THE

PACIFIC REPORTER.

VOLUME 91.

(46 Wash. 640)

Appellant sustains its contention by an elaboSPOKANE VALLEY LAND & WATER CO rate and able argument, which would appeal V. MADSEN et ux.

with much force to the writer of this opinion, (Supreme Court of Washington. July 26, 1907.) were the question properly before the court JUDGMENT-RES JUDICATA.

at this time. But, in view of the former adThe decision, in an action to restrain a judication between these same parties relawater company from maintaining a dam, len

tive to the same subject matter, we are condered on appeal from an order enjoining the company from using the dam and directing it

strained to hold that this question is not now to commence an action for condemnation of the before us. It could have been (but was not) littoral rights of the plaintiffs therein, that plain- presented when the case was here before. tiffs had rights in the waters, is conclusive,

The decision announced at that time must, where, in a subsequent action by the company to condemn the rights of such plaintiffs, there

for the purposes of the present hearing, be is presented a ground for a contrary holding, deemed binding as between the parties. which might have been, but was not, presented The judgment from which this appeal is on the appeal in the former case. [Ed. Note.--For cases in point, see Cent. Dig.

taken is based upon the verdict of a jury vol. 30, Judgment, $ 1241.)

summoned to hear evidence and pass upon

the question of damages. Certain errors are Appeal from Superior Court, Spokane Coun

assigned upon the giving and refusal of inty; W. A. Huneke, Judge.

structions by the trial court. These all apSuit by the Spokane Valley Land & Water Company against R. Madsen and wife. From

pear to turn upon the question just adverted a judgment for defendants, plaintiff appeals.

to, or upon others which were, or could or

should have been, submitted at the former Affirmed.

hearing. The jury having been properly inHappy & Hindman and Allen & Allen, structed in accordance with the law of the for appellant. Gallagher & Thayer, for re- case as theretofore announced by this court, spondents.

we must hold the exceptions not well taken.

The judgment is affirmed. ROOT, J. This case was before the court once before, and may be found reported in

HADLEY, C. J., and MOUNT, CROW, and 40 Wash. 414, 82 Pac. 718, 6 L. R. A. (N. S.)

FULLERTON, JJ., concur. 257. The present appeal is from a judgment of the superior court awarding respondents damages occasioned by appellant in condemn

(46 Wash. 613) ing and appropriating the waters of a non

STANGAIR V. ROADS. navigable arm of Liberty Lake. The appellant contends that, inasmuch as

(Supreme Court of Washington. July 22,

1907.) the lands of respondents affected herein were acquired from the government subsequent to

1. TRIAL - INSTRUCTIONS – INVADING PROVthe act of Congress approved March 3, 1877,

INCE OF JURY.

In an action to recover land claimed under the owners of said lands have no littoral or adverse possession, an instruction stating: "The riparian rights in the waters of the arm of Supreme Court has laid down the rule, which the lake in question. The act of Congress

I give you as the law in this case: If one by

mistake incloses the lands of another and provides, among other things, as follows: claims it as his own, his actual possession will "And all surplus water, over and above such work a disseisure: but if, ignorant of the boundactual appropriation and use, together with

ary line, he makes a mistake by laying his

fence, making no claim, however, to the lands the water of all lakes, rivers, and other

up to the fence, but only to the true line as it sources of water supply upon the public may be subsequently established, and it turns lands and not navigable, shall remain and be out that he has inclosed the land of the adheld free for the appropriation and use of the

joining proprietor, his possession to the land

is not adverse"-was not erroneous as an inpublic for irrigation, mining and manufac

vasion of the province of the jury or a comturing purposes, subject to existing rights." ment upon the facts of the case.

91 P.--1

2 SAME-VERDICT-DUTY OF COURT TO RE- a comment upon the facts of the case. QUIRE SPECIAL FINDINGS-STATUTES.

do not so understand it. The trial court laid In an action to recover land, it was not

down the rule as it had been beretofore anerror for the court to give the jury two forms of verdict, and instruct them to find generally nounced by this court. Thornely V. Andrews for plaintiff or defendant, instead of requesting (Wash.) SS Pac. 757. Taking the instruction them to render a general or special finding, as provided by 2 Ballinger's Ann. Codes & St. 8

in connection with the others given, we thinks 5021, where no special finding was requested.

it was calculated to assist the jury in deter[Ed. Note.-For cases in point, see Cent Dig.

mining the issue wbich they were to detervol. 46, Trial, $ 837.)

mine, and was in no manner prejudicial to Appeal from Superior Court, Clarke Coun

the rights of appellant. ty; W. W. McCredie, Judge.

