92 Wash. 195 | Wash. | 1916
The defendants were the owners of a certain tract of land in King county. Over and across this land the board of county commissioners desired to lay out and open a county road. For this purpose an action was instituted
In submitting the cause to the jury, the trial court instructed that the benefits that would accrue to the portion of the land not taken, if any, should be offset against the market value of that taken. The appellants requested an instruction to the effect that benefits could not be offset against the value of the land taken. The first question, therefore, is whether, in condemning land for a county road, the benefits that may accrue to the portion of the tract of land not taken may be offset against the market value of the portion taken.
In § 16, art. 1, of the state constitution, it is provided:
“No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, and no right of way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation . . .”
This provision of the constitution has been construed as' giving the right to a municipal corporation when condemning land to offset benefits to the portion of the tract not taken against the market value of that portion taken by the condemnation. Lewis v. Seattle, 5 Wash. 741, 32 Pac. 794; Kaufman v. Tacoma, Olympia & G. H. R. Co., 11 Wash. 632, 40 Pac. 137; Jones v. Seattle, 23 Wash. 753, 63 Pac. 553; Lincoln County v. Brock, 37 Wash. 14, 79 Pac. 477; Spokane Traction Co. v. Granath, 42 Wash. 506, 85 Pac. 261; Kitsap County v. Melker, 50 Wash. 29, 96 Pac. 695.
In the case last cited it was said:
“The court instructed the jury that, in estimating the appellants’ damages, they could take into consideration the difference, if any, between the value of the land after the road*197 should be established and its present value; and that, if they found that the land would be actually benefited by the establishment of the proposed road, they should offset the benefits so found against any damages the appellants would suffer by such establishment, finding in favor of the land owner for nominal damages in any event. It is urged that this instruction is in violation of § 16 of art. 1 of the state constitution, as that section, properly construed, forbids the appropriation of property for a right of way until full compensation is made therefor irrespective of any benefit to the remaining property caused by the location of a public highway over the lands so taken. But this court has given this section of the constitution the opposite construction. We have held that the requirement that the property taken or damaged be paid for irrespective of the benefits conferred on the remainder did not apply where the taking was by a municipal corporation, but that the rule followed by the trial court prevailed in such cases. (Citing authorities). If the question were one of first impression, the proper construction of this section of the constitution might be debatable, but these cases foreclose the question. The rule is too firmly established to be departed from.”
In Lincoln County v. Brock, supra, it was held that the words in the section of the constitution quoted, “any corporation other than municipal,” refer to private corporations only, and that a county should be considered a municipal corporation within the terms of the constitutional provision. It was there said:
“It is our construction that the words ‘any corporation other than municipal,’ as used in § 16, art. 1, of the constitution, are intended to exclude public or political corporations, as distinguished from private corporations. We are therefore of the opinion that a county, in the state of Washington, should be considered a municipal corporation, under said section, and, for this reason, hold that the court did not err in the instruction given.”
The force of the decisions cited is recognized by the appellants ; but it is claimed by them that, under certain statutory provisions, benefits cannot be offset against the value of the
Section 926 provides for the manner of conducting the trial, and that the jury shall assess the damages to any owner or owners of the land taken “irrespective of any benefit from any improvement proposed by such corporation.”
The two sections of the statute last referred to, and the intervening sections, define the necessary steps in the procedure when a corporation other than municipal is seeking to condemn land for its corporate purposes.
The appellants claim that, since § 5635 refers to §§ 921 to 936 for the procedure, a petition for condemnation is insufficient which prays for an award of damages in favor of the defendants in the action after deducting from the value of the property taken the benefits, as did the petition in this case.
The right of the county to offset benefits against the value of the land taken is derived from the constitution, and remains with the county until such time as the right may be
It is true, as claimed by the appellants, that the sections of the statute upon which they rely are not referred to in any of the decisions where the question has been considered. But in the case of Spokane Traction Co. v. Granath, supra, it is expressly held that the trial court did not err in permitting the prayer of a petition in a condemnation proceeding to be amended by striking out the words “irrespective of benefits.” In that case, while the action was brought in the name of a corporation other than municipal, the facts were such that the rule relative to municipal corporations was applied. The prayer of the petition in that case, after the words “irrespective of benefits” had been stricken, was in effect substantially the same as the petition in the present case.
In conclusion upon this branch of the case it may be said that we think the legislature did not intend, in providing that the procedure for condemnation of county roads should be the same as for corporations other than municipal, to take from the county a substantial right given it by the constitution.
One further question will be considered: The appellants requested an instruction which contained the statement that they were entitled to an award in damages based upon the highest and best use from a money standpoint to which the
The judgment will be affirmed.