Opinion Per Curiam.

[55 Wash. valid, to the extent that such road or highway has been prior to the passage of the act actually occupied. Its evident purpose was to protect investments made and property acquired in good faith under an ultra vires order of the county commissioners. The words "outside the limits of incorporated cities and towns," must then be held to refer to the time of the attempted grant, and to cover the acts of the grantee to the extent to which it has exercised the power attempted to be granted, and not to the date of the validating act. Otherwise the act of 1905 was a vain and useless thing, in so far as cities and towns were concerned, and all reference to them is an idle expression carrying no weight to extend or limit the operation of law. To give the act any other construction would necessitate the rejection of the words quoted altogether. This the courts cannot do arbitrarily. It is the duty of the court to give effect, if possible, to every word and phrase of an act when it is challenged.

The real question, therefore, is the power of the legislature to pass a curative act which will relate back and validate the occupation of a road or highway, which is afterwards, and before the passage of the act, included within the limits of an incorporated town. Respondent puts particular reliance upon the opinion of Chief Justice Dixon in Hasbrouck v. Milwaukee, 13 Wis. 42. In that case it was held that a void contract could not be validated by an act of the legislature as against the consent of a city. That case has no application here. The right of the town to contract is not impaired, nor does it suffer any unwarranted burden. The municipality was organized subject to property rights then existing or which the legislature might by general law thereafter recognize or create. Curative laws are not discountenanced because they are retroactive. Upon this point the authority relied upon has become a leading case in Wisconsin. As was said in Richland County v. Richland Center, 59 Wis. 591, 600:

"There is no constitutional inhibition against the passage

of retrospective laws as such. The only question in such case is whether the legislature intended them to have a retroactive effect, and, if so, such effect is given to them by the courts. The objection in respect to such laws is not because they are retroactive, but that they disturb vested rights or impair the obligation of contracts which were acquired or assumed under them and dependent upon them. In such cases they are invalid, not because retroactive, but on other constitutional grounds."

In that case the village had purposely failed to pay over certain moneys collected for liquor licenses, and which under existing laws should have been paid to the county for the support of the poor. An act was subsequently passed legalizing such conduct on the part of all offending boards, trustees, and city councils. The trial court held that the county had such a vested interest in the fund that the legislature could not take it away. Upon appeal the case was reversed, the court holding, inter alia, as above indicated.

Towns and cities are created by the authority of, and are subject to, the will of the legislature. If it could have authorized the act of appellant in the first instance by appropriate legislation, it can, by a subsequent act, ratify and confirm the ultra vires act of the commissioners, and thus preserve rights of property.

Judge Stiles in Baker v. Seattle, 2 Wash. 576, 27 Pac. 462, says that it is a principle long sustained by the courts, "that where a municipal corporation has done an act beyond its statutory powers, but within the powers which it was competent for the legislature to have conferred upon it, the act may be validated by a curative statute." The validity of such acts have been frequently upheld by this court. Holmes & Bull Furniture Co. v. Hedges, 13 Wash. 696, 43 Pac. 944; West Seattle v. West Seattle Land and Imp. Co., 38 Wash. 359, 80 Pac. 549; Lewis County v. Gordon, 20 Wash. 80, 54 Pac. 779; State ex rel. Latimer v. Henry, 28 Wash. 38, 68 Pac. 368; And, also, Pullman v. Hungate, 8 Wash. 519, 36 Pac. 483; State ex rel. Hemen v. Ballard,

16 Wash. 418, 47 Pac. 970; Abernethy v. Town of Medical Lake, 9 Wash. 112, 37 Pac. 306, in which the several municipalities were charged under the act of 1893 with obligations incurred by the antecedent void incorporation.

It cannot be held, as it seems to have been assumed, that the town of Monroe acquired upon its organization any vested right to the control of its streets in virtue of § 1011 of Ballinger's Code (P. C. § 3524). It is elementary that what is given by statute may be taken away by statute.

