Postal Telegraph-Cable Co. v. Northern Pac. Ry. Co.

(dissenting). The defendant in error being the owner of a right of way between the city of Seattle and Sumas in the state of Washington, a distance of about 120 miles, over which it operates its line of railway, the plaintiff in error commenced this proceeding in the court below to condemn a right on and over the railway *829 right of way upon which to maintain and operate a telegraph line, which it was authorized to do by virtue of the laws of that state.

In its petition for such condemnation the telegraph company alleged, among other things:

The question as to what the telegraph company should be required to pay the railway company for the right thus sought came on for trial in the court below before a jury, resulting in a verdict in favor *830 of the railway company for $15,000, upon which verdict a judgment was entered giving the telegraph company the right sought upon the payment to the railway company of that sum, with costs. The case is brought here by the'petitioning company by writ of error.

It shows that when the proceeding was instituted the railway company had an exclusive right to use the strip of land constituting its right of way for railroad purposes. To the…

(after stating the facts as above). [1-4] Error is assigned to the ruling of the trial court in excluding certain testimony offered in rebuttal by the plaintiff in error. The testimony was excluded on the ground that it was part of the petitioner’s case in chief,-and not proper rebuttal testimony. It is not disputed that the law of Washington places upon the petitioner in a condemnation suit, such as this, the burden of showing the reasonable value of the easement sought to be appropriated, and the damage or absence of damage to the remainder so as to present the evidence of the compensation that should be paid to the defendant. The law of that state does not require the defendant in such a suit to file an answer, and he may show the value of the land taken and the damages he will sustain without having presented in any pleading the facts on which he relies. State ex rel. Ami Co. v. Superior Court, 42 Wash. 675 , 85 Pac. 669 ; Tacoma v. Wetherby, 57 Wash. 295 , 106 Pac. 903 . In pursuance of that law, the defendant herein filed no answer to the petition. Assuming the burden thus imposed upon it by the statute, the plaintiff in error called witnesses to answer the question:

The…