ruling, the second error is assigned. "An indictment for perjury may embrace in a single count all the particulars in which the defendant is alleged to have sworn falsely; but each fact sworn to should be stated in definite and separate assignments, and each traversed, so that, if either assignment is proved, the indictment may be sustained. If one assignment of perjury is sufficient, an improper assignment in connection with it will not vitiate the indictment. The fact that an indictment states two distinct false statements under oath does not render the indictment bad if the statements were both given under one oath and in one proceeding." 30 Cyc. 1439. There was no error in the ruling complained of. The appellant at the trial offered to prove the status of the civil action in which the false testimony is alleged to have been given, but an objection interposed by the state was sustained. This ruling was erroneous and prejudicial. The defendants in the civil action were the principal witnesses against the appellant on the trial of the criminal prosecution. If the judgment appealed from is affirmed, the appellant is rendered incompetent to testify in the civil action or any other case, unless he shall receive a pardon. Ballinger's Ann. Codes & St. § 5992 (Pierce's Code, § 938). The defendants in the civil action would profit by the conviction of the appellant to that extent, and it was clearly competent to show that fact and to have the jury properly instruoted as to the effect of the conviction. In practice a prosecution for perjury is frequently continued until the proceeding in which the perjury is alleged to have been committed is ended. 30 Cyc. 1324. But, if not continued and the parties to the pending civil action are witnesses against the accused on the trial of the criminal action, the accused has an unquestionable right to show that they will profit by his conviction. For some reason the civil cause had not been decided at the time of the trial of the present action-perhaps because of the death of the presiding judge-and the appellant was permitted to show that fact; but he had a right to go further, and show that the civil action was still pending and for trial. Reversed and remanded. An owner granted to a county the right to hold a strip of land for a highway for 5 years, at which time the land should revert to him. The highway was constructed and used for about 18 years. The county expended public money on the highway, but the greater part of the expenditures were made either during the 5-year period or over the owner's protest. The county at different times refused to expend public money on the highway. either because it had no right of way over the land, or because the right of way was in dispute. The owner at all times paid taxes on the right of way, and at different times maintained gates across it. Held, not to establish a highway by prescription, for the use by the public was not in hostility to the title of the owner. [Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 10, 12-14, 16, 18; Dec. Dig. § 7.*1 Department 1. Appeal from Superior Court, Pierce County; M. L. Clifford, Judge. Action by Anna Scheller and another against Pierce County. From a judgment of dismissal, plaintiffs appeal. Reversed, with directions. H. W. Lueders and Harry E. Phelps, for appellants. J. L. McMurray and F. D. Oakley, for respondent. RUDKIN, C. J. During the year 1890 the board of county commissioners of Pierce county laid out a public road along the section line between sections 21 and 22, in township 20 N., range 2 E., W. M. Albert Whyte and wife then owned 145 acres in section 22 abutting on the proposed road. At that time the board did not deem it advisable to construct the new road the entire distance along the section line, because of the expense of bridging a slough adjacent to the Whyte lands. The board, therefore, procured from Whyte and wife a temporary dedication or grant of a right of way across the above-described lands, which appears in the abstract of title, in evidence in the following words: "Do grant, convey and dedicate to the county of Pierce, Washington, for the use of the public as a county road the following lots, pieces or parcels of land, situate, lying and being in the county of Pierce and state of Washing GOSE, MORRIS, CHADWICK, and FUL- ton and particularly bounded and described LERTON, JJ., concur. (55 Wash. 298) SCHELLER et al. v. PIERCE COUNTY. (Supreme Court of Washington. Oct. 19, 1909. 1. HIGHWAYS (§ 7*)-ESTABLISHMENT-PRESCRIPTION. A highway may exist by prescription, but the essential elements of adverse possession, as follows, to wit: Thirty feet on each side of a line described as follows: Beginning at a point 26.21 chains east of the southwest corner of section 22, township 20, north of range 2 east, run N. 37° 30′ W., 7.23 chains, thence N. 16° W. 4.15 chains, thence east 4 chains, thence S. 53° 30' east 16.30 chains. To have and to hold the said premises unto the said Pierce county and its successors for the use of the public for a term not exceeding five years from the date here For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes of, at which time said tract shall revert to it were once understood that a man, by althese grantors." The road was thereupon lowing his neighbor to pass through his constructed over the right of way describ-| farm