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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

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 Jills. 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 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, together 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 easement 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 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


-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


[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

right of way, an instruction that, if the jury should not find that the company through its officers or agents caused the fire, defendant should recover, was not objectionable as making the company liable, though it exercised reasonable care, where the other instructions, clearly made reasonable care a test of the company's liability. 3. APPEAL – REVIEW — ESTOPPEL TO ASSERT Ei:ROR.

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 introducel 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_FIXES—COMPANY'S Dęty.

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 IS 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 equipped. 6. SAME-MAXAGEMENT OF EXGIXE.

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 0. C. Moore, for respondent.

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

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 re quired to exercise reasonable care. That tbey 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 in: sisted that all questions of negligence touching any defective condition of the engine and

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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

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,

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