, 1892-06-29
4IALORDERED

[All decisions of the supreme court will
appear in The DAILY and WEEKLY TRIB
UNE.
Seattle & Montana Railway Co., Petitioner
and Appellant VS.. Samuel S. Murphine
and Emma J.. Murphine, Respondents
No. 348. Filed June a. 1892.
This was proceeding by appellant to
appropriate a strip one hundred feet wide
across the lands of respondents for the
purposes of right of way for its railroad.
The land consists of single enclosure con-
tanning about twenty-five or thirty acres.
1t lies in the valley OF the Stilaguamish
river, In SnOhom1sh county, and is low
and level agricultural land and especially
adapted to the raising of hay, for which
purpose it seems to have been used for
several years. It was also used as pasture
for stock during several months Of each
year. Appellants right Of way passes
across the tract in such a manner as to cut
off about three acres from the east side
thereof, and the grade of the railroad
thereon is shown to be about four feet in
height. The three acres thus detached
from the main body of the land is an
angular, wedge-shaped piece. On it is
situated spring from which the re-
spondents procured water both for domestic
purposes, and for stock by means of an
open ditch two and a half feet deep and
eighteen or twenty inches wide. The
right of way lies between the spring and
the dwelling house and other improve
ments of respondents, and the railroad en-
bankment would naturally obstruct the
How of water through the ditch. But the
railroad company stipulated and agreed to
construct culYert across the right of way
three feet wide and four feet high UNDER
meath its road bed, and the respondents
should have the privilege Of putting and
maintaining water pipe therein for the
purpose of conducting water from the
spring to the premises of respondents in
the place occupied by the open ditch and
the respondents likewise agreed to con-
struct and maintain said water pipe so as
not to interfere in any way with the rights
OF the company in and to the right of way
sought to be condemned.
The amount of land included in the right
of way seems, from the evidence, to be q
little less than two acres. AT the trial the
jury rendered a verdict in favor ofrespOnd-
ents awarding damages in the sum of $1148,
and Judgment was rendered accordingly,
The petitioner brings the case here for re-
view
At the beginning of the trial both the
petitioner and the respondents claimed ths
right to open and close the case. The court
decided in favor of the respondents, and
that decision of the court is assigned as er-
rOr.
Upon the question whether. in cases of
this character, the petitioner has the right
to open and close, the decisions of the
courts of the various states are not uniform
Where not controlled by statute, the courts
all base their decisions on the general prin-
clple that the party on whom rests the bur-
den of proof is entitled to begin and reply.
The majority of the cases seem to hold that
the burden ofproofis upon the land owner,
and consequently give the opening and
closing to him. In this state, no private
property can be taken or damaged for pub
lie or private use without Just compensa-
tion being first made or paid into court for
the owner, and no right of way can be ap-
prOpriated to the use of any corporation,
other than municipal, until full compensa-
ton therefor be first made in money, or as
certained and paid into court for the owner,
irrespective of any benefit from any i'm
provement proposed by such corporation,
which compensation must be ascertained
by jury, unless a jury be waived as in
other civil cases In courts of record, in the
manner prescribed by law. Sec. 16, Art. 1,
Constitution
The proceeding must be inaugurated by
the party seeking to appropriate the land.
This is done by presenting to the superior
court Of the county in which the land is
situated, or to the judge Of such superior
court in any county where he has jurisdic-
ton or is holding court, petition describ-
ing the land and premises sought to be ap-
prOpriated With reasonable certainty and
setting forth She name Of each and every
owner or other party interested in the same
so far as the same can be ascertained from
the public records, and the object for
which the land is wanted, and praying that
jury be impanelled to ascertain and de-
termlne the compensation to be made in
money to all persons intert tied, irrespect-
i've of any benefit from any improvement
proposed by such corporation, or if jury
be waived, then that the compensation to
be made be ascertained and determined by
the court or judge thereof. Notice is given
to the owner and other parties interested
IN the premises sought to be appropriated
of the time and place when and where the
petition will be presented to the court or
judge; and at the hearing Of the petition,
if the court is satisfied that the contem-
plated use for which the land is sought
to be appropriated is public use and that
the public use requires the prosecution of
such enterprises, and that the land sought
to be appropriated is necessary for the pur-
poses of such enterprise, jury is sum-
moned by order of the court to assess the
damages. Laws of 1S89-90, p. 294.
From the above provision of the statute
1t will be seen that the corporation seeking
the condemnation of land for its corporate
uses is required to bring the land owner
into court in a certain prescribed manner
and to show that the use for which the land
is sought to be appropriated is public use,
that the public interest requires the prose-
cution of the enterprise in which it is en-
gagged, and that the land sought to be ap-
prop dated is necessary for the purposes of
such enterprise. AS to all of these matters
the burden of proof is, of course, upon the
petitioner. Having gone thus far, and hav-
ing come to the question of the amount of
damages, does the burden of proof shift to
the land owner, or remain with the petit
tloner2 Our statute provides that witness
es may be examined by either party to the
proceedings, but no answer or plea is re-
quired to be filed to the petition, in any
case.
In contemplation of law, therefore, the
amount to be paid is to be determined upon
the petition alone, without formal plead
ings or issues. No formal pleadings or is
sues being contemplated or required by
the statute, in order therefor to determine
which party ought to open and close, it is
necessary to consider what is the substan-
tial issue to be esf~ dshed and on which
party is to be imp ed the burden of estab-
The substantial fact to be determined, in
this class Of cases, is not whether the COM
pensatiOn is more than the petitioner
comedies to be just, or is willing to pay,
as some of the cases would seem to
hold, nor whether the compensation to be
made is less than the owner of the land is
willing to receive, but simply what is full
compensation.
The question of damages cannot be tried
upon the claim or demand of the land own
er. The proceedings is not an action by
him to recover damages for land actually
taken, but is a proceedings instituted by
the petitioner to ascertain what is a full
compensation for the taking or injuriously
affecting the land and before the land can
be taken at all the petitioner must proceed
afirmatiYely and have the amount of COM
pensation "ascertained and determined"
according to law, or not succeed in the ap-
preparation. If no proof should be offered
the petitioner would be defeated and the
proceedings would be dismissed. And
this being so. the netitioner had the right