sheds owned by respondent, and was about , width in front of her property did not of to occupy ihe premises of respondent to the itsell grant the city the right to take any extent of 30 feet from the center line of part of respondent's property without comthe road; whereupon this action was begun pensation. to restrain the city from taking more than 15 The judgment of the trial court appears to feet from the center line of the road.

| be right, and is therefore affirmed. The appellant contends that the petition requesting the county commissioners to fix HADLEY, C. J., and ROOT, CROW, and the width of the road at 30 feet, and the or- FULLERTON, JJ., concur. der of the commissioners fixing the width thereof at 4.0 feet, were void because no notice was given. It is conceded that proper no

(46 Wash. 624) tice of the relocation of the road was given

LEC'HIMAX . MILLS et al. as requireil by law, and that the petition' (Supreme Court of Washington. July 26, 1907.) was silent as to the width of the road. The 1. LASENESTS-EASEJEST BY PRESCRIPTIOXstatute then in force provided that "all coun

ADVERSE CHARACTER OF U'SE. ty roads shall be sixty feet in width, unless

Where the use of an easement in land for

the maintenance of a canal has continued over the county commissioners shall, upon the 25 years, it will be presumed to have been adprayer of the petitioners for the same, deter- verse, unless it is explained to have been othermine on a less number of feet in width."

wise. Section 2979, Code 1881. Under this statute,

[Ed. Yote.-For cases in point, see Cent. Dig.

vol. 17, Easements, $ 89.] where no width was fixed by order of the

2. SAME-EASEMENT PRECEDED BY VOID ORAL hoard of county commissioners, the statute

GRAST. fixed the width at 60 feet. Town of Suniner : The use is not deprived of its adverse charv. Peebles, 5 Wash. 471, 32 l'ac. 221, 1000. acter, or rendered merely permissive for the purUnder the petition for relocation, the board poses of the statute of limitations, because pre

coded by an oral agreement amounting to a of county commissioners had jurisdiction to

grant but void under the statute of limitations. fix the width at 60 feet. The board also had

[Ed. Yote.-For cases in point, sce Cent. Dig. jurisdiction to fix the width at less than 60 rol. 17. Easements, $8 23, 21.] feet, upon the prayer of the petitioners. While the record in this case does not show

Appeal from Superior Court, Kittitas Counthat the petitioners who asked to have the ty; H. B. Rink. Judge. width fixed at 30 feet were all of the original

Action by Thomas Lechman against J. L. petitioners, it does show that they were

Mills and others to enjoin the maintaining

of a canal. From a judgment for defendinterested in the road, and no objections appear to have been made to the order as made

ants, plaintiff appeals. Affirmed. by the ccunty commissioners. Since the John B. Davidson, for appellant. Carroll board of county commissioners had jurisdic- B. Graves and J. II. McDaniels, for respondtion to act upon the petition and to grant the ents. whole of the 60 feet, we are of the opinion that the board had power to fix the width of IIADLEY, C. J. This action was brought the road at any nunber of feet less than 60,

to enjoin the defendants from keeping and upon the prayer or request of any of the

maintaining a canal on and across certain petitioners at the hearing. The statute did lands which the plaintiff claims to own, not require the petition or notice to state and also from overflowing with water any the width of the proposed road, but to state portion of said lands by means of said canal only "the place of beginning, the interme- together with dams ordikes. Following diate points, if any, and the place of termina- | largely the order of statement found in the tion of said road." Section 2871, Code 1881. brief of respondents, we believe the followA new notice therefore would have afforded

ing is a fair statement of the facts in the no more information to the public than the case: In the year 1879 one Briggs was the old notice had given. We are also of the occupant but not the owner of the land over opinion that the board of county commis- which this controversy exists, and which sioners were not bound by the prayer of the land the plaintiff now claims to own. At petitioners. The board, having acquired ju- that time it was believed the land would be risdiction to establish or locate the road, included within the limits of the grant to might use their own judgment and fix the the Northern Pacific Railroad Company when road at such width less than 60 feet as the those limits should be determined by the circumstances and facts seemed to warrant. adoption of the line of definite location of This being so, it follows that the road laid the road, such adoption not then having been out in 1863 was altered by the relocation of made. Briggs expected to purchase the the same road in 1879, so that thereafter the land from the railroad company as road was only 40 feet in width. The appel- as the latter acquired the title and was in lant was therefore not authorized to take position to make a sa'e and conveyance; the property of the respondent more than but the land was then a part of the public 20 feet froin the center line of the road. The domain, and Briggs was a mere occupant. fact that the respondent signed the petition While such was the situation, Mr. Mills, to the city council to open a road 00 feet in one of the defendants in this action, con

