# State v. Higgins > Washington Supreme Court · January 2, 1969 · 75 Wash. 2d 110 URL: https://www.frixlaw.com/law-library/cases/9591056 ## Case - **Full name:** The State of Washington, Respondent, v. George W. Higgins Et Al., Petitioners - **Court:** Washington Supreme Court - **Decided:** January 2, 1969 - **Citations:** 75 Wash. 2d 110; 449 P.2d 393; 1969 Wash. LEXIS 712 - **Precedential status:** Published - **Opinion:** Concurrence by Neill - **Judges:** Neill - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9591056 ## Opinion text Neill, J. (concurring)—I am in accord with the result of the majority opinion, but feel constrained to write this concurring opinion as I do not agree with the analysis used by the majority in affirming the giving of the special interrogatory. In this instance, due to the stipulation of the landlord and the tenant, the inquiry to the jury as to the value of the parcel covered by the lease (as opposed to the value of the leasehold) is helpful to the trial court in its obligation to allocate the award at a subsequent hearing. Under these very limited circumstances, I see no harm in the court giving the special interrogatory. However, the discretionary power of the court to give the jury special interrogatories (Civil Rule for Superior Court 49(b), RCW vol. 0) should not be used to circumvent the statutory procedures in state eminent domain actions. There are divergent views on the procedure for allocating the award in an eminent domain proceeding. 1 Under one view there is a two-stage proceeding (not to be confused with the three-stage nature of the action, i.e., order of *119 public use and necessity, compensation, decree of appropriation) . A jury or court first makes a lump sum award for the value of the premises taken and, subsequently, the court or jury makes a division of that award among the claimants (owners). The other procedure is a single hearing at which the court or jury makes the award and also allocates it among the claimants. The legislature, in enacting statutes establishing eminent domain practices, had a choice of these procedures. It is not uncommon for states to use one procedure for certain types of governmental acquisition of private property and to use the other procedure for other governmental condemnation. See The Condemnation of Leasehold Interests, footnote 1, supra. The fact that the legislature may have chosen different procedures for state eminent domain actions than it has for schools, cities, counties, and other public or quasi-public bodies does not thereby give us conclusive evidence as to its intent. Rather, the true test of legislative intent is to be found in the legislative history of the enactment. When a statute is amended or superseded a material change in wording will give rise to the presumption that a change in purpose is thereby intended. Longview Co. v. Lynn, 6 Wn.2d 507 , 108 P.2d 365 (1940). Turning to the statutes under which the state is acquiring the land of appellants, we find: RCW 8.04.110 provides in part: [T]he jurors by their verdict shall fix as a lump sum the total amount of damages which shall result to all persons or . . . encumbrancers and others interested therein RCW 8.04.130 provides in part: Upon the entry of judgment upon the verdict of the jury or the decision of the court awarding damages, the state may make payment of the damages and the costs of the proceedings by depositing them with the clerk of the court, to be paid out under the direction of the court or judge thereof; and upon making such payment into court . . . the state shall be released and discharged from any and all further liability therefor .... RCW 8.04.140 provides: *120 Any person, corporation or county claiming to be entitled to any money paid into court, as provided in RCW 8.04.010 through. 8.04.160, may apply to the court therefor, and upon furnishing evidence satisfactory to the court that he or it is entitled to the same, the court shall make an order directing the payment to such claimant the portion of such money as he or it shall be found entitled to; but if, upon application, the court or judge thereof should decide that the title to the land, real estate or premises specified in the application of such claimant was in such condition as to require that an action be commenced to determine the conflicting claims thereto, he shall refuse such order until such action is commenced and the conflicting claims to such land, real estate or premises be determined according to law. RCW 8.04.110 is derived from Laws of 1925, Ex. Ses., ch. 98, which amended and superseded Laws of 1891, ch. 74. The title to each chapter makes it clear that the legislature was, in each instance, dealing with the state’s power of eminent domain and not any political subdivision thereof. The 1891 statute, insofar as pertinent here is: [T]he jurors at such trial shall make in each case a separate assessment of damages which shall result