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T 0 DISMISS AN APPEAL IN A
CASE Because the Judge Who Tried it, Settled it After He Had Left Office. [Continued from Friday’s issue. J OPINION ON THE MERETS. This was a proceedin instituted by the appellant for the appropriation of certain lands for a right of way for its line of rail way, and to ascertain and determine the corn ensation to be made for such taking. The EBand Iproposed t) be taken was a strip one hun red feet wide through a larger tract described in appellant’s petition, and . therein alleged to belong to the respond- . ents. The pondents, in their amended answer, set $5 title and asked for damages : to the identical parcels of land. as described ‘ in the appellant’s petition, and for none ‘ other. Upon the trial respondents sought to recover damages to an eighty acre tract also owned by them, but which was not described in the pleadings in any way, and which the right of way in question did not touch. The claim for damages being based upon the fact that it adjoined the land described through which the right of way proposed to be taken did run, and that it all constituted one farm tract. _ Upon the offering of testimony by re spondents relating to such damages, the appellant objected to its introduction on the ground that the respondents by only alleging in their answer that they were damaﬁed in the lands there described. had Waived any right they might have had to recover what damages they may have suf fered in the balance of the tract, and that as no mention had been made or questions raised as to any such damage in any of the pleadings, such proof was inadlnissable thereunder. _ _ , _ , , , The court overruled the objection, and admitted the proof, and this is assigned as error. The respondents contend that the law does not require the petitioner to de scribe any land except that pro osed to be taken for the right of way itseijf, and that they were not required to answer at all, and that consequently they were entitled to offer proof of the damage to the whole tract, but we think this claim is untenable, under the circumstances of this case, how ever the law may be as to the description required to be set forth, or as to the plead lllgs required. Here the respondents did answer and raise an issue as to the amount 1n winch they would be injured, resulting from the damage to the particular tracts described in the petition. and which they described in their answer, and made no claim of damages to any othertract. Under such circumstances they should not have been allowed to prove that they were dam aged to a further extent by reason of dam ages resulting to this other undescribed tract of which the appellant had no notice so that they might be prepared to show the character and value of such other land and such other matters as would form a basis for the estimation of the amount of the damages resulting to it, if any. A point is made. As to the basis upon which the respondents were allowed to re cover damages which was the value of the land at the time of its appropriation. The appellant contends, and there was testi— mony to show, that this land was consider ably enhanced in value in consequence of this projected line of railway which was then in process of construction. The ap— pellant contends that this increased value which was due to the building of the very road for which the right of way through this land was sought, and to nothing else. should not have been taken into considera tion in estimating the damages. While the respondents claim that they were en titled to have this considered by virtue of Section 16, Article 1 of our state constitu tion which provides that compensation in such cases shall be ascertained “irrespect— ive of any beneﬁt from any improvement proposed by such corporation.” The posrtion taken by appellant is the cor rect one. The basis for the estimation of the damages is the value of the land as it would be at the tune of the appropriation if the road was not to be built. TJe con stitutional provision referred to only pro vides that the beneﬁts, if any, of the proposed improvements shall not be al - to offset or diminish the damages sustained. If the prospect of this ’ pro posed road had greatly enhanced the value of the respondent’s land, as claimed, it would be highly inequitable to require the appellant to pay damages upon the basis of this increased value when it would not be entitled to have the beneﬁt, if any. to the land eft taken from the value of the land appropriated. The reason for allow ing the land owner in such cases the bene ﬁts arising to the land not taken because he only receives such beneﬁts in common with other land owners in the vicinity can hardly be allowed to extend to the length of allowing him' to recover the increased value of the land taken, or of damages es timated upon that basis, to the land left. in consequence