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scent of real estate and the distribution of serve that harmony and equality in our laws personal property. This act for the first pertaining to wills, property rights, and detime provided for inheritance of realty by scent intended by our Legislatures. the husband and wife the one from the other, Testamentary incapacity in a married womaking no mention of the estates of dower or man being the basis of the common-law rule tenancy by the curtesy. This legislation dis- | revoking her will executed while a feme sole, closes an evident intention to harmonize the various courts hold that when such testalstatute relating to wills and the law of de- mentary incapacity has been removed by scents with existing property rights under the statute the reason of the rule teases, and separate and community property act then in that the rule itself therefore ceases to exist. force. Later amendments to the law of de- Kelly v. Sterenson, SJ Minn. 247, S8 X. W. scents and the law of separate and commun- 739, 56 L. R. A. 754, 89 Am. St. Rep. 51.); ity property, perfecting such harmony, have Emery, Appellant, 81 Me. 275, 17 Atl. 08; resulted in our present statutes on these sub- Will of Ward, 70 Wis. 251, 33 N. W. 731, 5 jects. The entire trend of legislation since Am. St. Rep. 174; Roane y. Hollingshead, 1869 has been a departure from common-law 76 Md. 309, 25 Atl. 307, 17 L. R. A. 592, 3) rules, with the evident intention of placing the Am. St. Rep. 438; Norton v. Onion, 45 lt. husband and wife as nearly as possible upon 1-15; Fellows v. Allen, 60 N. H. 439, 49 An. an equality the one with the other, not only Rep. 328; In re Tuller, 79 Ill. 39, 22 Am. in their property rights, but also in their Rep. 164. The respondent has cited some of testamentary capacity and their rights of the cases mentioned above, and urges their inheritance; the only exception as to their application here. We do not regard them property rights now being that the husband as pertinent under our present statutes, , has the management and control of all of which make the husband and wife heirs one community property and the right to alienate to the other. In re Tuller's Will, 79 Ill. 99, community personalty. This exception, how.
22 Am. Rep. 164, is one of the cases cited ever, is necessary to enable him, as head of by respondent; but the Supreme Court of the family, to engage in business and trade Illinois, in Tyler v. Tyler, 19 Ill. 151, 153. for the benefit of the community of which says: “We hold that marriage, under our he is a member. Although these various statute making the wife heir to the husband laws have been at times crude, incomplete and and the husband heir to the wife, where there somewhat inconsistent, the ultimate purpose is no child or descendant of a child, is, in of the successive Legislatures has been to se- the absence of facts showing an intention to cure harmony and equality. While applying die testate arising subsequent to the marproper methods of interpretation, our laws riage, a revocation of a will of the husband, should be construed, if possible, to promote made prior to the marriage, disposing of his this harmony. The construction of sections entire estate without making provision in 4598 and 4615, Ballinger's Ann. Codes & St., contemplation of the relations arising out of urged by appellant, accomplishes this result it.” The doctrine of this case is not only without violence to any correct method of in- recognized in the Tuller Will Case, supra, terpretation, while the construction asked by but it has been frequently followed by the respondent would have the opposite effect. Illinois court, although at common law subMany unfortunate conditions might result, sequent marriage and birth of a child, taken were the contention of the respondent sus- together, were required to revoke the will tained. For instance, an unmarried woman of an unmarried man. American Board of could by will devise her entire estate. She Foreign Missions v. Nelson, 72 Ill. 564; Durmight then marry, and, although she and yea v. Duryea, SJ Ill. 41; McAnnulty v. Moher husband might thereafter accumulate a Annulty, 120 Ill. 26, 11 N. E. 397. 60 Am. Rep. large community estate, her previous will, 52; Hudnall v. Ham, 172 Ill. 76, 49 N. E, 98). if not revoked, would, in the event of her In harmony with these Illinois cases is in death without issue, pass one-half of such re Teopfer, 67 L. R. A. 315, 12 N. M. 372, 78 community estate to her legatees. On the
Pac. 63, in which the Supreme Court of New other hand, a husband's will being revoked Mexico, under a statute making the husband by subsequent marriage, the entire commun- and wife heirs to each other, applied the ity estate, in the event of his death without
same rule to a will executed by a single woissue, would pass to his widow. Again, if man who afterwards married and died witha single woman devised her separate estate, out issue. See, also, Durfee v. Risch, J L. R. and afterwards married, her will not being A. (N. S.) 108.1, 142 Mich. 501-1, 10.5 X. W. 1114; thereby revoked, her entire separate estate Brown v. Scherrer, 38 Pac. 427, 5 Colo. App. would, in the event of her death, pass to her 235; Scherrer V. Brown, 42 Pac. 668, 21 legatees, while in the case of her husband, Colo. 481. Our construction of sections 4599 his will being revoked by subsequent mar- and 4015, Ballinger's Ann. ('odes & St., we riage, one-half, or at least one-third, of his regard as being in complete harmony with separate estate would, in the event of his former decisions of this court on kindred death, descend to his widow by inheritance. questions. In re Murphy's Estate, 30 Wash. These illustrations and others that might be 10, 70 Pac. 109; In re Fease's Estate, 30 suggested show that the construction for Wash. 51, 70 Pac. 270. See, also, Durfee which the respondent contends does not pre- V. Risch, supra; Ellis v. Darden, 11 L. R. A. 51, 86 Ga. 198, 12 S. E. 356; Owens George S. Shepherd and Helmus W. v. Haines, 48 Atl. 859, 199 Pa. 137; Smith Thompson, for relator. James B. Kerr, A. L. V. Allen, 31 Ark. 268.
