Lead Opinion
Plaintiff predicates error on the ruling of the court in permitting witness Woodworth
*569
to express opinion relative to the .value of the land in question, for the reason that he had not shown sufficient qualification to do so. We are unable to agree with this contention. The competency of the witness is a preliminary question of fact for the trial court to determine, and its finding in reference thereto will not be reviewed except for abuse of discretion:
Laam
v.
Green,
Similar objection was made concerning- the competency of the witness Harbaugh to testify as an expert on value and also that the testimony given by him was irrelevant and incompetent. We believe these objections are untenable. Harbaugh testified that he had known the property for five or six years, had observed similar tracts, and was acquainted with property values generally in the state. As we view *570 the record, the answer of the witness relative to value pertained to the property in question and not to the ad joining tra,ct as contended by plaintiff.
The remaining assignment of error by appellant concerns what is claimed to be a withdrawal of the following instruction:
“I instruct you further that damages of an uncertain or speculative nature cannot be awarded in this proceeding. And any damages awarded must be based upon evidence as to the market value of the land on December 1, 1922. And I instruct you that you are not authorized to award damages based upon indefinite or uncertain future anticipated profits to result from a business enterprise which had not been started at the time plaintiff took possession of the land in question.”
The record discloses that counsel for defendants “except to that instruction which the court gave about future indefinite profits not being taken into consideration.” Whereupon the court said, “I will allow that exception.” We agree the instruction in question was a correct statement of the law, but fail to see wherein it was withdrawn from consideration of the jury. The trial judge’s statement that he would “allow that exception” did not have the effect, nor was it intended, to withdraw the instruction. Had the court desired to do so, the jurors undoubtedly would have been cautioned to disregard it in their deliberations. Having held adversely to appellant’s contentions, we now pass to a consideration of cross-appellant’s numerous assignments of error.
Defendants challenge the right of the state, through its fish commission, to exercise the power of eminent domain as proposed herein. It is con-, tended that the amendatory act (Gen. Laws of Oregon 1921, Chapter 373), purporting to vest such *571 power, is void in that it violates Section 20, Article IY, of the Constitution of Oregon, providing that “every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title * * ,” and is in direct conflict with the provisions of the original act (Section 7114, Or. L.).'Let us consider the original act and the amendment thereto. The title to the original act reads (Gen. Laws of Oregon 1915, Chapter 36):
“An act to preserve the scenic beauty of certain waterfalls and streams in view of, or near, the Columbia Eiver Highway.”
Section 1 of the original act enumerated certain streams withdrawn from appropriation, among which was Herman Creek. Section 2 of the act prior to amendment (Section 7114, Or. L.) provided:
“This act shall not prevent the condemnation for public park purposes of any lands through which any of said streams flow, nor affect vested rights or the rights of riparian proprietors of such lands in, or the waters of said creeks or streams.”
The amendatory act of 1921, around which this controversy centers, is entitled, “An act to amend Section 7114 of Oregon Laws,” and added to Section 2 of the original act the following:
“Nor shall it prevent the condemnation of any lands through which any of said streams flow, for the purpose of establishing, maintaining, and operating thereon salmon fish culture work, nor shall this act prevent the Fish Commission of the State of Oregon from appropriating any of said waters for fish culture work; Provided, however, that no waters shall be taken from above the falls in the streams mentioned in section 7113 of Oregon Laws.”
It will be observed that prior to the amendatory act, land through which said streams flowed could be
*572
appropriated for public park purposes only. The legislature, in its session of 1921, undertook to vest power in the fish commission to appropriate such land for “salmon fish culture work.” In our opinion the acts in question are not inconsistent, nor do they conflict. It is urged that the title to the amendatory act does not state the purpose or object of the act, and is therefore, void. While as stated in
Hearn
v.
Louttit,
Attack is made on the resolution of the Pish Commission declaring its intention to appropriate defendants’ property for “fish culture work,” as the statute grants the power to condemn land only for “salmon fish culture work.” While the resolution is irregular in that it does not conform to the statute in the respect noted, suffice it to say the court, properly exercising its discretion, permitted plaintiff to amend its complaint in this action by inserting the word “salmon” before the words “fish culture work.” The land was therefore appropriated for the purpose specified by statute.