"It is an unsound and absurd proposition, that political power conferred by the legislature can become a vested right, as against the government, in any individual or body of men. It is repugnant to the genius of our institutions, and the spirit and meaning of the constitution, for by that fundamental law all political rights not then defined and taken out of the exercise of legislative discretion were intended to be left subject to its regulation. If corporations can set up a vested right against the government to the exercise of this species of power, because it has been conferred upon them by the bounty of the legislature, so may any and every officer under the government do the same.' It is competent for the legislature to transfer the control of the streets even to a body foreign to the corporation, and the moneys to repair 1 Dillon on Mun. Corp., 292; Bristol v. New Chester, 3 N. H. 524; Benson v. Mayor of New York, 10 Barb. 223; People v. Walsh, 96 Ill. 232." Richland County v. Richland Center, supra.

the same.

Our conclusion is that the act is vital to preserve the property of appellant, and that the town of Monroe must exercise its general powers subject to the right of appellant to maintain its water system as it is now maintained in the streets of the town, subject of course to such reasonable regulations as may now or hereafter be enacted by the town council. The rights of all municipalities affected by the act of 1905 are, as is most aptly stated by Chancellor Kent, "deemed to have vested subject to the equity existing against them and which the statutes have recognized and enforced."

The judgment of the lower court is reversed, and this

Oct. 1909]

Dissenting Opinion Per CROW, J.

cause remanded with instructions to overrule the demurrer to appellant's complaint.

CROW, J. (dissenting)—I dissent from the majority opinion. The act of 1905, on which appellant relies, fixes and limits the territory over which ratification is to extend. Its manifest purpose is to validate franchises within territory over which the commissioners still retain jurisdiction, and relieve the grantees and holders of void franchises from the necessity of making further application to the county commissioners for their renewal or validation. At the time of the passage of the act, the jurisdiction of the county commissioners over the streets and alleys of Monroe had been terminated by the incorporation of the town, and it would seem that the words "outside the limits of incorporated cities and towns" were only intended to apply to roads, alleys, and highways still under the jurisdiction and control of county commissioners at the date of the passage of the act, and to exclude those then within the territory of any such municipality, although outside at the time of the granting of the original void franchise. To adopt any other construction would be to withdraw from the town council a portion of its power and authority conferred by Bal. Code, § 1011 (P. C. § 3524), and deprive them of that complete authority over the streets, alleys, and highways within the municipality granted by that section.

I am of the opinion that the act did not validate the appellant's void franchise as to any street, alley, or highway, which at the date of its passage was within the municipal boundaries of the town of Monroe. When the town was incorporated, appellant was occupying a portion of its streets without legal right or authority. The complete jurisdiction of the town at that time extended by operation of law over all such streets freed from the burden of any franchise or rights asserted by the appellant, and this court should not hold that the act in question afterwards imposed any such burden, without the consent of the municipal authorities, unless it was

the clear and manifest intention of the legislature that such a condition should result. The use of the words "upon highways outside of the limits of incorporated towns,

are hereby confirmed and declared to be valid," precludes us from adopting any such construction.

The judgment should be affirmed.

[No. 8044. Department Two. October 5, 1999.]

B. SCHADE BREWING COMPANY, Appellant, v. FALLS CITY PICKLE WORKs et al., Respondents.1

WATERS AND WATER COURSES-DRAINS-SEVERANCE OF OWNERSHIPCOVENANTS-DOMINANT AND SERVIENT ESTATES. Where the owner, for his own convenience, constructed a drain across two lots to an outlet, and afterwards conveyed the dominant and servient estates to different parties by warranty deed, no obligation rests upon the grantee of the dominant estate to remove or close the drain, but the burden thereof rests upon the grantee of the servient estate.

Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered February 8, 1909, upon granting a nonsuit at the close of plaintiff's case, dismissing an action to enjoin the maintenance of a drain, and for damages. Affirmed.

H. M. Stephens, for appellant.

L. L. Westfall, for respondent Falls City Pickle Works. Graves, Kizer & Graves, for respondent Spokane & Inland Empire R. Co.

L. R. Hamblen, F. D. Allen, and Harry A. Rhodes, for respondent City of Spokane.

PER CURIAM. For some time prior to the year 1902, Cyrus Happy was the owner of blocks 17 and 18 in one of the additions to the city of Spokane. There was a pond on

'Reported in 104 Pac. 175.