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itself grant the city the right to take any part of respondent's property without compensation.

sheds owned by respondent, and was about, width in front of her property did not of to occupy the premises of respondent to the extent of 30 feet from the center line of the road; whereupon this action was begun to restrain the city from taking more than 15 feet from the center line of the road.

The appellant contends that the petition requesting the county commissioners to fix the width of the road at 30 feet, and the order of the commissioners fixing the width thereof at 40 feet, were void because no notice was given. It is conceded that proper notice of the relocation of the road was given as required by law, and that the petition was silent as to the width of the road. The statute then in force provided that "all county roads shall be sixty feet in width, unless the county commissioners shall, upon the prayer of the petitioners for the same, determine on a less number of feet in width." Section 2979, Code 1881. Under this statute, where no width was fixed by order of the board of county commissioners, the statute fixed the width at 60 feet. Town of Summer: v. Peebles, 5 Wash. 471, 32 Pac. 221, 1000. Under the petition for relocation, the board of county commissioners had jurisdiction to fix the width at 60 feet. The board also had. jurisdiction to fix the width at less than 60 feet. upon the prayer of the petitioners. While the record in this case does not show

that the petitioners who asked to have the width fixed at 30 feet were all of the original petitioners, it does show that they were interested in the road, and no objections appear to have been made to the order as made by the county commissioners. Since the board of county commissioners had jurisdiction to act upon the petition and to grant the whole of the 60 feet, we are of the opinion that the board had power to fix the width of the road at any number of feet less than 60, upon the prayer or request of any of the petitioners at the hearing. The statute did not require the petition or notice to state the width of the proposed road, but to state only "the place of beginning, the intermediate points, if any, and the place of termination of said road." Section 2871, Code 1881. A new notice therefore would have afforded no more information to the public than the old notice had given. We are also of the opinion that the board of county commissioners were not bound by the prayer of the petitioners. The board, having acquired jurisdiction to establish or locate the road, might use their own judgment and fix the road at such width less than 60 feet as the circumstances and facts seemed to warrant. This being so, it follows that the road laid out in 1863 was altered by the relocation of the same road in 1879, so that thereafter the road was only 40 feet in width. The appellant was therefore not authorized to take the property of the respondent more than 20 feet from the center line of the road. The fact that the respondent signed the petition to the city council to open a road 60 feet in

The judgment of the trial court appears to be right, and is therefore affirmed.

HADLEY, C. J., and ROOT, CROW, and FULLERTON, JJ., concur.

(46 Wash. 624)

LECHMAN v. MILLS et al. (Supreme Court of Washington. July 26, 1907.)

1. EASEMENTS-EASEMENT BY PRESCRIPTIONADVERSE CHARACTER OF USE.

Where the use of an easement in land for the maintenance of a canal has continued over 25 years, it will be presumed to have been adverse, unless it is explained to have been otherwise.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17. Easements, § 89.]

2. SAME-EASEMENT PRECEDED BY VOID ORAL

GRANT.

The use is not deprived of its adverse character, or rendered merely permissive for the purposes of the statute of limitations, because preceded by an oral agreement amounting to a grant but void under the statute of limitations. [Ed. Note. For cases in point, see Cent. Dig. vol. 17. Easements, §§ 23, 24]

Appeal from Superior Court, Kittitas County; H. B. Rigg, Judge.

Action by Thomas Lechman against J. L. Mills and others to enjoin the maintaining of a canal. From a judgment for defendants, plaintiff appeals. Affirmed.

John B. Davidson, for appellant. Carroll B. Graves and J. II. McDaniels, for respondents.

HADLEY, C. J. This action was brought to enjoin the defendants from keeping and maintaining a canal on and across certain lands which the plaintiff claims to own, and also from overflowing with water any portion of said lands by means of said canal together with dams or dikes. Following largely the order of statement found in the brief of respondents, we believe the following is a fair statement of the facts in the case: In the year 1879 one Briggs was the occupant but not the owner of the land over which this controversy exists, and which land the plaintiff now claims to own. At that time it was believed the land would be included within the limits of the grant to the Northern Pacific Railroad Company when those limits should be determined by the adoption of the line of definite location of the road, such adoption not then having been made. Briggs expected to purchase the land from the railroad land from the railroad company as soon as the latter acquired the title and was in position to make a so'e and conveyance; but the land was then a part of the public domain, and Briggs was a mere occupant. While such was the situation, Mr. Mills, one of the defendants in this action, con

