
    [No. 18498.
    
      En Banc.
    
    March 18, 1924.]
    Longview, Portland & Northern Railroad Company, Respondent, v. S. A. Settle et al., Appellants.
      
    
    Eminent Domain (151) — Appeal—Decisions Reviewable — Ordee Granting New Trial. In condemnation proceedings, neither party can appeal until a final judgment for damages has been entered, in view of Rem. Comp. Stat., § 931, permitting an appeal only on the question of damages; hence no appeal lies from an order granting a new trial.
    Appeal from an order of the superior court for Cow-litz county, Kirby, J., entered October 1,1923, granting a new trial, after the verdict of a jury awarding damages in condemnation proceedings.
    Dismissed.
    
      Chester A. Sheppard and A. H. Imus, for appellants.
    
      Fish & McCarthy, J. H. Secrest, C. E. Lombardi, and Roscoe C. Nelson, for respondent.
    
      
      Reported in 223 Pac. 1058.
    
   Holcomb, J.

An order of necessity having been entered in favor of respondent in condemnation proceedings, a jury was summoned to determine the damages, a trial was had, and the jury returned a verdict awarding damages to appellants in the sum of $19,000. Thereupon respondent filed a motion to reduce the award to $8,000 on the grounds: first, that there was no competent evidence to substantiate an award of $19,000, or any other or greater sum than $8,000; and second, that the award was the result of passion and prejudice. Thereafter respondent moved for a new trial upon practically the same grounds. The trial judge, after having considered the matter some time, made a ruling that unless appellants should, within a stipulated time, consent to a reduction of the award to $15,500, a new trial would be granted. Appellants refused to accept the reduction of the award, and on October 1,1923, the trial court entered an order granting a new trial. From the order granting- a new trial, the defendants have appealed.

Respondents have moved to dismiss the appeal for the reason that this court has no jurisdiction of an appeal from an order granting a new trial in condemnation proceedings.

It is conceded by appellants that §§ 921 to 936, inclusive, Rem. Comp. Stat. [P. C. § 7646 et seq.] govern the method of appropriation of private property by private corporations for public use, and that § 931, supra, relates to appeals in such proceedings, which reads as follows:

“Either party may appeal from the judgment for damages entered in the superior court to the supreme court of the state within thirty days after the entry of the judgment as aforesaid, and such appeal shall bring before the supreme court the propriety and justness of the amount of damages in respect to the parties to the appeal; . . . .”

Appellants contend that an appeal which brings before the court the propriety and justness of the amount of the damages is proper and may be heard. They cite the following cases: Western American Co. v. St. Ann Co., 22 Wash. 158, 60 Pac. 168; State ex rel. McCormick v. Superior Court, 43 Wash. 91, 86 Pac. 205; State ex rel. Nelson v. Superior Court, 31 Wash. 32, 71 Pac. 601; Fruitland Irrigation Co. v. Smith, 54 Wash. 185, 102 Pac. 1031.

It is also urged that, under the above decisions, this court has jurisdiction of an appeal from an order granting a new trial in a condemnation suit.

In all the cases cited final judgment had been entered, or the court alluded to final judgments. In Western American Co. v. St. Ann Co., supra, we said:

“The right of appeal, in the absence of constitutional provision, .... is purely statutory; and while the courts have always sought, and probably ought to seek, to sustain the right of appeal, rather than to refuse it, it must be ascertained from the statute if such right is bestowed.”

The statute, which was the same then as now, was then quoted, and the opinion further said:

“If, as contended by appellant, the general statute in relation to appeals was intended to apply to these proceedings, the statement just quoted from the statute would have been unnecessary, for the appeal, in any event, would have brought before this court the propriety and justness of the amount of damages, which, as a general rule, is the real subject of the controversy; .... This is a special law, and was not repealed or affected in any way by the general law in relation to appeals. This court, in Seattle & Montana R. Co. v. O’Meara, 4 Wash. 17 (29 Pac. 835), held that the provision of the act of March 21, 1890, regulating appeals in condemnation proceedings, being a special enactment, is not repealed by the general statute of 1891, . . . .”

It was also held in the case quoted that the constitutional provision, art. IY, § 4, conferring on the supreme court appellate jurisdiction in all cases or proceedings, with certain exceptions, is not self-executing, but confers a power which is dormant until methods of appeal shall be prescribed by the legislature, or by the rules of the court itself. The reasoning in that case, as well as the former case cited in it, has been followed in many subsequent cases, a few of which are: State ex rel. Davis v. Superior Court, 82 Wash. 31, 143 Pac. 168; State ex rel. Washington Public Service Co. v. Superior Court, 86 Wash. 155, 149 Pac. 652; Ham, Yearsley & Ryrie v. Northern Pac. R. Co., 110 Wash. 467, 188 Pac. 527.

Appellants contend that, under the Washington statutes, the term “judgment” means final determination of the rights of the parties, and that it is not necessary that the judgment he formal or written.

It must he remembered that there is, so far, no final judgment entered in this case. The case is pending upon the order for a new trial. Had appellants accepted the order and award made by the trial court, the petitioning appropriator would have had a right to appeal from that final judgment when it had been entered, and had appellants accepted the award as made by the trial court, they would he estopped from appealing. Hence the appropriator has a greater advantage under the appeal statutes in condemnation proceedings than has the landowner, but that is the fault of the statute.

As was said in Olympia Light & Power Co. v. Tumwater Power & Water Co., 55 Wash. 392, 104 Pac. 778.

“No damages have as yet been awarded, and it is evident that no appeal authorized by the eminent domain act could he prosecuted by the original parties from the order here involved.”

See, also, North Coast R. Co. v. Gentry, 58 Wash. 80, 107 Pac. 1059; Chicago, Milwaukee & P. S. R. Co. v. Slosser, 82 Wash. 467, 144 Pac. 706.

There being no final judgment for damages entered in this cause, no appeal can he prosecuted by either party. The appeal must therefore be dismissed.

Main, C. J., Tolman, Parker, Fullerton, Bridges, Mackintosh, and Mitchell, JJ., concur.  