Contention is made that the resolution was not legally passed in that no notice of the time of meet *573 ing was served upon the third member of the commission. The State of Oregon, and not the fish commission, is exercising the power of eminent domain: State ex rel. v. Hawk et al., supra. The plaintiff is in court, with its duly verified complaint, seeking to exercise that right. Defendants joined issue on the merits, and the preliminary proceedings of the commission are not here involved: 20 C. J. 1064. A similar contention was made in Matter of New York C. & H. R. R. R. Co., 33 Hun (N. Y.), 274, and the court, commenting upon failure to show an authoritative determination of the company to appropriate the land, said:
“We think the determination of the company to that effect is sufficiently shown by its action in instituting this proceeding, by its petition duly verified * particularly describing the land, and alleging the purposes for which it needs to acquire it.”
Cross-appellants rely on State ex rel. v. Hawk et al., supra, wherein Mr. Justice Bean, speaking for the court, said:
“While the section of the statute (Section 7089, Or. L.), refers to procedure, it is also a plain legislative authorization of a proceeding in the name of the state for the condemnation of real pronerty for a public use when the necessity for such acquisition is decided and declared in the first instance by the proper state board.”
We believe the commencement of the action is proof conclusive that the state, through its fish commission, decided and declared the necessity of taking defendants’ land for public use. The passage of the resolution is not jurisdictional and the pleading and proof thereof are not essential to the maintenance of plaintiff’s cause:
Kern County Union High School
Dist. v.
McDonald et al.,
Defendants assert the condemnation proceedings are null and void in that their property is taken without due process of law, “because the complaint does not show nor does the law provide any specific sum which must respond to the judgment as entered.” It is claimed, since the state cannot be sued without its consent, that they may be deprived of their property without compensation and that they are dependent solely upon the whim and caprice of the legislature to provide funds with which to pay. Section 18, Article I, of the Constitution reads:
“Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor, except in the case of the state, without such compensation first assessed and tendered.”
It will be observed from the above constitutional provision that private property may be taken for public use by the state without first assessing and tendering compensation. Cases cited where private property is appropriated by others than the state are not in point. Section 7090, Or. L., provides:
“The expenses of such condemnation proceedings and the value of the real property, water, watercourses, and water and riparian rights or interest therein, and the damages for the taking thereof, shall be paid out of the funds provided for the department or institution for which the real property, water, watercourses, and water and riparian rights or interest therein are so acquired, in the same manner as other expenses for like purposes of such department or institution are paid, and if no funds have been provided out of which the same can be paid, payment shall be made out of any funds in the treasury, not otherwise appropriated, apd the secretary of state is *575 hereby authorized to draw his warrant on the treasurer therefor.”
But, say defendants, “suppose there are no moneys in the treasury—‘not otherwise appropriated’—then what?” Lewis on Eminent Domain (3 ed.), Section 679, answers thus:
“A distinction is usually made by such courts between a taking by the public, that is, by the state or public corporations, and a taking by private corporations or individuals. In the former case the compensation is a public charge, the good faith of the public is pledg-ed for its payment, and all the resources of taxation may be employed in raising the amount. "Where, therefore, the law requires the compensation to be paid out of the state treasury * * it is held that such sure and certain provision is made for obtaining compensation as satisfies the constitution”— citing many authorities in support of the text.
Section 7090 of the statute is, in effect, an explicit pledge of the faith'and credit of the state, and, in contemplation of law, is ample security to the land owner that just compensation will be made. It is not necessary that the good faith and credit of the state be pleaded, for such is presumed:
State ex rel. Peel
v.