structed a water ditch and pond on part of said land to serve the purposes of power for the operation of a sawmill. The ditch led from the Yakima river down to a depression upon the land now claimed by the plaintiff, and by means of dikes and dams, together with the natural topography of the ground, the water was impounded in a lake or pond, a part of the land so flooded being a part of the land now claimed by the plaintiff. The lower end of the pond was upon land owned by Mills, and the water which flowed into the pond was released through an outlet upon the land of Mills. Mills also constructed a sawmill, and the water so impounded developed the power for the operation of the mill. Prior to the construction of the ditch, reservoir, and mill said Mills entered into an agreement with Briggs, the real nature of which is in issue.

The plaintiff contends that it was a mere permission or revocable license to Mills to to construct and maintain the ditch and reservoir. The defendants contend, and the trial court found, that it was a verbal grant from Briggs to Mills of the right to construct and maintain said works upon the land. It is not disputed that Briggs at that time and as a part of the agreement undertook and promised to execute a deed as soon as he should obtain title from the railroad company. But the plaintiff claims that Briggs, in making the agreement, did not intend to give a deed without first being paid a further consideration in money, no amount being stated, but the amount to be subsequently fixed by further agreement. The defendants contend that this verbal agreement contemplated, so far as a verbal agreement could, an absolute and perpetual grant. Mills has continued to operate his sawmill by means of the water so stored from the time of said construction up to the present time. In 1882 he granted to Hutchinson and Dreisner a one-half interest in the said power for the purpose of operating a flourmill which was then by them erected. The said flourmill, together with the said conveyed interest in the water power, has by mesne conveyances passed to the defendants Kendall and Mack. The Northern Pacific Railroad Company deeded the land to Briggs in 1887, and he continued to own and occupy all of the land, except that occupied by the canal and reservoir, until October, 1898. During all of said time the defendants and their predecessors in interest continued to maintain the canal and reservoir and to impound the water therein and to utilize the power for the operation of said mill plants. In October, 1898, Briggs executed to the Sullivan Savings Institution an instrument in the form of a deed purporting to convey to said grantee the title to said land. The plaintiff derives his title through said Sullivan Savings Institution. This action was brought in January, 1906, to en

join the defendants as aforesaid from further maintaining the ditch and reservoir. The cause was tried before the court without a jury, and judgment was rendered for the defendants to the effect that they have a perpetual easement against the plaintiff and all persons claiming or to claim through or under him. The plaintiff has appealed.

Finding No. 2, as entered by the court, is as follows: "That just prior to the construction of said works the said defendant, Mills, entered into an agreement with one Wilkin Briggs, who was then the occupant of the land hereinabove described, which land is claimed by the plaintiff, wherein and whereby the said Mills undertook and agreed to construct said canal, dams, reservoir and sawmill, and the said Wilkin Briggs, in consideration of said undertaking and agreement of said J. L. Mills, gave and granted to said J. L. Mills verbally a perpetual right of way over and upon said land for said canal, ditch, and reservoir, togeth

er with the right to construct and forever maintain said canal, ditch, reservoir, and dams upon said land and to convey said water through said ditch or canal into said reservoir and to impound said water in said reservoir and overflow the land occupied by said reservoir in order to make the required head of water for the operation of the mills that were to be run by said power. That at that time the said Wilkin Briggs had no title to the land now claimed by the plaintiff, but the same was then a part of the public domain of the United States, but it was then supposed that the same would be included within or covered by the land grant to the Northern Pacific Railroad Company as soon as the route of said company's railroad should be definitely located through said county, and the said Wilkin Briggs then expected to eventually purchase said land from said company. And at the time of said verbal agreement between the said Wilkin Briggs and the said J. L. Mills the said Briggs verbally agreed to execute and deliver to the said J. L. Mills a deed evidencing said grant of said right of way and easement upon the demand of said J. L. Mills as soon as the said Briggs himself received a deed to said land; and the said Briggs then and there waived any and all other or further compensation on account of the construction and maintenance of said works and for the overflowing of said land." It was further found that Mills thereafter constructed said works and sawmill and entered into the enjoyment of the casement and of the rights thus verbally granted to him openly, notoriously, and adversely as against Briggs and all other persons under claim of right and with the full knowledge and acquiescence of Briggs; that all of said construction was made in reliance upon, and on the faith of, the easement so granted and of the right to construct and perpetually maintain said works and conduct water through