without objection over the passway ed in the foregoing grant, and has been which he used himself, would thereby, aftused from that time up to the present. er the lapse of 20 or 30 years, confer a right There is testimony tending to show the on him to require the passageway to be kept following facts: The county expended pub- open for his benefit and enjoyment, a prohilic money in constructing and repairing a bition against all such travel would immebridge across the slough on the Whyte land diately ensue. To create the presumption of from time to time, but the greater part of a grant of a right of way, the circumstances the expenditures were made either during the attending its use must be such as to make 5-year period covered by the written con- it appear that it was established for the tract, or over the plaintiffs' protest imme- benefit of the claimant, or that its use was diately preceding the commencement of this accompanied by a claim of right, or by such action. The road has been used for about acts as manifested an intention to enjoy it, 18 years in all by all persons desiring to without regard to the wishes of the owner travel the same. The county at different of the land. The use must have been entimes refused to expend public money on joyed under such circumstances as will inthat portion of the road in controversy, ei- dicate that it has been claimed as a right, ther because it had no right of way for the and has not been regarded by the parties road, or because the right of way was in merely as a privilege, revocable at the pleasdispute. The plaintiffs and their predeces- ure of the owner of the soil.'" Jones on sors in interest have at all times paid taxes Easements, § 282. Again: "If the use of a on the right of way over their lands, and at way was begun under a license to one who different times maintained gates across the afterwards repudiated the license, he can right of way to exclude stock. The present acquire a right by prescription only by use action was instituted by the successors in of the way for the period of limitation, aftinterest of the Whytes to restrain the county er he has repudiated the license, and claim and its officers from tearing down or inter- a right in himself, adverse to the owner of fering with fences constructed across the the land, with knowledge of such claim and right of way on the Whyte land. The coun- acquiescence in it by the owner of the land.” ty defended on the sole ground that the Id. § 284. "If permissive in its inception, locus in quo was a public highway, and this then such permissive character being stampis the sole question involved in the case. ed on the use at the outset, will continue of The court below found that there was a the same nature, and no adverse user can public highway by prescription, as claim- arise until a distinct and positive assertion ed by the county, and dismissed the action. of a right hostile to the owner, and brought From this judgment the property owners home to him, can transform a subordinate have appealed. and friendly holding into one of an oppoA highway may exist by prescription in site nature, and exclusive and independent this state. Smith v. Mitchell, 21 Wash. 536, in its character." Pitzman v. Boyce, 111 Mo. 58 Pac. 667, 75 Am. St. Rep. 858; Yakima 387, 19 S. W. 1104, 33 Am. St. Rep. 536. County v. Conrad, 26 Wash. 155, 66 Pac. 411; See, also: Nelson v. Nelson, 41 Mo. App. Seattle v. Smithers, 37 Wash. 119, 79 Pac. 130; Hurt v. Adams, 86 Mo. App. 73; Penn615. At the same time all the essential ele-sylvania Ry. Co. v. Hulse, 59 N. J. Law. 54, ments of adverse possession must be pres- 35 Atl. 790; 14 Cyc. 1151; Shell v. Poulson, ent. The possession or use must be supra; Watson v. County Commissioners, notorious, continuous, and adverse. v. Poulson, 23 Wash. 535, 63 Pac. 204; Wat open, son v. County Commissioners, 38 Wash. 662, 80 Pac. 201. Under the admitted facts in this case it seems to us that the use by the public was not adverse or in hostility to the title of the true owners. There was clearly no adverse holding during the period covered by the written contract, and nothing transpired after that time to convert the permissive use into an adverse use, except mere lapse of time. Ordinarily this will not suffice. "If the use of a way over one's land is shown to be permissive only, no right to use it is conferred, though the use may have continued for a century or any length of time. A different doctrine would have the tendency to destroy all neighborhood accommodation in the way of travel; for if supra. The judgment of the court below is reversed, with directions to enter judgment in accordance with the prayer of the complaint. CHADWICK, GOSE, MORRIS, and FUL LERTON, JJ., concur. (55 Wash, 259) FRANSIOLI v. THOMPSON et al. (Supreme Court of Washington. Oct. 11, 1909.) 1. PRINCIPAL AND SURETY (§. 99*)-RELEASE OF SURETY. Where a bond is executed to secure the cost of a particular work, the sureties cannot be held for the cost of performing an entirely different work, and, while slight changes will Where a contract for street grading provided for the erection of a retaining wall of cedar cribbing, which was compartively cheap, the substitution of an expensive concrete wall was such a change in the contract as released the sureties on the contractor's bond. Loveday, Kelley & McMillan, for appellant. T. L. Stiles, F. R. Baker, and F. A. Latcham, for respondent city of Tacoma. E. R. York and John P. Hartman, for respondent Empire State Surety Co. Chas. W. Stewart, for respondent Thompson & Langford. FULLERTON, J. The appellant brought this action to recover the price of certain cement sold by him to one C. D. Elmore, and [Ed. Note.