Miller, and L. C. Gilman, for respondents. Respondent contends that the word "necessary,” found in section 4615, Ballinger's Ann. HADLEY, C. J. A writ of review was isCodes & St., forbids the construction adopted sued by this court for the purpose of reviewby us, as no necessity for any such interpre- ing the action of the superior court of Skatation exists. There has been considerable mania county in certain condemnation prodiscussion in the briefs of the correct defini- ceedings. The action in the trial court was tion of the word “necessary,” as here used. initiated by the petition of the Portland & Such discussion is immaterial, as a neces- Seattle Railway Company against the Skasity for our interpretation does exist, to en- mania Boom Company and others. The said force evident legislative intent and to pre- petitioner and also said boom company are serve the harmony of our laws pertaining corporations organized under the laws of to wills, property rights, and descents.
this state, the former for railway purposes The honorable trial court erred in admit- and the latter for booming purposes.
The ting the alleged will to probate and in ap- petitioner has surveyed and located a line pointing T. H. Kolderup administrator cum of railroad and is now engaged in the con. testamento annexo. The judgment is revers- struction thereof down the north bank of the ed, and the cause remanded, with instructions Columbia river from a point at or near Kento enter an order refusing to probate the will, newick, Wash., to Vancouver, Wash., and and also an order appointing the appellant thence across said river to Portland, Or., administrator of the estate of his deceased which railroad it proposes to build and wife.
operate as a common carrier of freight and
passengers. It claims that for the purposes HADLEY, C. J., and FULLERTON, RUD- of the construction and operation of said KIN, and DUNBAR, JJ., concur.
railroad it is necessary to condemn and appropriate for its use as a right of way a
certain strip of land 200 feet in width, being (47 Wash. 166)
100 feet on each side of the center line of STATE ex rel. SKAMANIA BOOM CO. V. SUPERIOR COURT FOR SKAMANIA
the railroad as now located across a tract of
land owned by the said boom company. A COUNTY et al.
preliminary hearing was had, and the court (Supreme Court of Washington. Sept. 13, 1907.)
found that it is necessary for the petitioner 1. EMINENT DOMAIN-NECESSITY-EVIDENCE.
to condemn and appropriate said strip of Evidence in proceedings by a railroad to land for its use as a right of way, that the condemn a right of way across land of a boom contemplated use is a public use, and that company held sufficient to sustain a finding of reasonable necessity therefor, authorizing con
the public interest requires the appropriademnation for one public service of land devoted
tion of the land for said railway purposes. to another public service.
It was ordered that a jury should be im2. SAME.
paneled for the purpose of ascertaining the On the question of reasonable necessity for damages resulting from such appropriation. condemning a right of way for a railroad across the property of another public service corpora
The boom company thereupon filed its petition, the comparative expense of constructing and tion here as relator, and asked the writ of maintaining the road there and elsewhere may review. Meanwhile the trial of the question be considered, with the other circumstances.
of damages has been suspended. 3. SAME-PRIOR ATTEMPT TO AGREE ON COM
The situation is substantially as follows: PENSATION-NECESSITY.