said canal and impound the same at an ex- by permission does not affect the prescrippense of $10,000, all of which was known to tive right, if it has been used and exercised Briggs, who, during all the time of his oc- for the requisite period under a claim of cupancy, acquiesced in the claim of Mills and right on the part of Mr. Simpson and his never disputed or denied it; that the gran

heirs and their grantees. If the use of a tees of Mills, who held the flouring will way is under a parol consent given by the power, in like manner relied upon the right owner of the servient tenement to use it to perpetually use said water and power and as if it were legally conveyed, it is a use perpetually maintain the reservoir, and by as of right. Gould, Waters, § 338; Washreason thereof they constructed their flour- burn, Easem. (20 Ed.) 127. The plaintiffs mill at an expense of $8,000, all of which have used the ditch as if it had been legally was known to Briggs during the time of his conveyed to them, that is, they have exeroccupancy and claim of title to any of said cised such acts of ownership over it as a land, and he never denied or disputed said man would over his own property, and the rights, but always acquiesced therein. Er- court must presume, in the absence of any rors are assigned upon the findings, but we evidence to the contrary, that the settlethink they are sustained by the evidence. ment was a parol consent or transfer by

The findings establish that the agreement Mr. Jackson to Mr. Simpson of the right to made by Briggs with Mills was not a mere use the ditch, and hence it was a use as of revocable license or permission to occupy, right." The facts in this case clearly show but that it was intended to operate as a a continuous adverse use by respondents grant to be confirmed by deed when Briggs and their grantors under claim of right for acquired the title so that he could convey more than a quarter of a century. This esit. We believe it is unnecessary to discuss tablishes their title by prescription, and we the testimony in detail, since we are satis- find it unnecessary to discuss other reasons tied that it establishes the intention to make suggested in support of their title. an absolute grant the consideration of which Appellant claims a reversal in any event was the construction and operation of the on the ground that the decree is too broad mill at that place. The use of the premises inasmuch as it quiets the title to all the land was thus initiated, and it continued unin- covered by water from the canal, dams, and terruptedly for more than 25 years, until reservoir, as the same existed at the time this suit was brought. Such use must now of the decree. It is argued that there was be presumed to have been adverse, unless no attempt in the pleadings or evidence to it is explained to have been otherwise. define the boundaries or to ascertain with "Where the use of an easement has con. any degree of exactness the extent of the tinued for the prescriptive period unexplain- user by respondents. We are unable to see ed, it will be presumed to have been adverse, any merit in this contention. The decree unless it is of such a character or the cir- is limited to the "reservoir, dams, and dikes, cunstances attending it are such as to show as the same are at present maintained over that it was a mere privilege enjoyed by leave and upon the land of the plaintiff.” There of the landowner." 23 Am. & Eng. Enc. of is no suggestion in the record anywhere Law, 1202. Moreover, the use was not de- that the area involved is not the same that prived of its adverse character or rendered it has been during all the years; and, no merely permissive for the purposes of the suggestion to the contrary having been made statute of limitations, by a showing that it in the court below, and the cause evidently was preceded by an oral agreement amount- having been tried throughout upon that theing in terms to a grant but void under the ory, we find no error in the particular menstatute of limitations. “It is generally agreed tioned. that use of an easement under claim of The judgment is affirmed. right by virtue of a parol grant may be adverse so as to give it title by prescription, CROW, MOUNT, and FULLERTON, JJ., although the parol grant itself is void under concur. the statute of frauds." 23 Am. & Eng. Enc. of Law, 1198, and cases cited. The following from the opinion in Coventon v. Seufert,

(46 Wash. 635) 23 Or. 518, 32 Pac. 508, may also be set

FIREMAN'S FUND INS. CO. V. NORTHforth as pertinent to this subject: “An ease

ERN PAC. RY. CO. ment cannot be granted by parol; yet, if

(Supreme Court of Washington. July 26,

1907.) Mr. Simpson purchased from Mr. Jackson the right to use the ditch, and used the

1. RAILROADS – FIRES — ACTION EVIDENCE

-SUFFICIENCY. same for 10 years, and such use was ac- Evidence in an action against a railway quiesced in by Mr. Jackson and his grantees, company for loss caused by a fire escaping from it would be such an exercise of the easement,

the right of way held to sustain a verdict for under a claim of right, as to give a pre

plaintiff.