It is also contended that the court erred Action by James Stangair against John

in giving the jury two forms of verdict, and Roads to recover possession of a parcel of

in instructing them to find generally for land. From a judgment for defendant, plain- plaintiff or defendant, instead of requesting tiff appeals. Affirmed.

them to render a general or special finding,

as provided in section 5021, 2 Ballinger's H. C. Leiser and E. M. Green, for appel

Ann. Codes & St. It does not appear that aplant. A. L. Miller and W. W. Sparks, for

pellant requested any special finding, and respondent.

we fail to find any merit in this contention.

The judgment of the superior court is afROOT, J. In a case between these same

firmed. parties, reported in 41 Wash. 583, 84 Pac. 405, the contention of respondent as to the

HADLEY, C. J., and FULLERTON, location of a lost corner was upheld. This

MOUNT, and CROW, JJ., concur. action is to recover possession of a small parcel of land lying within the boundaries of respondent's land as determined by that

(46 Wash. 631; action. Appellant herein based his right to

KANE et ux, V. JONES et ux. the possession of this land upon a claim of

(Supreme Court of Washington. July 26, 1907.) adverse possession for more than 10 years.

VENDOR AND PURCHASER-CONSTRUCTION OF The case was tried to a jury, which returned

CONTRACT-PROVISIONS AS TO ABSTRACT AND a verdict in favor of respondent. Upon the EARNEST MONEY. verdict was entered a judgment from which A contract for the purchase of land prothis appeal is taken.

vided that the purchasers should have 5 days to

examine the abstract, the vendors to have 30 The main contention of appellant is that

days to correct flaws therein, the earnest money the evidence does not sustain the verdict. to be returned if any flaws were not corrected We do not think this contention can be up- within 30 days after notification thereof, but to held. The question turned largely as to the

be retained as liquidated damages if the pur.

chase was not completed upon the terms stated. time when a certain fence was built. Upon The abstract was duly delivered, and no objecthis there was a conflict in the evidence. tion to it was made for over three weeks, and We think there was a sufficient amount of

no request was made to perfect the title, nor

was time given to cure any defects after objecevidence which, if believed, would justify

tion was made, but the purchasers demanded a the jury in the verdict which they returned, return of the earnest money. Held, that the and that the trial court did not commit error

purchaser had only 5 days after delivery of the

abstract to discover objections thereto, and they in denying the motion for a new trial on this

were not entitled to a return of the earnest ground.

money. Exceptions were taken to several instruc

Appeal from Superior Court, King County ; tions given by the trial judge, and the giving

Geo. E. Morris, Judge. thereof is here assigned as error. These had

Action by M. Francis Kane and another to do principally with the question of what constituted adverse possession, and we think

against A. A. Jones and another. From a they were in accord with prior decisions of

judgment for defendants, plaintiffs appeal.

Affirmed. this court. One of the instructions given by the trial court, the giving of which is urged James C. Moody, for appellants. Doug to be error, is as follows: "Our Supreme

las, Lane & Douglas, for respondents. Court has laid down this rule which I give you as the law in this case: If one by mis- HADLEY, C. J. This action was brought take incloses the lands of another and claims

to recover the sum of $1,000, paid by the it as his own, his actual possession will work plaintiffs as a part of the purchase price a disseisure; but if, ignorant of the boundary of real estate. The agreement of purchase, line, he makes a mistake in laying his fence, as alleged in the amended complaint, was making no claim. however, to the lands up to that the selling price was $15,000, to be the fence, but only to the true line as it may paid as follows: Cash in hand, $250; upon be subsequently established, and it turns out the delivery to plaintiffs of an abstract of that he has inclosed the lands of the ad- | title brought down to date, $750; 30 days joining proprietor, his possession of the land thereafter, $1,000 ; and within 6 months, is not adverse.” It is urged that this was $3.000—the plaintiffs also to assume

—

the RD invasion of the province of the jury, and payment of a mortgage of $7,000. It is

The appellants made default in their pay- of mandate issued out of the superior court, · ments, and respondents had the clear right canvassed the returns of said election, and

under the contract to declare a forfeiture issued to the plaintiff a certificate of election; of the money theretofore paid.

that thereafter, on March 25, 1907, the plainThe judgment is affirmed.

tiff filed his oath of office with the city coun

cil, and demanded recognition in his said FULLERTON, MOUNT, and CROW, JJ., official capacity, whereupon he found his seat concur.

occupied by Robert Stewart, the defendant,

said Stewart claiming to hold by virtue of his (46 Wash. 616)

appointment by said city council to said of

fice on December 10, 1906, six days after the STATE ex rel. ROYSE v. SUPERIOR

election of the plaintiff to the office; that said COURT OF KITSAP COUNTY.