Ballinger's Ann. Codes & St. $ 4335, con- The relator owns a tract of land containing templating that, when a railroad company seeks about 38 acres, lying upon the east bank of to condemn a way for a crossing over the tracks Wind river and a short distance to the north of another railroad company, an effort to agree on the compensation shall first be made, does
of the confluence of said stream with the not apply in the case of a railroad seeking to Columbia river. The relator's plat or surcondemn a right of way over the property of a vey as a boom company, filed in the office of boom company, another public service company.
the Secretary of State of the state of Wash4. Same. Even if Ballinger's Ann. Codes & St. $
ington, and which shows so much of the 4335, providing for prior effort to agree on com- shore line of the waters of Wind river and pensation where a railroad company seeks to lands contiguous thereto as are proposed to condemn a way over the tracks of another railroad company, applies in case of a railroad
be appropriated by said boom company as seeking to condemn a right of way over the necessary for its purposes, embraces the said lands of a bom company, another public service tract. The location of the railway line is corporation, the effort need not be made where
about the center of this tract, considered it will be fruitless, because the boom company wholly denies the right or power to condemn.
from the north to the south, and crosses the
tract in an easterly and westerly direction, Writ of review, on the relation of the leaving practically equal parts of the tract Skamania Boom Company, against the su- to the north and south of the right of way perior court for Skamania county and the strip sought to be appropriated. The relator judge and clerk thereof, to review condemna- claims that it needs this entire tract as a tion proceedings. Judgment affirmed.
holding ground for logs in times of high
are high the logs cannot be handled at the
water, that when the waters of the Columbia to the condemnor will largely exceed the
disadvantages to the condemnee." To the mouth of Wind river, and that the waters same effect the relations of a condemning are forced up Wind river, which overflows corporation to the property of another aristhie tract in question, forming a holding ing from reasonable public necessity, were ground for the logs. The testimony shows discussed by this court in State ex rel. that during a period of eight successive years Portland & Seattle Railway Company v. the relator has actually used the ground Superior Court, 88 Pac. 201. twice in connection with
with handling logs. It being established that the power to conEach time the period of such use covered a demn exists in favor of the railway company few weeks by reason of the fact that the as against the relator if a necessity exists, land was covered by water. So far as the we must next inquire if a reasonable necesevidence show's the land at all other times sity does exist. The trial court found that during the eight years has either been entire- it does, and we think the evidence sustains ly uncovered by water or has not been under the finding. The relator contends that a line sufficient water to be used for logging pur- which it proposes to the south of its tract poses. It further appears that at the two of land would be a practicable route, and that times named the use that was made of the by its adoption the appropriation of any porground was for brailing or sorting logs. Un- tion of relator's tract would be avoided. The der such circumstances the relator claims evidence does not show that it would be that the tract in question has been devoteil impossible to construct and maintain upon to a public use; that the relator is a public the proposed line, but it does show that service corporation, having previously de- the water line of the Columbia river extends voted the land to a public purpose: and that a long distance beyond the proposed location, the railway company cannot condemn it for and from a profile sown on the map filed it another public purpose.
appears that the track would have to be Assuming, without deciding, that the facts supported by a high fill or trestle. It is the in evidence are sufficient to show that the relator's own contention that the current of tract had been actually appropriated by the the river at this point is such that in times boom company for a public use, still the of high water it cannot handle its logs there, strip sought to be taken by the railway com- and hence it claims the necessity for the pany constitutes but a small part of the en- ground sought to be condemned, in order tire tract said to be devoted to the public that it may hold its logs upon it at such purpose.
The case is therefore not that of one times. The relator's own argument sliows public service corporation seeking to deprive that its proposed route for the railway would another such corporation of its entire means require the construction and maintenance of operation at a given location. Both to the of the line within this same current, maknorth and south of the strip sought to be ing it necessary to operate freight and pascondemned is room remaining. In whatever senger trains upon some kind of structure manner the railway may be built across the that must resist the force of the current. tract, whether upon unfilled trestle work or The safety of the lives of passengers and the with a filled embankment, the bed of Wind careful transportation of freight constitute river must in any event remain open and great public necessity, and the public cannot unobstructed, through which the back water reasonably be subjected to the hazards atmay flow, and then overflow the tract upon tending the proposed location, when they both sides of the railroad. Within the prin- inay be avoided by the use of a strip of reciples discussed in Samish River Boom Com- lator's land. It also appears that the conpany v. Union Boom Company. 32 Wash. struction and maintenance upon the propos586, 73 Pac. 670, the power exists for one ed route would be very expensive. While public service corporation to condemn prop- this may not of itself be a sufficient reason erty held by another. Such power may not for taking relator's property, unless it be exercised arbitrarily or indiscriminately, aunounts to a practical prohibition, yet, when so as merely to take property away from one it is considered in connection with the other Corporation and give it to another.
