no such proceeding is authorized, unless property is actually and physically taken, as is not true in the case at bar; that when only a question of damages is involved, it must be left to an independent action brought by the person damaged, and authorized by reason of Section 33, Article 1, of our Constitution, which provides that "private property shall not be taken or damaged for public or private use without just compensation." The plaintiffs in error have had the benefit of an assessment of their damages by a commission, and the benefit of a trial by jury. Still they are not satisfied, though they do not question the right of the city to construct the viaduct. They advance as a reason for that dissatisfaction that they are not able to tell before the subway is constructed what their damages will be; that only time can tell, and that hence they should have the right to have these damages determined, in an independent action therefor, when they have had time to ascertain what effect the subway will have upon their property. They call attention, for instance, to the fact that one of the properties is a hotel, and that they can not tell at this time whether the patronage thereof will increase or decrease in the future. We have no doubt that in some instances, and perhaps in the instant case, it would be more advantageous to the abutting property owner to give him time to see the effect of the work which the city is *66
undertaking. That the contention of plaintiffs in error is not lacking in merit has at times been recognized by the courts. Penn. Mut. Life Ins. Co. v. Heiss,
The extent of the contention of counsel is not clear. Plaintiffs in error are not interested in the question whether anyone else's property is taken. So far as their own damage is concerned, it is wholly immaterial what may or may not be done in connection with any one else's property. So that, if the contention of counsel has any force at all, it must mean that even though someone else's property may be actually and physically taken, and condemnation proceedings for that may be necessary, still the damages of parties whose property is not actually and physically taken cannot be assessed in that proceeding, but must always be left to an independent action brought by the person damaged. Such action would not be barred until the statute of limitations has run, thus compelling the city to wait, perhaps, for years, before it will know what it will actually have to pay, and the amount thereof, depending on the number of persons damaged, might be very large. That such a result is undesirable would seem to be clear. Lewis, Eminent Domain (3rd ed.) Section 965 (and see Gillespie v. Board,
The proceedings for condemnation by cities of the first class are, as will be noted hereafter, governed by the provisions relating to condemnations by a railroad company. And counsel for plaintiffs in error, to sustain their theory above mentioned, cite us to section 38-223, Rev. St. 1931, which provides that the certificate of commissioners or the verdict of a jury must contain, First, an accurate description of the land taken; Second, the value of the land or property actually taken; and Third, the damage to the land affected, but not taken. Section 38-224, provides that the condemnor shall, when the proceedings are perfected, become seized in fee of the property taken, etc. Counsel call attention to the fact that the provisions of the last section above mentioned, and the provision of the preceding section, that the value of the land actually taken shall be stated by the jury, etc., cannot be carried out in a condemnation proceeding such as is involved in this case, and that, accordingly, their theory above mentioned must be correct. In other words, they contend that all the provisions cited are mandatory in all cases. But we think that they construe the statute too literally. The intention of the legislature must be considered. It meant to make the provisions covering condemnation proceedings sufficiently broad to cover all *68 cases. A statute may be mandatory in some respects and not in others. 59 C.J. 1072. In so far as it is inapplicable to the plaintiffs in error, and in so far as the failure to comply therewith can not prejudice them, it cannot be considered mandatory as to them. Lewis' Sutherland on Statutory Construction (2nd ed.) Sec. 611; Granite Bituminous Paving Co. v. McManus, 144 Mo. App. 593, 129 S.W. 448. We do not think that, simply because some provisions in a particular section of a large legislative act do not apply in certain cases, it necessarily follows that none of the provisions of the chapter apply. We have not been cited to any cases so holding. In any event, the provisions must be construed in conjunction with other statutory provisions applicable, and all of them together, we think, make the intention of the legislature clear.