said canal and impound the same at an expense of $10,000, all of which was known to Briggs, who, during all the time of his occupancy, acquiesced in the claim of Mills and never disputed or denied it; that the grantees of Mills, who held the flouring mill power, in like manner relied upon the right to perpetually use said water and power and perpetually maintain the reservoir, and by reason thereof they constructed their flourmill at an expense of $8,000, all of which was known to Briggs during the time of his occupancy and claim of title to any of said land, and he never denied or disputed said rights, but always acquiesced therein. Errors are assigned upon the findings, but we think they are sustained by the evidence.

The findings establish that the agreement made by Briggs with Mills was not a mere revocable license or permission to occupy, but that it was intended to operate as a grant to be confirmed by deed when Briggs acquired the title so that he could convey it.

by permission does not affect the prescriptive right, if it has been used and exercised for the requisite period under a claim of right on the part of Mr. Simpson and his heirs and their grantees. If the use of a way is under a parol consent given by the owner of the servient tenement to use it as if it were legally conveyed, it is a use as of right. Gould, Waters, § 338; Washburn, Easem. (2d Ed.) 127. The plaintiffs have used the ditch as if it had been legally conveyed to them, that is, they have exercised such acts of ownership over it as a man would over his own property, and the court must presume, in the absence of any evidence to the contrary, that the settlement was a parol consent or transfer by Mr. Jackson to Mr. Simpson of the right to use the ditch, and hence it was a use as of right." The facts in this case clearly show

continuous adverse use by respondents and their grantors under claim of right for more than a quarter of a century. This establishes their title by prescription, and we find it unnecessary to discuss other reasons suggested in support of their title.

We believe it is unnecessary to discuss the testimony in detail, since we are satisfied that it establishes the intention to make an absolute grant the consideration of which was the construction and operation of the mill at that place. The use of the premises was thus initiated, and it continued uninterruptedly for more than 25 years, until this suit was brought. Such use must now be presumed to have been adverse, unless it is explained to have been otherwise. "Where the use of an easement has continued for the prescriptive period unexplained, it will be presumed to have been adverse, unless it is of such a character or the circunstances attending it are such as to show that it was a mere privilege enjoyed by leave of the landowner." 23 Am. & Eng. Enc. of Law, 1202. Moreover, the use was not deprived of its adverse character or rendered merely permissive for the purposes of the statute of limitations, by a showing that it was preceded by an oral agreement amounting in terms to a grant but void under the statute of limitations. "It is generally agreed that use of an easement under claim of right by virtue of a parol grant may be adverse so as to give it title by prescription, although the parol grant itself is void under the statute of frauds." 23 Am. & Eng. Enc. of Law, 1198, and cases cited. The following from the opinion in Coventon v. Seufert. 23 Or. 548, 32 Pac. 508, may also be set forth as pertinent to this subject: "An easement cannot be granted by parol; yet. if Mr. Simpson purchased from Mr. Jackson the right to use the ditch, and used the 1. RAILROADS - FIRES - ACTION same for 10 years, and such use was acquiesced in by Mr. Jackson and his grantees, it would be such an exercise of the easement, under a claim of right, as to give a prescriptive right to the same. It is no objection to granting an easement by prescription that the same was originally granted or bargained for by parol. That the use began

Appellant claims a reversal in any event on the ground that the decree is too broad inasmuch as it quiets the title to all the land covered by water from the canal, dams, and reservoir, as the same existed at the time of the decree. It is argued that there was no attempt in the pleadings or evidence to define the boundaries or to ascertain with any degree of exactness the extent of the user by respondents. We are unable to see any merit in this contention. The decree is limited to the "reservoir, dams, and dikes, as the same are at present maintained over and upon the land of the plaintiff." There is no suggestion in the record anywhere that the area involved is not the same that it has been during all the years; and, no suggestion to the contrary having been made in the court below, and the cause evidently having been tried throughout upon that theory, we find no error in the particular mentioned.

The judgment is affirmed.

CROW, MOUNT, and FULLERTON, JJ.,

concur.

(46 Wash. 635) FIREMAN'S FUND INS. CO. v. NORTHERN PAC. RY. CO.

(Supreme Court of Washington. July 26, 1907.)