Stewart is a usurper of the office; and that (Supreme Court of Washington. July 22,

he wrongfully withholds the same from the 1907.)

plaintiff. Judgment is prayed that the de1. CERTIORARI-INADEQUACY OF OTHER REME

fendant Stewart be ousted from the office. DY.

In an action to determine the right to an and that the plaintiff be put in possession of office, where an appeal could probably not be the same. The defendant's demurrer to the determined before the time for which the office

foregoing allegations having been sustained, is claimed would expire, a writ of review will be granted.

and judgment of dismissal entered, the plain[Ed. Note. For cases in point, see Cent. Dig.

tiff applied to this court for a writ of review,

a , vol. 9, Certiorari, $ 6.]

which was granted. 2. OFFICERS_VACANCY-NECESSITY OF AC- The relator had the right of appeal from CEPTANCE OF RESIGNATION.

the judgment, but it was believed that such Where an officer resigns his office, no va

remedy would be inadequate, as the appeal cancy exists until the resignation is accepted formally, or by the appointment of a successor,

could probably not have been determined beand one who is elected to fill the vacancy be- fore the time for which the relator claims the fore the resignation is accepted cannot claim office in question expires, thus rendering the the office.

appeal fruitless. For said reason the writ of [Ed. Note. For cases in point, see Cent. Dig.

review was granted in pursuance of the rule vol. 37, Officers, $ 80.]

heretofore followed in similar cases. State Writ of review by the state of Washing- ex rel. Meredith v. Tallman, 24 Wash. 426, ton, on the relation of Arthur Royse, to the 61 Pac. 759; State ex rel. Smith v. Superior superior court of Kitsap county, to review Court, 26 Wash. 278, 66 Pac. 385. The quesan order sustaining a demurrer to the com

tion involved in the ruling upon the demurplaint in an action by relator against Robert rer to the complaint is, was there a vacancy Stewart. Judgment affirmed.

in the office of councilman of the Third Ward

of Bremerton at the time the relator claims J. W. Bryan, for relator. Thomas Steven

to have been elected thereto? If Gruwell's son, for respondent.

resignation was not complete at the time of

the election, there was no vacancy, and the HADLEY, C. J. This cause is before this effort to elect the relator was fruitless withcourt on writ of review. The relator here

out a vacancy to fill. It will be observed that was the plaintiff in the court below. The the complaint does not allege that the resigcause was determined by sustaining a demur- nation had been accepted by the council prior rer to the complaint and by the dismissal of to the election, either by the appointment of a the action, the plaintiff declining to plead successor or by any other action taken. The further. The complaint in effect alleges that complaint merely shows that the communicathe city of Bremerton is a city of the third tion tendering the resignation was read before class, and that on December 5, 1905, one Gru- the council. It is the contention of the relatwell was elected as councilman for the Third

or that no acceptance of the proposed resigWard of said city, to serve a term of two nation was necessary, and that the office beyears from and after the first Monday in came vacant upon the mere presentation of January, 1906; that thereafter, on November the tendered resignation to the council. Up2, 1906, said Gruwell resigned as councilman, on the other hand, the respondent contends the resignation being in writing; that the res- that an acceptance was necessary, and that ignation was read in open council on Novem- in its absence there was no vacancy. The auber 5, 1906, at the first regular meeting after thorities cited in the respective briefs are in the date of the resignation, and that said Gru- conflict. We have also made further investiwell has never since said November 2, 1906, gation with the same result. The relator exercised or attempted to exercise any of the cites United States v. John C. Wright, 1 duties of said,oflice; that at a regular annual McLean (U. S.) 509, Fed. Cas. No. 16,775. In election held in said city on December 4, the opinion in that case the following expres1906, the plaintiff was elected as councilman sion is found: "There can be no doubt that to fill the unexpired term of said Gruwell re- a civil officer has a right to resign his ofsigned; that thereafter, on March 22, 1907, fice at pleasure, and it is not in the power of the said city council, acting as a board of the executive to compel him to remain in of. canvassers, under and in obedience to a writ | fice. It is only necessary that the resignation