to any person, corporation or company, or to any county, by reason of the appropriation and use of such land, real estate, premises or other property, and shall ascertain, determine and award the amount of damage to be paid said owner or owners respectively, and to all tenants, incumbrancers and others interested for taking such land, real estate, premises or other property so taken. Laws of 1891, ch. 74, § 5. The 1925 amendment reads: [T]he jurors by their verdict shall fix as a lump sum the total amount of damages which shall result to all persons or parties and to any county and to all tenants, encum-brancers and others interested therein, by reason of the appropriation and use of the lands, real estate, premises or other property sought to be appropriated or acquired. Laws of 1925, Ex. Ses., ch. 98, § 2. It seems clear that the legislature deliberately chose to change the procedure for allocation of the award. It has *121 decided that the jury making the award is not to apportion that award. The use of the discretionary procedural device of a special interrogatory should not be used to change the clear duty of the jury as set forth in the 1925 statute. This is particularly true when we find that the Civil Rules in which CR 49 (b) is located also contain CR 81 (a): “Except where inconsistent with rules or statutes applicable to special proceedings, these rules shall govern all civil proceedings.” Eminent domain actions are special proceedings. It may be argued that a special interrogatory is supplementary only and that so long as the jury is instructed to find a single sum for the land taken the statute is satisfied. •But the danger of “doubling up of valuation” is too apparent. 1 Orgel, Valuation Under the Law of Eminent Domain § 109 (2d ed. 1953), has the following comment on this possibility, at 464: We venture to add our' opinion that, in many cases where the courts have stated that the total compensation must be based on a valuation of the land as if in single ownership, the juries have in fact taken account of the divided ownership in arriving at this very hypothetical value. And this supposition becomes more plausible when we consider that, though compensation is required to be assessed in one lump sum, the owners of the various divided interests are themselves parties to the condemnation proceedings and are permitted to introduce evidence of the values of their respective interests. (Footnote omitted.) The very result which has here created the need for a new trial is inherent from the fact that under such procedure the jury may be given evidence of the value of the various interests as well as evidence of the value of the fee. I do not think that it is deprecating jurors to express this concern. Here we have a relatively simple division of title, but the same principle must apply when the court is confronted with the case where the land is divided into future estates, terminable estates, defeasible estates, easements, licensees, and the many other interests which may be created in or carved out of realty. *122 Finally a most persuasive argument favoring division of condemnation valuation proceedings is that this allows the state to rapidly determine its total obligation and withdraw from the proceedings without awaiting final resolution of what may be a myriad of conflicting claims regarding apportionment of the award. Our cases establish the rule that once the total award is determined and the state pays that sum into court, then the rights of the parties asserting claims to the property are against the fund paid into court rather than against the state. State v. Hemmingson, 57 Wn.2d 635 , 359 P.2d 154 (1961). It is reasonable that the legislature intended to provide this time advantage to the state in all of its numerous condemnation actions. Once it is clear that our statutes require separate valuation and apportionment of damages, any interrogatory which allows the jury to apportion the award as part of the initial proceedings would be improper. In this case, however, the interrogatory only asked the jury to determine the value of the land covered by the lease. 2 The determination of the value of the lessee’s interest and the apportionment of the total award pursuant to the stipulation of the parties would still be done by the trial court as a separate matter. Under these particular circumstances, I cannot say that the statutory requirement of a 2-step proceeding was violated. February 24, 1969. Petition for rehearing denied. See discussion in The Condemnation of Leasehold Interests, 48 Va. L. Rev. 477 (1962); State Highway Comm’n v. Burk, 200 Ore. 211 , 265 P.2d 783 (1953). The special interrogatory given was: “What value have you included in the general verdict to represent the value of the property and improvements covered by the Otto Jacober lease on the wrecking yard?” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9591056. Public record. Not legal advice.