-SUFFICIENCY.

EVIDENCE

Evidence in an action against a railway company for loss caused by a fire escaping from the right of way held to sustain a verdict for plaintiff.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1730-1736.]

2. SAME-INSTRUCTION.

In an action against a railway company for loss caused by a fire escaping from its

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Where, in an action against a railway company for a loss caused by a fire escaping from its highway, the matter of negligence in the use of defective appliances was squarely within the issues made by the pleadings, and the company introduced evidence upon the subject, it could not complain that the court erred in instructing thereon, though the subject was eliminated by concession at the trial.

4. RAILROADS-FINES-COMPANY'S DUTY.

A railway company must exercise reasonable care to keep its right of way at points adjoining the private property of others free from combustible materials liable to become ignited from passing trains.

[Ed. Note. For cases in point, see Cent. Dig. vol. 41, Railroads. §§ 1673. 1675.]

5. SAME-DEFECTS IN ENGINE.

Where grain is burned by a fire originating on a railway right of way through sparks escaping from a passing engine and spreading to the field, it is immaterial to the company's liability whether the engine was improperly equip ped.

6. SAME MANAGEMENT OF ENGINE.

As to the liability of a railway company for loss caused by fire originating on its right of way through sparks from a passing engine spreading to an adjoining field, it was immaterial whether the employés in charge of the engine were careful or negligent in operating it.

Appeal from Superior Court, Lincoln County; W. T. Warren, Judge.

Action by the Fireman's Fund Insurance Company against the Northern Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Edward J. Cannon, for appellant. H. N. Martin and O. C. Moore, for respondent.

HADLEY, C. J. This action was brought to recover damages on account of the destruction by fire of standing wheat in an open field. One Nichols was the owner of the wheat, and the field adjoins the right of way of the Northern Pacific Railway Company. The complaint alleges that the fire was due to the negligence of the railway company. The suit was brought by the Fireman's Fund Insurance Company against the railway company, and said Nichols was also joined as a party plaintiff. The insurance company had, prior to the fire, issued a policy of insurance to Nichols to protect him against loss by fire in the wheat. After the fire the loss was adjusted, and the insurance company paid Nichols $322.57 on account of the loss. The insurance company, claiming that it is entitled to be reimbursed by right of subrogation, then brought this suit against the railway company. At the trial any claim in favor of Nichols was dismissed. The complaint charged negligence of the defendant in permitting a large amount of dry, combus

tible material to accumulate on its right of way at the point where the right of way adjoins the premises of Nichols, also that the locomotive appliances were defective, and that sparks were, by reason thereof, permitted to escape, causing the fire. Negligence was denied. The cause was tried before a jury, and a verdict was returned against the railway company for the exact sum which the plaintiff company paid Nichols on account of said loss. Judgment was entered in accordance with the verdict, and, the defendant's motion for new trial having been denied, it has appealed.

Appellant first assigns error in that judgment was entered against it and that its motion for a new trial was denied. It is argued that the evidence is insufficient to sustain the verdict. We think this contention is not well taken. The evidence showed that much dry grass, from four to five inches in height, was permitted to stand upon the right of way at the place where witnesses testified the fire started, and from which it immediately spread into the adjoining wheat field where the damage was done. The fire occurred in August, and the testimony showed that the grass was very dry. It was also shown that the fire sprang up very soon after one of appellant's trains had passed the spot at which, it is claimed, the fire began, the spot being on the right of way near the track. We think there was sufficient evidence to sustain the verdict.

Error is urged upon the following, which was the concluding sentence of an instruction given by the court: "If you do not find the defendant railway company, through its officers or agents, was the cause of that fire, then you should find for the defendant." It is argued that the above in effect stated to the jury that, if the railway company started the fire, it is liable, no matter what the circumstances were or what degree of care it exercised, whereas it was required by the law to exercise only reasonable care. We think no such inference could have been drawn when the instructions given the jury were considered together, as we have frequently held they must be. They were clearly instructed that the railway company was required to exercise reasonable care. That they understood such to be the standard and test of appellant's liability we think there can be no doubt. The same comment is applicable to assignment of error No. 4, which relates to another instruction. It is also argued that some of the instructions are inconsistent, but we are satisfied that, when they were read and considered as a whole, no confusion could have arisen in the minds of the jurors.