of the taking of the par ticular strip. The measure of damages would be the diii'erence in amount between the value of the tract as a whole, not in cluding therein the increased value, if any, occasioned by the proposed improvements, and the value of the land left, and not in cluding therein such increased value. J udgment reversed. Scorr, Judge. We concur: Anders. C. J.; Hoyt, J.; Stiles, J. . I am unable to agree with the reasoning of the majority, or with the conclusion reached by them. I think that the dis tinctions sought to be made are more fan ciful than real. The code provides that the court‘shall in every stage of an action disregard any error or defect in pleadings, or proceedings, which shall not effect the substantial rights of the adverse party, and that before the prevailing party shall be ut to the trouble and expense of a trial of his cause in the Supreme Court, that the statement of iacts shall be settled, and prescribes the manner in which it shall‘be settled. This is a protection given by law to the respondent, and he is as much justi fied in insrsting on this right as any other. If a complaint does not state facts sufﬁ cient to constitute a cause of action, the party defendant has a perfect right to demur to it, albeit it tends to prevent a hearing on the merits. and the demurrer will be subjected to the same test under the code that any other pleading will, for the law makes them equally proper pleadings. When a demurrer is waged, a liberal construction it is true Will be given to the complaint, but it does not follow that an illiberal construction must be given to the demurrer; and so with re gard to a motion. If the law has been substantially complied with. the motion must be denied, but there is no back-action inﬂuence supposed to operate against the motion, and if it substantially complies with ths requirements of the statute, and the opposite party has not been mislead, must be held sufﬁcient for it 1s aproced ing in a certain stage of an action, and falls consequently within the provisions of the code. In this instance it can not be said that the appellant was misled. It was evident by the motion that ‘ respondents objected to a hearing on the 3 merits for the'reason that an ex-judge had signed the certiﬁcate to the statement of facts, instead of the de facto judge. It is true that the respondents ask to have the appeal dismissed, but the thing objected to was a consideration by this court of an al— leged statement of facts. Thaswas the sub ject discussed, this was the pornt on winch authorities were cited. The reasons given in the motion itself notify the appellant as plainly and certainly as though the motion had been denominated a motion to strike the statement of facts, and to hold that such a motion shall not avail a party who has a valid defense to this appeal, is too much like chasing the shadow at the ex pense of allowing the substance to escape. R. O. DUNBAB, J. T. J. ANDRES, C. J. [hen Baby was sick, we gene he:- Castoria. When she was a Child, she 01 led for Castoria. 'When she became Miss, she dung to Castoriu. When she had Children, she gave them Cast/Orin. Cheap Rates. For cheapest rates to St. Paul, Milwau kee, Kansas City, Chicago and all points East and South, 3'1)?le to J. O. Percival, agent Union Paciﬁc .R. n24tf, I a Chrl stmaS———-*—>’sr P I g re mI u ms. °sls~ —_...___._ —_—__—_ ______‘ _o__,. THE PRICE IS GOING UP. _O_— The WEEKLY TRIBUNE will be great ly improved and on January Ist, 1892, the subscription price will be raised from $1.50 to $2- PER YEAR- Until that time, special inducements will be offered to new subscribers, and those who desire to renew before their subscrip. tion expires, WE 'WILL GIVE PREMIUM N'O. I. The WEEKLY TRIBUNE for one year to any person who will bring in three new subscriptions. mo— . l ‘ PREMIUM NO. 2. Any person bringing in six new subscrip tions, will receive a $2. Pocket Knife, or any other article 6f the same value, to be selected from the stock of any Olympia merchant who advertises in the TRIBUNE. __.__o_.___ PREMIUM NO. 3. To any person bringing in ten new sub scriptions, we will give a course of one term in Stenography, or one term in the Gram mar Course, at the Olympia Collegiate In stitnte. ... -o. PR EMI U M NO. 4 To any person bringing in lifteen new subscriptions. we will give one term in the College Course,Normal Course, Commercial Course, Musical, Elocution or Art, at the Olympia Collegiate Institute. ___o__ PREMIUM NO. 5, To any person bringing in twenty-ﬁve new subscriptions, will be given two terms in any one course, or one term in any two courses at the Olympia Collegiate Institute, or a Silver Watch to the value of sls. Pre miums Nos. 4 and 5 can be transferred to any person designated by the one bringing in the new subscriptions. ~ 433. o The WEEKLY TRIBUNE contains the news of the week from all parts of the world. It is brim full and boning