-For other cases, see Principal and used in the construction of a concrete reSurety, Cent. Dig. §§ 158-161; Dec. Dig. §taining wall erected by Elmore as a part of 99.*] RIAL. 3. MUNICIPAL CORPORATIONS (§ 345*)-PUBLIC IMPROVEMENTS LIABILITY FOR MATEUnder Pierce's Code, §§ 6121-6123 (Ballinger's Ann. Codes & St. §§ 5925, 5926), requiring a city, on letting a contract for street grading, to take a bond from the contractor to pay materialmen, under the penalty of itself becoming liable for the cost of material furnished, where, after letting a contract, the city so changed the same as to relieve the bondsmen on the contractor's bond, and failed to take a bond to cover the additional liability created by the change of plans, the city itself became liable. [Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 345.*1 4. MUNICIPAL CORPORATIONS (§ 345*) - PUBLIC IMPROVEMENTS. The right of materialmen to hold the city was not affected by the fact that the cost of the improvement was to be paid by assessments on the abutting property. [Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 345.*] 5. MUNICIPAL CORPORATIONS (§ 365*)-PUBLIC IMPROVEMENTS-CHANGE OF PLAN. A public improvement having been completed and accepted by the city according to a change in the plans, the city was estopped to contend that the change was not authorized. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 898; Dec. Dig. 8 365.*] 6. PLEADING (§ 48*)-COMPLAINT. In this state, the proper way to state a cause of action is to set forth in the complaint, in plain and concise language, the facts giving rise to the action, and when this is done, the complaint is judged by the facts pleaded, and not by any technical rule obtaining under the common law. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 105, 106; Dec. Dig. § 48.*] 7. ACTION (§ 50*)-MISJOINDER OF CAUSES OF ACTION. In an action against a city and others, that the other defendants were brought in and sought to be held on a theory that would exonerate the city did not constitute a misjoinder of causes of action; plaintiff not being obliged to determine legal questions involved at his peril. [Ed. Note.-For other cases, see Action, Cent. Dig. 88 511-547; Dec. Dig. § 50.*] Department 1. Appeal from Superior Court, Pierce County; M. L. Clifford, Judge. Action by P. J. Fransioli against R. M. Thompson and others. Judgment for defendants, and plaintiff appeals. Affirmed in part and reversed in part, and remanded with instructions. a street improvement in the city of Tacoma. To his amended complaint demurrers were interposed by the several defendants, which demurrers the trial court sustained. The appellant thereupon elected to stand on his complaint, when judgment of dismissal and for costs was entered against him. The ultimate question for determination, therefore, is, Does the amended complaint state a cause of action against the respondents, or either of them? In substance, it is alleged in the complaint that the city of Tacoma entered into a contract with the respondents Thompson & Langford, whereby Thompson & Langford agreed to grade and otherwise improve a certain street of that city according to plans and specifications agreed upon, for a consideration of $6,975, and that these respondents, together with the respondent the Empire State Surety Company entered into the statutory bond with the city of Tacoma, conditioned among other things to pay for all material that should be used in the construction of the improvement; that subsequent thereto the respondents Thompson & Langford sublet the grading of a part of the street to one C. D. Elmore; that after the contract had been sublet, the city of Tacoma, by its commissioner of public works, made a change in the original plans and specifications under which the work was to be executed by substituting a concrete retaining wall for a wall of cedar cribbing provided for in the original specifications, without taking an additional bond to cover the cost of making the change; that thereafter, and between June 26, 1907, and August 5, 1907, the appellant sold and delivered to Elmore 620 barrels of cement of the reasonable value of $1,660.08, to be used in, and which were actually used in, the construction of the substituted concrete wall; that the cement was not paid for, and prior to 30 days after the work performed by the contractor had been accepted by the city, the appellant served a notice in writing upon the city, notifying it that it had a claim in the sum of $1,660.08 against the contractors for the amount so furnished; that before commencing his action he demanded of the respondents, and each of them, payment for the cement sold the contractor, but payment was refused. For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes The demurrer of the respondents Thomp- of their obligation to pay the costs of conson & Langford and the respondent the Em-struction under those plans, and failed to pire Surety Company was sustained by the take a bond to cover the additional liability