It can- elements mentionedthe comparative exnot be taken to be used for the same pur- pense is not an improper matter for conpose, in the same manner; but, where there sideration in determining as a whole the is a necessity for devoting it to some other reasonableness of the appropriation. All the public service, it may be condemned. As to circumstances, taken together, tested by the the degree of necessity which must exist, standards above mentioned, show a reasonthere is difference of opinion. Some courts
able necessity for the appropriation. have held that the necessity must be an abso- It is also urged that the court erred in girlute one, but the weight of opinion is that it ing judgment for condemnation, for the reamust be a reasonable necessity. Lewis on son that it was not shown that any effort Eminent Domain (211 E(.) $ 276. The same was made to agree with the relator upon the section says: "But we should say that there amount of compensation prior to instituting was a reasonable necessity for the taking the condemnation proceeding. By referene where the public interests would be better to sertion 1331, 1 Ballinser's Ann. Codes & sulserved thereby, or where the advantages St., it will be seen that the extent of the right of appropriation in general on the part | accounting between the parties; that it is i. of a railway company is there stated, and it transitory and not a local action, and is propis not made a condition precedent to the erly triable in Pierce county, where the rebringing of condemnation proceedings that lator herein, who is sole defendant in that a prior attempt to agree upon compensation action, resides; that within the time preshall be made. Section 4333 does conten- scribed by law the relator, as defendant in plate that, when one railway company seeks said action, served and filed his demurrer to to condemn a way for a crossing over the the complaint in the cause; that with the detracks of another railway company, an effort murrer he also served and filed an affidavit to agree upor: the compensation shall first be of merits, showing the place of his residence made. Relator argues that, by analogy, ils aforesaid, and demanding in writing that that section should apply here, for the reason the cause be forthwith transferred to Pierce that this is the case of a railway company county for trial; that the demand was denied, seeking to condemn a crossing over the prop- and thereafter an answer was filed, and the erty of another public service corporation. temporary injunction aforesaid was issued ; The statute in its terms is confined to the that thereafter, over the objection of relator, case of two railway companies, and we are the court assigned the cause for trial in Manot autliorized to extend its operation to otlı- son county on the 11th day of September, er cases. In any event, even if it were con- 1907, and that, unless prohibited by this strued as relator contends, this record shows court, the trial court will proceed to try the that the relator wholly denies the right or cause at said time; that the said court is power to con lemn at all in this instance, and without jurisdiction of the relator and of an effort to agree upon damages under such the subject-matter. It is also shown that circumstances would have been fruitless. an appeal from the order granting the tempoThe case is therefore analogous to the ab- rary injunction is now pending in this court. sence of a tender of performance of an obli
Relator's contention is that the trial court gation when the facts show that a tender
of Jason county is without jurisdiction, for would have been fruitless. In such a case the reason that the action is transitory and the tender may be excused. Under either has been commenced in the wrong countyview of the statute, relator is not entitled to
that is to say, in a county where the sole urge this point.
defendant does not reside; timely objection The judgment as to the necessity for ap
to the jurisdiction having been made, and propriation is affirmed, and the order of this
not subsequently waived. Ile therefore concourt suspending further proceedings is here
tends that, by reason of the absence of jurisby vacated.
diction, this court should now prohibit the
trial court from proceeding with the trial. RUDKIN, CROW', and MOUNT, JJ., con
The later decisions of this court are against cur.
relator's contention. In State ex rel. Miller v. Superior Court, 40 Wash. 555, 82 Pac. $77,
2 L. R. A. (X. S.) 395, 111 Am, St. Rep. 925, it (17 Wash. 154)
was held that prohibition does not lie to preSTATE ex rel. LA FURGEY . SUPERIOR
vent the trial court from proceeding to try COURT OF MASON COLXTY et al.
a cause, even if the court is without juris(Supreme Court of Washington. Sept. 9, 1907.)
