Milwaukee Terminal Railway Co. v. City of Seattle

Citations

• 86 Wash. 102
• 149 P. 644
• 1915 Wash. LEXIS 1185

Syllabus

<p>Appeal — Decision—Law oe Case — Dicta. Where two issues are presented, decided by the supreme court, the decision on one issue cannot be said to be dictum merely because the decision might have rested on the other.</p> <p>Eminent Domain — Taken or Damaged. The right to make a fill and slope upon lands abutting on a street, is a “damaging” of the property, as distinguishable from a “taking,” as used in Const., art. 1, §16; since where both terms are used, “damaged” covers injuries where there is no direct taking of the land itself.</p> <p>Same — Compensation •— Damages — Evidence — S ufsicienc y. In eminent domain proceedings to condemn the right to fill abutting lands to support a street, in which the court instructed the jury that, in determining the damages, it must be assumed that the defendant would have no right to remove the fill, evidence of two experts that there would be no damage, based on the assumption that the defendant could remove the fill, is insufficient to sustain a verdict of no damages, as the instruction became the law of the case; especially where defendant’s evidence showed actual damages in a substantial sum, and the city filed no stipulation conferring upon the defendant the right to excavate the fill and support the street by a retaining wall or abutment.</p>