It is next contended that the court by its instructions submitted questions to the jury which were not within the issues. It is insisted that all questions of negligence touching any defective condition of the engine and

The

its appliances were eliminated from the case, and that the only matter of negligence left for the consideration of the jury was that relating to the accumulation of dry and combustible material upon the right of way. matter of negligence in the use of defective appliances was squarely within the issues made by the pleadings, but appellant urges that, by concession at the trial, this subject was eliminated. The record, however, discloses that appellant was permitted to introduce much evidence upon this subject over respondent's objection; and, in view of such circumstances, evidence upon the subject having been brought before the jury by appellant itself, we think it should not now be heard to urge reversible error because the court instructed upon the subject.

And

The following instruction, which was given by the court, is criticised by appellant: "You are instructed that it is the duty of the railway company to exercise reasonable care to keep its right of way at all points adjoining the private property of others free from combustible materials which are liable to become ignited from passing trains. And, should you believe from the evidence that the grain in question was burned because of a fire which originated on the right of way of the company through sparks escaping from a passing engine, which thereafter spread to the grain field in question, then it is immaterial whether the engine of the railway company was improperly equipped or not. it is likewise immaterial. should you find that the fire which caused the injury escaped from the right of way of the railway company under the circumstances just stated, whether the employés in charge of the engine were skillful or careful, or negligent and careless, in the operation of said railway engine, and your verdict should be for the plaintif in either case, should you find that the fire escaped from the right of way of the railway company, after having been set through sparks escaping from a passing engine." We find no error in the quoted instruction. It is a clear and unobjectionable statement of the law applicable to the presence of combustible material upon the right of way negligently permitted to accumulate. It is in effect the same statement of the law as that contained in the following more elaborate statement of an eminent author: "A railroad company is bound to keep its track and contiguous land clear of materials likely to be ignited from sparks issuing from its locomotives. A neglect of these precautions will render it liable, even though its appliances were proper, and though it were guilty of no negligence in allowing the fire to escape. This is a duty which is implied in the grant of power to use locomotive engines. A franchise of this nature must be strictly construed: and it would be unreasonable to presume that, in granting the priv ilege to use this dangerous agent, the Leg

islature intended to give them the privilege of running their engines on premises surrounded and covered with combustible material. The removal of such combustible substances is quite as much a means of preventing the communication of fire from their locomotives as is the use of inventions for preventing the escape of tire from the locomotives themselves. Decisions are numerous which affirm the liability of railroad companies for negligence in failing to perform this duty, where adjacent property is burned by reason of the neglect of it, notwithstanding it may have used due care in providing proper appliances to arrest the scattering of fire by its engines, and due care in the running of its engines so as to avoid setting fire to adjacent property. A round statement of this doctrine is that, where a railroad company sets fire to the dry grass and other combustible material, which it has negligently suffered to accumulate on its right of way, and, without fault of the adjacent owner, permits such fire to escape to his lands and burn and destroy his property, it will be liable to him for the damages, whether the escape of such fire was due to its negligence or not." 2 Thompson on Negligence, § 2270. Many authorities are cited by the author in support of the above, and again, in section 2280 of the same volume, reference is made to the subject as follows: "It has been well reasoned that, where the railroad company negligently permitted combustible material to accumulate on its right of way, from which a fire, communicated by one of its locomotives, spread to the property of an adjoining landowner, the question whether the fire was started through negligence in supplying the locomotive with proper appliances to prevent the spread of fire, or in keeping it in proper repair, or in operating it on the particular occasion, became immaterial. In such a case it has been held no error to exclude evidence as to what kind of a smokestack, fire box, and ash pan were in use on the defendant's locomotives."

We find no prejudicial error in the record, and the judgment is affirmed.

ROOT, MOUNT, CROW, and FULLERTON, JJ., concur.

(46 Wash. 585)

SYLVESTER et al. v. STATE. (Supreme Court of Washington. July 15. 1907.)

1. EVIDENCE-DOCUMENTARY EVIDENCE-RECORDS OF LAND OFFICE-PROPER CUSTODY.

In an action to recover land donated by S., who had settled thereon under the Oregon donation act. to the territory of Washington. the fact that the notification to the Surveyor General by S. of his intent to claim the land was not found in the Oregon land offices, the land being a part of Oregon Territory at the time the notification was given, but in the General Land Office at the city of Washington, did not detract from its character as evidence, and,

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