diction by reason of the erroneous denial of PROJU BITION--OTHER ADEQUATE REMEDY. an application for a change of venue, for the I'rohibition will not lie to prevent trial
reason that there is an adequate remedy by of a cause, though the trial court is without jurisdiction bacause of its erroneous denial of
appeal, which is the test to be applied upon a change of venue: there being an adequate all applications for extraordinary writs. It remedy by ampeal, notwithstanding the delay
was also held that the delay and expense and expense incident thereto.
incident to an appeal do not affect the ade(Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Prohibition, $ 5.]
quacy of the remedy. See, also, State ex
rel. Port Orchard Investment Co. v. Superior I'rohibition, on the relation of Gideon A. La
Court, 31 Wash. 110, 71 Pac. 1100. Relator Furgey, against the superior court of Mason
therefore has his remely by appeal, and uncounty and the judge thereof. Writ denied.
cier the above derisions such remely cannot Carr & Soderberg, for plaintiff. Frank D. be held to be inadequate. Moreover, he has Nash, for respondents.
already appealed, and by stipulation the
briefs in the appeal are subinitted for our HADLEY, C. J. Original application was
I consideration in the cause now before us. made to this court for a writ of prohibition. I from those we are advised that the lack of directed to the superior court of Mason jurisdiction to issue the temporary injunction (ounty. The application shows that in a is the chief ground of the appeal. Relator is (ertain cause now pending in said court the l entitled to one submission of that question relator is defendant, and that an order grant here, and no more. The law has providel iny a temporary injunction against him was that it may be done by appeal, and he must entered therein: that the action is one for be restricted to that remedy, since it is not the cancellation of a contract and for un inadequate to afford bin relief. The fact that the remedy by appeal may subject him city of Spokane for keeping his place of busito inconvenience and expense does not de- ness open on Sunday in violation of a city stroy its effectiveness to ultimately reach ordinance. Upon being arrested and brought any unauthorized action the trial court may | before the police justice for trial, he applied take.
to the superior court of Spokane county for a The writ of prohibition is denied.
writ of prohibition to restrain the police jus
tice from further proceeding with the trial RUDKIN, CROW, and MOUNT, JJ., con- of the cause. From an order denying the cur,
writ, the present appeal is prosecuted.
The only question presented by the appeal
is thus stated in the appellant's brief: "Had (47 Wash. 156)
the municipal corporation of Spokane auSTATE ex rel. MARTIN v. HINKIE, Police
thority and power to pass an ordinance Justice.
which denounces an act to be an offense or (Supreme Court of Washington. Sept. 11, 1907.) crime, when the same act is also made an PROHIBITION-EXISTENCE OF OTHER REMEDY.
offense under the general statutes of the Prohibition will not lie to restrain a court state, in the absence of a statute granting from proceeding with a trial for violation of a to the municipality the specific power to do city ordinance; the only question being wheth
so?" er the city, in the absence of special authority,
Manifestly questions of this kind canhad power to make an act an offense when it not be determined on an application for a was such under a statute of the state, and there writ of prohibition. Such writs will only being an adequate remedy in the ordinary course of law, either by appeal from an adverse judg
issue to arrest the proceedings of a tribunal, ment or by habeas corpus.
corporation, board, or person, when such [Ed. Note:--For cases in noint, see Cent. Dig. proceedings are without or in excess of the vol. 40, Prohibition, $$ 4, 5.]
jurisdiction of such tribunal, corporation, Appeal from Superior Court, Spokane board, or person, and where there is no plain, County; Henry L. Kennan. Judge.
speedy, and adequate remedy in the ordinary Prohibition, on the relation of Fred Mar
course of law. Ballinger's Ann. Codes & St. tin, against J. D. Hinkle, police justice of
$$ 5769, 5770; State ex rel. Miller v. Superithe city of Spokane. Writ denied, and re
or Court, 40 Wash. 555, 82 Pac. 877, 2 L. R. lator appeals. Afirmed,
A. (N. S.) 395, 111 Am. St. Rep. 92.), and cas
es cited. In this case the appellant had an Flappy & Hindman and Sullivan, Nuzum
adequate remedy in the ordinary course of & Nuzum, for appellant. J. M. Geraghty, law, either by appeal from an adverse judgLester P. Edge, and J. D. Campbell, for re- ment or by application for a writ of habeas spondent.
The application for the writ was properly PER CURIAM. The appellant was com- denied, and the judgment is therefore af. plained against in the police court of the firmed.