White v. Stout

Citations

• 72 Wash. 62
• 129 P. 917
• 1913 Wash. LEXIS 1404

Syllabus

<p>Appeal — Decisions Reviewable — Costs—Retaxation. An order refusing to retax costs is not appealable.</p> <p>Eminent Domain — Proceedings — Separate Actions — Necessity. In an action to quiet title, to restrain a trespass, and to enjoin the use of irrigating ditches across the plaintiff’s land, the defendant having the right to condemn a right of way for irrigation, may set up the same by way of defense to plaintiff’s demand for an injunction, and have the damages ascertained without resorting to a separate condemnation proceeding.</p> <p>Same — Proceedings—Damages—Right to Jury Trial — Demand. In such a case, plaintiff cannot allege error in that he was deprived-of a jury trial to ascertain his damages for the condemnation, where he did not demand a jury trial, in view of his election to proceed in equity for an injunction instead of at law in ejectment.</p> <p>Same — Proceedings—Decree—Payment of Award and Costs Before Taking. A suit for an injunction to prevent the use of irrigation ditches, in which the defendant set up as a defense his right to condemn, and plaintiff’s damages therefor were awarded, with plaintiff’s costs of suit, plaintiff cannot object that a decree enjoining the plaintiff from interfering with the ditches, upon defendant’s paying the damages into court, authorized the taking without prior payment of the damages, including costs, in view of the rule that the compensation must be first paid into court and includes the costs, which defendant concedes must be paid prior to decree of appropriation.</p>