Section 22-353, Rev. St. 1931, provides among other things that "damages sustained by the owners of property abutting thereon (on any street) for any property taken or injured in the establishment, extension of, or vacation of any street, avenue, alley or lane, shall be ascertained in the manner provided herein." The only method provided is in the next section, namely, in a proceeding for condemnation. While it is not clear that the case at bar involves any "establishment" or extension of a street, the statutory provision quoted goes far in refuting the theory advanced by counsel for plaintiffs in error herein, for it contains no intimation that the damages for property merely injured cannot be ascertained in such proceeding, but, if given a natural meaning, would clearly seem to show the contrary. And that is true beyond argument in the case of the vacation of a street. In such case there is no actual, physical taking of any property of the abutting owner in the sense contended for by counsel; there is a mere injury or damage. And yet that injury and damage must be *69 determined by a condemnation proceeding. Section 22-354, Rev. St. 1931, provides:
"They shall have power to exercise the power of eminent domain, and take private property for public use within or without the city, for the purpose of erecting or establishing market houses and market places, streets, alleys, public buildings, cemeteries, or for any other necessary or authorized public purpose; provided, however, that in all cases the city shall make the person or persons whose property shall be taken or injured thereby, adequate compensation therefor, to be determined by proceedings instituted in the district court of the county where such city is located, and conducted as by law provided for condemnation by railway companies, and with the same rights, power and privileges granted to railroad companies in such cases."
We may note that, though counsel for plaintiffs in error do not agree, the proviso in the foregoing section is hardly distinguishable from Chapter 118, Oklahoma Session Laws of 1927, mentioned in State Highway Commission v. Smith, supra, and under which, it was held, compensation for consequential damages are to be assessed in the case of a construction of a road, when none of the property of the person damaged is actually and physically taken. Counsel for plaintiffs in error contend that in the clause "provided, however, that in all cases the city shall make the person or persons whose property is taken or injured thereby," the word "thereby" refers to the injury occasioned by the actual taking of property — that is to say, that it covers merely the consequential injury to the whole of the property, part of which is actually taken. Such construction is possible. But it is probable that the term "thereby" refers to the exercise of the power of eminent domain, mentioned in the first clause of the section. Such construction is more in harmony with the provisions of the preceding section already quoted, and more in harmony with the provision in chapter 38 of the statutes. Section *70 38-212 provides that new parties may come into a case for condemnation whose property "will be taken or injuriously affected by the proceedings." Section 38-202 provides that compensation shall be made for "any real property taken or injuriously affected." Section 38-219 states that the jury shall determine the compensation to be made to the owners "for the taking or affecting of such real property." None of these sections limit the damage to cases caused to property "actually and physically taken," but cover all cases whether any property is actually taken or not.
The sections last mentioned, namely those under Chapter 38 of the Revised Statutes, relate to the right of eminent domain of railroad companies. The chapter was enacted in 1888. The constitutional provision above mentioned (Sec. 33, Article 1) was not adopted until 1890. Counsel call attention to this fact, and then argue that "under the circumstances the statutes have no application whatever in the mere assessment for damages." We do not understand the reasoning of counsel. The term "damaged" used in the constitution, and the term "injuriously affected" used in the various sections of the statute, are synonymous. Rigney v. Chicago,
The contention made in this case has seldom, if ever, *72
been made before. Usually the contention has been either that the condemnor had no right to take the property right sought to be acquired at all, or that he or it should cause the damages to be assessed in a condemnation proceeding before going ahead with the work sought to be done. Thus in Penn Mutual Life Ins. Co. v. Heiss,
"That the owners of lots abutting on a street have a peculiar and distinct interest in the easement in the street, is a well established doctrine of law. * * * This right cannot be appropriated and taken from him against his consent without compensation. * * * This peculiar right of the abutting lot-owner may, like any other private property, be made subject to the power of eminent domain, and in the exercise of that power, may be taken for public use by due process of law."
In Schaaf v. Ry. Co., 66 Ohio St. 215, an interurban railway company interfered with an easement on a highway by constructing a line thereon. The court held *74 that the abutting property owner was entitled to compensation for such interference, and to an injunction unless proceedings in condemnation were instituted. The court stated in part:
"It was the primary duty of the railway company, before attempting to take from the plaintiffs, property rights which the constitution guarantees them, to institute in a proper tribunal the necessary appropriation proceedings to obtain an assessment of compensation and damages to them."
The case was followed in Callen v. Light Company, 66 Ohio St. 166, 58 L.R.A. 782, where the interference with the easement in a street was by placing electric light poles and fixtures along the curb. So in Dunnebacke v. Ry. Co.,
The judgment in this case must be affirmed and it is so ordered.
Affirmed.
RINER, Ch. J., and KIMBALL, J., concur.