Clausen,
It is urged that this section cannot be maintained for no
bona fide
attempt was made to agree upon the price to be paid defendants for the land taken together with the improvements placed thereon by plaintiff. The complaint alleged, and evidence
*576
was offered tending to show, an inability to agree with the owners upon the price to be paid for the land and easement, exclusive of the improvements. We are of opinion that defendants are not entitled to compensation for the improvements in question, and the instructions of the court on that issue are correct. The plaintiff entered upon the premises in good faith and by virtue of a written lease. It was in no sense a trespasser. The law is well settled adversly to the contention of cross-appellants:
Searl
v.
School District,
The counterclaim in which damages for wrongful detention of the property are alleg-ed was properly stricken out by the trial court. Section 7101, Or. L., provides:
“The defendant in his answer may set forth any legal defense he may have to the appropriation of such lands or any portion thereof, and may also allege the true value of the lands and the damages resulting from the appropriation thereof.”
Whatever damages, if any, defendants sustained by having been kept out of possession of their property cannot be assessed in this action. The statutory enactment above quoted specifies the defenses available, and defendants are limited thereby. We are
*577
concerned with a proceeding in the exercise of the right of eminent domain, and not with an action in ejectment or trespass:
Searl
v.
School District, supra; Jacksonville, Tampa & Key West R. Co.
v.
Adams,
The law applicable to the extent, necessity and expediency of the appropriation presented by the third and fifth affirmative defenses was stated on the former appeal of this case, and need not be repeated. In support of the conclusions there reached, and here confirmed, see
Adirondack Ry. Co.
v.
New York State,
In the fourth affirmative defense it is asserted that, under the power of eminent domain, lands devoted to a public use cannot be taken from the possessor by a third person for the same use. This rule of. law is not applicable to the facts herein because defendants were not, nor did they contemplate, devoting their property to a public use, and for the further reason that the land is sought by the state in the exercise of its sovereign power and not by one to whom that power has been delegated:
Adirondack Ry. Co.
v.
New York State, supra; United States
v.
City of Tiffin,
*578 Compensation is also claimed for the value of defendants’ riparian rights. It is stipulated that Herman Creek is a private non-navigable stream. This creek, therefore, is part and parcel of the land through which it flows, and the value of defendants’ water rights therein was included in the verdict of the jury. It is not contemplated by statute that plaintiff be compelled to institute one proceeding to condemn defendants’ land and another to acquire their riparian rights in a private non-navigable stream flowing through the land appropriated. A deed conveying the land would certainly include riparian rights incidental thereto, unless they were specifically reserved.
Cross-appellants contend that the trial court erred in not dismissing the action for the reason that no offer nor attempt was made to agree with them upon the value of their property for fish culture purposes. It was not necessary to do so. Had such offer been made, defendants would have had just cause to complain. When land is taken for public use, the owner is entitled, relative to the question of compensation, to show all purposes for which it is reasonably adapted. It would have been error had the court limited the evidence merely to the adaptation of the land for fish culture purposes. The jury was properly instructed that the measure of damages was the reasonable market value of the land at the. date of the commencement of the action: State ex rel. v. Hawk et al., supra.
Prom a consideration of this record we are convinced, as was the trial court, that the only issue which should have been submitted to the jury was the amount of damages to be awarded defendants by reason of the taking of their land. Such issue, under *579 proper instructions of the court, was determined by the jury, and its findings in reference thereto are conclusive on this court. The judgment of the lower court is affirmed. Affirmed.
Rehearing denied September 22, 1925.
Addendum
On Petition for Rehearing.
(239 Pae. 193.)
Respondents and cross-appellants petition for an allowance of costs and attorney’s fees on appeal. Petition for rehearing or for modification of judgment is also filed. Costs follow the judgment affirmed. However, no cost-bill has been filed, and the matter is really not before the court for decision. In the lower court respondents were allowed $500 as attorney’s fees. An additional amount is sought in this court. We are not authorized by law to make such allowance, and the petition in that respect must be denied.
In the petition for rehearing or modification of judgment it is suggested that the decision of this court “does not state whether the amount of judgment awarded draws any interest nor the date
*580
from which interest is to be computed.” The decision settled all questions at issue under the pleadings. In reference to the matter of interest, see
Young
v. State,
The petition for rehearing or for modification of judgment is denied. Rehearing Denied.