Skagit County v. McLean, No. 2846

No. 2846 | Wash. | Oct 18, 1898

The opinion of the court was delivered by

Reavis, J.

Action brought in the superior court of Skagit county by respondent to condemn a right of way through the premises of appellants for a ditch for drainage, under the act of the legislature of 1895 (Bal. Code, §§ 8755-3762). The ditch was constructed under the act approved March 19, 1890, and the adjoining property assessed to pay for such construction. Appellants demurred to the petition for condemnation, the demurrer was overruled, and a jury empaneled and the cause tried. Hpon the verdict of the jury, a decree of condemnation was rendered.

Three errors are assigned by appellants: overruling the demurrer, the rejection of certain testimony relating to damages, offered by appellants at the trial, and that the decree did not specify the time within which the respondents should pay into court, for the use and benefit of the appellants, the amount awarded as damages, and that, in case of failure to make such payment, the action should be dismissed.

The principal contention made by appellants is that the acts of 1895 and 1890 are unconstitutional. But these objections all fall within the decision rendered recently in the case of Lewis County v. Gordon, ante, p. 80, and were resolved against appellants.

At the trial, testimony was offered by appellants tending to show that the ditch for which the lands were condemned was, after its construction, extended, and that the extension was practically a continuation of the ditch described in the petition, and that the extension ditch carried water which would probably flow in other directions into the ditch across appellants’ lands, thereby causing additional water to pass through the ditch on appellants’ lands and causing a greater damage in addition to that caused by taking water from contiguous lands which were owned by appellants. Such testimony was, upon objection by respondent, excluded. But, under the stipulation found in the record, it was agreed that the petition for the construction of the ditch was filed with the county commissioners February 11, 1891; and that under such petition the contract was let and a ditch constructed, and it was the same ditch the right of way of which was sought to be condemned. On August 3, 1892, another and different petition was presented to the county commissioners by different petitioners, to drain lands lying north and east of the system of ditches then located. The latter ditch was so constructed that it emptied its waters into the upper end of the ditch first constructed, and for which right of way is sought to he condemned. Under the stipulation the testimony offered was incompetent.

It is also urged by appellants that the court should have made an order requiring respondent to pay the damages assessed within a reasonable time, which order was requested by appellants. We think this request should have been granted. It was so indicated in the case of Hansen v. Hammer, 15 Wash. 315 (46 Pac. 332).

The case is therefore remanded • to the superior court with directions to modify the judgment so as to provide that respondent shall pay the amount of damages stated in the judgment to appellants, within a reasonable time, to he found by the court, or that the right to appropriate the right of way through the premises of appellants he thereafter forfeited; and, with such modification, the judgment of condemnation is in all respects affirmed. Ho costs on appeal will he taxed in favor of either party.

Scott, O. T., and Anders and Gordon, JJ., concur.

Dunbar, J., dissents.