[Ed. Note.--For cases in point, see Cent. Dig. scriptive right to the same. It is no objec

vo). 41, Railroads, $$ 1730-1736.] tion to granting an easement by prescrip

2. SAME-INSTRUCTIOX. tion that the same was originally granted or In an action against a railway company bargained for by parol. That the use began for loss caused by a fire escaping from its

its appliances were eliminated from the case, | islature intended to give them the privilege and that the only matter of negligence left of running their engines on premises surfor the consideration of the jury was that re- rounded and covered with combustible malating to the accumulation of dry and combus- terial. The removal of such combustible subtible material upon the right of way. The stances is quite as much a means of preventing matter of negligence in the use of defective the communication of fire from their locoappliances was squarely within the issues motives as is the use of inventions for premade by the pleadings, but appellant urges venting the escape of tire from the locomothat, by concession at the trial, this subject tives themselves. Decisions are numeroụs was eliminated. The record, however, lis- which affirm the liability of railroad compacloses that appellant was permitteil to in- nies for negligence in failing to perform this troduce much evidence upon this subjert over duty, where adjacent property is burned by respondent's objection; and, in view of such reason of the neglect of it, notwithstanding circumstances, evidence upon the subject har- it may have used due care in providing proping been brought before the jury by aprel. er appliances to arrest the scattering of fire lant itself, we think it should not now be by its engines, and due care in the running heard to urge reversible error because the of its engines so as to avoid setting fire to court instructed upon the subject.

adjacent property. A round statement of The following instruction, which was given this doctrine is that, where a railroad comby the court, is criticised by appellant: "You pany sets fire to the dry grass and other are instructed that it is the duty of the rail. combustible material, which it has negliway company to exercise reasonable are to gently suffered to accumulate on its right of keep its right of way at all points adjoining way, and, without fault of the adjacent ownthe private property of others free from com- er, permits such fire to escape to his lands bustible materials which are liable to be- and burn and destroy his property, it will come ignited from passing trains. And, be liable to him for the damages, whether the should you believe from the evidence that escape of such fire was due to its negligence the grain in question was burned because of or not." 2 Thompson on Yegligence, $ 2270. a fire which originated on the right of way Many authorities are cited by the author in of the company through sparks escaping from support of the above, and again, in section a passing engine, which thereafter spread to 2280 of the same volume, reference is made the grain field in question, then it is imma- to the subject as follow's: "It has been well terial whether the engine of the railway com

reasoned that, where the railroad company pany was improperly equipped or not. And negligently permitted combustible material it is likewise immaterial, should you find to accumulate on its right of way, from which that the fire which caused the injury escaped

a fire, communicated by one of its locomofrom the right of wily of the railway com

tives, spread to the property of an adjoining pany under the circumstances just stated,

landowner, the question whether the fire was whether tl.e employés in charge of the en

started through negligence in supplying the gine were skillful or careful, or negligent locomotive with proper appliances to prevent rund careless, in the operation of said tail

the spread of fire, or in keeping it in proper way engine, and your verdict should be for repair, or in operating it on the particular osthe plaintif in either case, should you tind

casion, became immaterial. In such a case that the fire escaped from the right of way

it has been held no error to exclude evidence of the railway company, after having lopen

as to what kind of a smokestack, fire box, and set through sparks escaping from it passing

ash pan were in use on the defendant's locoengine." We find no error in the quoted in

motives." struction. It is a clear and unobjectionable

We find no prejudicial error in the record, statement of the law applicable to the pres

and the judgment is affirmed. ence of combustible material upon the right of way negligently permitted to accumulate.

ROOT, MOUNT, CROW, and FULLERIt is in effect the same statement of the law

TOX, JJ., concur. as that contained in the following more elaborate statement of an eminent author: ". railroad company is bound to keep its track

(46 Wash. 585)

SYLVESTER et al. v. STATE. and contiguous land clear of materials likely to be ignited from sparks issuing from

(Supreme Court of Washington. July 15.

1907.) its locomotives. A neglect of these prerau

1. EVIDENCE-DOCUMENTARY EVIDENCE-RECtions will render it liable, even though its

ORDS OF LAND OFFICE-PROPER CUSTODY. appliances were proper, and though it were In an action to recover land donated by guilty of 110 negligence in allowing the fire S., who had settled thereon under the Oregon

donation act, to the territory of Washington. to escape. This is a duty which is implied

the fact that the notification to the Surveyor in the grant of power to use locomotive en

General by S. of his intent to claim the land gines. A franchise of this nature must be was not found in the Oregon land offices, the strictly construed; and it would be unrea

land being a part of Oregon Territory at the

time the notification was given, but in the Gensunable to presume that, in gruunting the lirir

eral Land Office at the city of Washington, did ilege to use this dangerous agent, the Leg- not detract from its character as evidence, and,