over with bright, crisp items of interest to the house-wife, the merchant, mechanic, farmer, laborer, student and professional man. PER YEAR —— , $l -50 WIN ADVANCE. $ I -50- ”Make all remittances to the TRIBUNE PU B. CO. Olympia, Wash. 1 . . ? ACIFIC RY. SAVE $5.00 to SIO.OO. Arrangement-s have now been completed between this company and the B. B. & B. C. Ry. 00. whereby passengers to and from Puget Sound ports and pacints south will be sent via our Mis sion ranch, which extends fromHMission Junction, on the Main line, to untinﬁ don, on the boundary, and the B. B. & .' C. Ry., which extends thence to New What com, Wash. Daily service between all upper Puget Sound points and New Whatcom. Canadian Paciﬁc Railway’s Royal Mail Steamship line—« China and Japan. E fChina Sails Dec. 16 from Vancouver, B. C. For full particulars call on or write D. E. Brown, Assistant General Passenger Agent, Vancouver, B. C., or A. W. Wlsner, Agent, Chilbcrg Block, Main at, Olympia. A FREE TRIP —'ro urns— WOR LD’S E ‘AIR COMMENCING MAY 1, 1893 The History Company of San Francisco Cal. (capital stock $500,000) the oldest and largest publishing house on the Paciﬁc Coast, this day announce that they will give. ABSOLUTELY FREE, a ticket to the World's Fair and return, including meals enroute'one week (7 days) hotel accommo dations, six admission tickets to the expo sition grounds, two tickets to leading Chicago theatres and such other grivdeges as may insure a pleasant trip, to_ eserving persons, who comply with their require ments. NOTICE Those desiring to go to the World’s Fair and who coul not otherwme do so, can ad dress us at once for full particulars. This offer does not apply to persons of means who are in a position to meet the expenses of such a trip themselves, but to enterpris ing, intelligent young men and women who can appreciate such an opportunity and , make the most of it. Teachers, clergdymen, students, farmers’ bright sons and augh ters, in fact any all possessing energy, en terprise and character will be eligible. THE CHANCE or A LIFETIME. Every voung man or woman who desires to go to Chicago and see the wonders of the greatest exhi itions the world has ever knownz should address us at once. Such an opportunity is rarely offered and the trip will be the event of a life time to those Who go. Address . « ; THE HISTORY COMPANY , run msrcmr BUILDING 723 Market St, San Francisco, Cal. OLYMPIA. WASHINGTON, WEDNESDASE’, 30139. 16, 189 i. FROM TERMINAL 0R INTERIOR POINTS —-—-'rrm——- Northern Paelflc R R. rs THE LINE TO TAKE TO All. POINTS EAST and SUUI H. It is theDiuin€ Car route. .It runs through Vestibu ed Trains every day in the year to ‘ ST. PAUL AND CHICAGO (no CHANGE or CARS.) Composed 0t Dining Cars, unsurpassed, Pullman Drawing Room Sleepers ‘ of latest equipment. 1 ...... ‘TOURISFS SLEEPING CARS. 1 Best that can be constructed and in which accommodations are both FREE and furnished to holders of ﬁrst and second class tickets and ELEGANT DAY COACHES. ._o—- A continuous Line connection with Line all affording . q . . Direct: Umnterrupted Semce. Pullman Sleeper reservations can be se cured in advance throuvh any agent of the road". THROUGH TICKETS To and. from all points in America, Eng land and Europe can be pur chased at an; TICKET OFFICE OF THIS COMPANY. ———O—. Full information concerning rates, time of trains, routes and other-details furnished on application to any agent, or: A. D. CHARLTON, Assistant General Passenger Agt., No. 121 First st... cor. Washington, Portland, Oregon' 1“. P. REYES, Agent. Olympia. Wash E. C. BICKFORD & 00., NEW AND SECOND HAND GOODS ’ Bought and sold for cash. See our prices be fore buyin‘ﬁ. Corner Fourth and Columbia sts., Olympia, ash. JOHN conxrsn c. z. mason, a. s. HAMLEN, Pres-Gen. M'an. Superind't See-Trees. THE PUGET SOUND PIPE COMPANY Sole proprietors and manufacturers of Horton s patent thin shell wood water pipe. Banded to stand any de sired pressure. Guaranteed to be more durable than iron pipe in the market. Olympia,any Washington. OREGON IMPROVEMENT, 00., *OPERATING run— _—o___. Time Card to take effect Sunday Nov. 1. —._——o———. NO. 1. 1eave...............01'mp‘a...........,9:40 n. m. Arrive...............Ten1u0............10:30a.m. NO. 2. Leave...............Ten1n0............]0:50 a. m. Arrive...............01ympia...........11:50 a. m. NO. 3. 1."we...............01ympia............32501). m. Arrive...............Ten1n0.............4:50p.m. NO. 4. Leave................Tenin0........,...5:05p. m. Arrive..............01ympia............5:55p,m. __o— 1 and 4 run daily. Nos. 2 and 3, daily ex 05ft Sunday. _ i ‘he morning train makes close connection ‘with the Northern Paciﬁc train train Tacoma .to Portland, and the evening train connects 1 with the train from Portland to Tacoma. 1 J. C. PHELPS, ; _ Ass 1*... Supt w _-AT__ T UM W A TER. \ ___o__._.. 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