court, on the ground that the change made created by the change of plans. We are in the plans and specifications for the im- aware that the city contends that the comprovement of the street by which a concrete missioner of public works had no authority retaining wall was substituted for a retain- to allow a change in the plan of construcing wall of cedar cribbing was such a rad- tion, and that as a consequence his acts in ical variance in the terms and conditions of that regard are not binding on the city, and the contract as to relieve the bondsmen of the create no additional liability on its part. obligation to pay for the material used in the But an inspection of the specifications which substituted wall. The demurrer of the city are set out in the complaint show that the was sustained, on the ground that two caus- commissioner had general powers of superes of action had been improperly united in vision; that he was the person to whom the the complaint. The ruling of the court on letting of the contract was intrusted, the perthe demurrers of Thompson & Langford and son who had power to accept or reject bids the Empire State Surety Company is thought for the work, and the person with whom the to be erroneous under the authority of the surety bonds must be filed and approved, and case of Griffith v. Rundle, 23 Wash. 453, 63 the person who must finally approve the Pac. 199, 55 L. R. A. 381. But that case is work. Moreover, the work was completed not authority for the principle that no change and accepted by the city according to the in a contract for a public improvement can change in the plans, and clearly it is estoprelieve from liability the persons who have ped to contend that the change was not auexecuted the statutory bond conditioned for thorized. Nor is the right of the materialthe payment of materials used in making the man to hold the city affected by the fact improvement. On the contrary, the rule still that the cost of the improvement was to be is that where a bond is executed to secure paid by assessments upon the abutting propthe cost of the performance of a particular erty. The city became liable by its neglect work, the bondsmen cannot be held for the to comply with the terms of a statute intendcost of performing an entirely different work. ed to protect materialmen, and this liability Slight or immaterial changes in a contract cannot be affected by the manner in which of this kind, of course, do not affect the it proposed to raise funds with which to pay liability of the bondsmen, but a radical the general cost of the improvement. change, such as the substitution of an enThe claim that there was a misjoinder of tirely different thing for the thing contract- causes of action is also untenable. In this ed for, will work that result. In this case state the proper way to state a cause of acthe complaint shows in detail the changes tion is to set forth in the complaint, in plain made in the character of the work. It ap- and concise language, the facts giving rise pears therefrom that the change was rad- to the action; and, when this is done, the ical; that it substituted an expensive bulk-complaint is judged by the facts pleaded, and head for one that was comparatively cheap, not by any technical rule obtaining under and it is impossible to say at this time, the common law. The fact that other dewhether there would have been a deficiency | fendants were brought in and sought to be at all had the city adhered to the plans and specifications adopted at the time the bond was given. Since neither Thompson & Langford nor the Empire State Surety Company were liable to the appellant for the materials furnished by him, other than such liability as the bond created, it follows that their demurrers were rightly sustained by the court. held on a theory that would exonerate the city does not affect the result. The complainant had the right to make parties defendant all persons connected with the contract whom he conceived to be liable, set forth in his complaint the facts which constituted his cause of action, and take the judgment of the court on the liability of the several defendants, even though a ruling holding one liable must of necessity exonerate the others. The plaintiff was not obligated to determine the legal questions involv ed at his peril. He had the right to set out the facts and submit the legal questions to the judgment of the court. The demurrer of the city we think should have been overruled. By the terms of the statute (Pierce's Code, §§ 6121-6123 [Ballinger's Ann. Codes & St. §§ 5925, 5926]) the city, on letting a contract for the grading of one of its streets, is obligated to take a bond from the contractor to pay the materialmen The judgment appealed from is affirmed as who furnish material for use in the making to all the respondents other than the city of the improvement, under the penalty of it- of Tacoma; as to the city of Tacoma the self becoming liable for the cost of the ma- judgment is reversed, and the cause remandterials so furnished. In the instant case, ired, with instructions to reinstate the same, so far as this concrete wall is concerned, the and require the respondent city to answer to city stands in the position of having failed the merits of the complaint. to require a bond to be furnished, as it suffered such a radical change to be made in RUDKIN, C. J., and MORRIS, CHAD (39 Mont. 115) COTTONWOOD DITCH CO. v. THOM. (Supreme Court of Montana. Oct. 11, 1909.) WATERS AND WATER COURSES (§ 32*)-STAT UTES. Rights acquired under Rev. St. U. S.. § 2339 (Ü. S. Comp. St. 1901, p. 1437), providing that when by priority of possession rights to the use of water for agricultural purposes have vested, the owner thereof shall be protected, and confirming the right of way for the construction of ditches, etc., were not forfeited by failure to comply with Act March 3, 1891 (U. S. Comp. St. 1901, p. 1570, § 2477) §§ 18, 20, granting the right of way to canal and ditch companies for irrigation purposes. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 21; Dec. Dig. § 32.*] On rehearing. Former decision (101 Pac. 825) adhered to. W. S. Hyde, Harry C. Groves, and Walsh & Nolan, for appellant. Geo. W. Pierson, for respondent. SMITH, J. After the decision on appeal in this case, May 14, 1909, counsel for the appellant filed a motion for a rehearing, calling the attention of the court, for the first time, to an act of Congress dated March 3, 1891 (see section 2477, U. S. Comp. St. 1901, p. 1570), sections 18, 19, and 20 of which act read as follows: "Sec. 18. That the right of way through the public lands and reservations of the United States is hereby granted to any canal or ditch company formed for the purpose of irrigation and duly organized under the laws of any state or territory, which shall have filed, or may hereafter file, with the Secretary of the Interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of the ground occupied by the water of the reservoir and of the canal and its laterals, and fifty feet on each side of the marginal limits thereof; also the right to take, from the public lands adjacent to the line of the canal or ditch, material, earth, and stone necessary for the construction of such canal or ditch: Provided, that no such right of way shall be so located as to interfere with the proper occupation by the government of any such reservation, and all maps of location shall be subject to the approval of the department of the government having jurisdiction of such reservation, and the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective states or territories. "Sec. 19. That any canal or ditch company desiring to secure the benefits of this act shall, within twelve months after the location of ten miles of its canal, if the same be upon surveyed lands, and if upon unsurveyed lands, within twelve months after the survey thereof by the United States, file with the register of the land office for the district where such land is located a map of its canal or ditch and reservoir; and upon the approval thereof by the Secretary of the Interior the same shall be noted upon the plats in said office, and thereafter all such lands over which such rights of way shall pass shall be disposed of subject to such right of way. Whenever any person or corporation, in the construction of any canal, ditch, or reservoir, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. "Sec. 20. That the provisions of this act shall apply to all canals, ditches, or reservoirs, heretofore or hereafter constructed, whether constructed by corporations, individuals, or association of individuals, on the filing of the certificates and maps herein provided for. If such ditch, canal, or reservoir, has been or shall be constructed by an individual or asso ciation of individuals, it shall be sufficient for such individual or association of individuals to file with the Secretary of the Interior, and with the register of the land office where said land is located, a map of the line of such canal, ditch, or reservoir, as in case of a corporation, with the name of the individual owner or owners thereof, together with the articles of association, if any there be. Plats heretofore filed shall have the benefits of this act from the date of their filing, as though filed under it: Provided, that if any section of said canal, or ditch, shall not be completed within five years after the location of said section, the rights herein granted shall be forfeited as to any uncompleted section of said canal, ditch, or reservoir, to the extent that the same is not completed at the date of the forfeiture." A rehearing was granted, and the cause has been reargued. The contention of the appellant now is that, having failed to comply with the provisions of the act of 1891, the respondent and its predecessors acquired no right of way for their ditch across the land in question, for the reason that, before water was actually conveyed through the ditch, the homestead rights of appellant had attached. The respondent argues (1) that the act of 1891 has no reference to small enterprises like the construction of its ditch, which is only seven miles long; and (2) that a failure to comply with the provisions of the act of 1891 cannot be taken advantage of by a private person, but is a matter which concerns the federal government alone. A history of the causes which impelled the passage by the Congress of the act of 1891 would doubtless throw considerable light upon the question of the proper construction to be placed upon that piece of legislation, but we do not deem it necessary to make the investigation. We are still of opinion that sec For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |