more, for the successful operation of the
boom it is necessary to use a part of the up-
lands. It was not so in the case referred to.
There the boom company itself owned the
shore lands with the accompanying littoral
and riparian rights, and it was not sought to
appropriate any part of the uplands further
than for a right of way for the passage of
its employés, and possible consequent erosion
caused by the use of the shore lands in front
of the uplands as a booming place for logs.
In other words, the use of the claimant's
property in that case was not absolutely es-
sential to the successful operation of the
boom, but was rather a convenience than ne-
cessity, while in the case at bar the boom
cannot be operated at all without making use
of the respondents' property.
The judgment is affirmed.

Northern R. Co., 37 Wash. 537, 79 Pac. 1108, [ of shore lands in this state; and, furtherwhere we held that it was the duty of the trial judge to grant a new trial when, after giving full consideration to the evidence in the light of the verdict, he was still satisfied that the verdict is against the weight of the evidence, and that substantial justice has not been done; but the cases are not parallel. In that case the trial judge announced it as his deliberate conviction that the weight of the evidence did not sustain a certain element necessary to be shown in order to permit a recovery, but that he was without power to correct the error, as there was some evidence to support the finding, and he was not at liberty for that reason to disturb the finding. This court reversed the case for the reason that the trial judge failed to exercise a power with which he was fully vested, and which he failed to exercise because of the belief that he was not vested with it; but in the case at bar the trial judge had no doubt of his power to grant a new trial on the ground of insufficiency of the evidence to support the verdict, even though every element essential to a recovery was sustained by evidence. As we interpret his remarks, he meant to say that when the verdict was first returned he felt that it was excessive, but on more mature consideration he had changed his mind and was inclined to agree with the jury. At any rate, since his refusal to grant a new trial was not based on a misapprehension of his powers or duties, this court must treat his refusal as an exercise of his discretion in that regard, and reviewable for manifest abuse only.

Whether the verdict was in fact excessive is a more difficult question. Based upon the value of the land for agricultural purposes, it could not be justified under the most favorable view of the evidence; but the land was valuable as a boom site, and the jury had the right to take that fact into consideration in making up their verdict, and, viewing the verdict in the light of such fact, we are unable to say it is excessive. Moreover, in addition to the evidence contained in the record, the jury and trial judge had the advantage of a view of the premises, and could thus test the accuracy of the statements of the witnesses by their own observations. This fact makes us less reluctant to approve their findings.

The instruction of the court given in this case to the effect that the jury in making up their verdict could take into consideration the value of the respondent's premises as a boom site does not conflict with the rule announced by this court in the case of Grays Harbor Boom Co. v. Lownsdale, 102 Pac. 1041. The distinction between the cases lies in the fact that in the present case the respondents are the owners of the shore as well as the uplands, and the appurtenant littoral and riparian rights that attach to ownership

RUDKIN, C. J., and CHADWICK, MORRIS, and GOSE, JJ., concur.

STATE ex rel. MCINTOSH et ux. v. SU-
PERIOR COURT et al.

(Supreme Court of Washington. Dec. 9, 1909.)
1. EMINENT DOMAIN (§ 191*) - PROCEEDINGS

TO TAKE PROPERTY-PETITION.

The petition in condemnation proceedings, alleging that plaintiff is organized to construct and operate a railroad between specified places, and will be, when the road is completed, a common carrier, sufficiently shows that the right of way sought to be obtained is for a public purpose.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 512; Dec. Dig. § 191.*] 2. EMINENT DOMAIN (§ 10*)-POWER TO TAKE PROPERTY.

in private business in addition to its purpose Though a corporation is organized to engage to construct and operate railroads, it may exercise the power of eminent domain.

[Ed. Note.--For other cases, see Eminent Domain, Dec. Dig. § 10.*]

3. EMINENT DOMAIN (§ 169*)-RIGHT OF CON

termines the question of public use and necessity. | navigable stream, and that the consent of

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 54; Dec. Dig. § 14.*] 6. EMINENT DOMAIN (§ 171*)-RIGHT OF CON

DEMNATION.

That some of the stock of a railroad company was subscribed by trustees without disclosing their principals is no objection to the right of the company to condemn land for a right of way, as such subscription is valid. [Ed. Note.-For other cases, see Eminent Domain, Dec. Dig. § 171.*]

7. EMINENT DOMAIN (§ 10*)-RIGHT OF CON

DEMNATION.

That private individuals and corporations having a special interest in the construction of a railroad have subscribed to its capital stock, as authorized by Laws 1905, p. 51, c. 27, does not deprive the road of its public character, and right to condemn a right of way.

[Ed. Note.-For other cases, see Eminent Domain, Dec. Dig. § 10.*] 8. CORPORATIONS (§ 377*)-HOLDING OF COR

PORATE STOCK BY OTHER CORPORATIONS.

That Laws 1905, p. 51, c. 27, authorizing corporations to hold stock in another corporation, affords an opportunity of stifling competition in business, does not alone render the act unconstitutional.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1531-1534; Dec. Dig. § 377.*]

Department 2. Writ of review in the name of the state, on the relation of F. G. McIntosh and another, against the Superior Court of the State of Washington in and for Pacific county and others to review proceedings by which the Pacific & Eastern Railway Company sought to condemn land for a railroad right of way. Affirmed.

the Secretary of War to the bridging of the stream has not been obtained. This fact does not defeat the right of condemnation. State ex rel. Hulme v. Puget Sound, etc., Ry. Co., 103 Pac. 809.

It is further contended that the company has only built 61⁄2 miles of road since 1906, and has been guilty of laches. This defense we apprehend is not open to the relator. If the company is about to construct its road and utilize the property at the present time or in the near future, the proceedings are fully authorized by law. Under this heading, it is also claimed that a road for so short a distance is not a common carrier. The character of the use and not its extent or the

length of the road determines the question of public use and public necessity. State ex rel. Ami Co. v. Superior Court, 42 Wash. 675, 85 Pac. 669; State ex rel. Milwaukee Terminal Co. v. Superior Court, 103 Pac. 469.

Again, it is contended that a part of the capital stock of the petitioning company was subscribed by trustees without disclosing their principals. Such a subscription was held valid by this court in State ex rel. Biddle v. Superior Court, 44 Wash. 108, 87 Pac. 40, and State ex rel. Columbia, etc., Ry. Co. v. Superior Court, 45 Wash. 316, 88 Pac. 332. This must be true where the capital stock has been fully paid in, as in this case.

It is lastly contended that W. S. Cram, the president of the railroad company and one of

Flaskett & McMenamin, for relators. Welsh its trustees, is also a trustee and secretary of

& Welsh, for respondents.

RUDKIN, C. J. This is a proceeding to review an adjudication of public use and public necessity in a condemnation case.

The relator first contends that the petition for condemnation does not state facts sufficient to constitute a cause of action because it does not allege that the land sought to be taken will be devoted to a public use. True the petition does not contain these words, but it does allege that the company is organized to construct and operate a line of railroad from South Bend to Chehalis in this state, and will be, when the road is constructed, a common carrier of passengers and freight for hire. This clearly shows that the contemplated use is a public one.

It is next contended that, while the company is authorized to construct and build railroads, it is also authorized to engage in private business. Conceding this to be true. Conceding this to be true. the company may condemn and appropriate land in aid of its public purposes for public uses only. State ex rel. Harlan v. Centralia, etc., Co., 42 Wash. 632, 85 Pac. 344, 7 L. R. A. (N. S.) 198; State ex rel. Harris v. Superior Court, 46 Wash. 511, 90 Pac. 656.

the Silver Mill Company, a corporation, authorized to manufacture and sell lumber, and that said mill company has its plant and place of business at Raymond on the line of the proposed road; that the Silver Mill Company, the Willapa Lumber Company, and the Columbia Box & Lumber Company are all stockholders in the railroad company engaged in the manufacture and sale of lumber, and that the act of February 23, 1905 (Laws 1905, p. 51, c. 27), authorizing corporations to own and hold stock in other corporations, is unconstitutional, against public policy, and void. The fact that private individuals or private corporations having a special interest in the construction of a railroad subscribe to its capital stock does not deprive the road of its public character. The road, when constructed, will be a public service corporation, and must serve the public, regardless of the individuality of its stockholders or the business in which they may be engaged. State ex rel. Wilson v. Superior Court, 47 Wash. 397, 92 Pac. 269; Ulmer v. Lime Rock R. R. Co., 98 Me. 579, 57 Atl. 1001, 66 L. R. A. 387; Madera Ry. Co. v. Raymond Granite Co., 3 Cal. App. 668, 87 Pac. 27; Kansas, etc., Ry. Co. v. Northwestern, etc., Co., 161 Mo. 288, 61 S. W. 684, 51 L. R. A. 936, 84 Am. St. Rep. 717; Postal Tel., etc., Co. v. Oregon,

It is next contended that the proposed railroad must cross the Willapa river, a

etc., R. R. Co., 23 Utah, 474, 65 Pac. 735, 90 | fied that the whole of the lot was necessary
Am. St. Rep. 705; Hairston v. Danville, etc.,
R. Co., 208 U. S. 598, 28 Sup. Ct. 331, 52 L.
Ed. 637.

We find no error in the record, and the even insufficient, for the use of the railroad judgment is therefore affirmed.

4. APPEAL AND ERROR (§ 671*) BINDING EFFECT.

RECORD

The Supreme Court on appeal is bound by the record and the transcript, and can only sustain or reverse the case made therein.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 2867; Dec. Dig. $ 671.*] Department 1. Appeal from Superior Court, Snohomish County; W. W. Black, Judge.

Action by Rasmus Konnerup against Z. T. Allen and another. Judgment for plaintiff, and defendants appeal. On motion to dismiss. Motion granted.

S. J. White and E. C. Dailey, for appellants. Thos. A. Stiger and Jos. Coleman, for

respondent.

CHADWICK, J. This action was originally brought to recover the value of certain shingle bolts sold by respondent to appellants. The case went to trial upon the complaint and answer, in which appellants set up

the statute of frauds; the failure of respondent to fulfill his contract in that he had substituted bolts of an inferior quality, that there had been no acceptance, and that the bolts were held subject to the order of respondent. It was further alleged that appellants had been damaged in the sum of $90 on account of moneys paid for towing the bolts from Triangle Bay to appellants' mill at Edmonds, $2 a day for the use of the cribs, and $160 lost profits. For the towage and use of the cribs they claimed a lien on the bolts. A trial resulted in a judgment for respondent.

account of the number of shingles cut therefrom, which number was about 60 per cent. of number usually cut from reasonably good bolts; that appellants did not cut such shingle bolts as an acceptance of the same under a contract of any kind or description, but simply to get the use of said cribs, and at the same time to prevent the wanton destruction of said shingle bolts by throwing them into the waters of Puget Sound; that appellants have never accepted said shingle bolts as a compliance with any contract, or the fulfillment of a contract, nor have they

paid the judgment appealed from or settled the controversy." It is clear to us that the

response of appellants not only does not meet the showing made by respondent, but makes

it imperative that we make an end of this litigation. If the affidavit is taken at its full worth, it meets no issue which we are at liberty to decide or settle in this case. When sued, appellants might have accepted the bolts, and recouped against the purchase price such damages as they had sustained by reason of the breach of warranty as to quality, or they might have repudiated the transaction entirely. Benjamin, Sales (7th Ed.) 894 et seq. They chose the latter remedy. Manifestly it is not within the power of this court to try a new issue, nor is it in the power of the appellants to switch their case on appeal. We cannot assume the functions of a trial court and try an issue which, had it been tendered in the court below, would have required testimony to sustain it, and, if supported, carried a different measure of damage. Having elected to hold the shingle bolts subject to the order of respondent, appellants could not thereafter cut them into shingles and preserve their rights in the present case. They cannot by thus making return of a loss of 40 per cent. in cutting overcome the finding of the lower court that the bolts were all merchantable. Appellants had alleged the bolts to be the property of respondent. They cannot now be heard to maintain a defense which can be based only upon title in themselves.

The trial court found that the bolts were in fact merchantable, and had been inspected and received by appellants. Pending this appeal, as it now appears, appellants have cut the bolts into shingles, and we are confronted by a motion to dismiss the appeal and for an affirmance of the judgment, because the subject-matter of the litigation has ceased to exist. In opposition to this showing, one of the appellants makes affidavit: "That at the time of the rendition of the judgment in the trial court in said action the shingle bolts mentioned and described in the affidavit in support of said motion of respondent were lying and being on the cribs of appellants; that appellants had theretofore demanded of respondent that he remove said shingle bolts from said crib, and respondent refused and failed to do so; that said cribs cost appellants about $300, and were fast being destroyed by the action of teredos; that appellants were greatly in need of the use of said cribs for use in the business for which they were built; that appellants did not wish to wantonly destroy the property of respondent, and there was nothing else for appellants to do but to cut said shingle bolts into shingles, and, in doing so, have kept an accurate

We are bound by the record and the transcript, and can only sustain or reverse the case made therein. The affidavit of appellants, notwithstanding their disclaimer, shows that the defense heretofore relied upon has been forsaken. We must hold that this case falls within that line of cases establishing the rule that a court will not decide a case where the subject-matter of the appeal has ceased to exist. Mackay v. Dever, 49 Wash. 439, 95 Pac. 860; Kelso v. American Inv. & Imp. Co., 48 Wash. 5, 92 Pac. 673. The appeal is dismissed.

RUDKIN, C. J., and FULLERTON, MORRIS, and GOSE, JJ., concur.

FARMERS' & MERCHANTS' NAT. BANK
OF HOBART v. SCHOOL DISTRICT
NO. 56 et al.

1886, c. 818, § 4, 24 Stat. 171; Ray v. School Dist. No. 9, 21 Okl. 88, 95 Pac. 480.

No authority is cited by either side and the case as to such jurisdiction is one of first impression in this court. Secton 1, art. 3,

(Supreme Court of Oklahoma. Dec. 7, 1909.) 1. COURTS (§ 122*)-JURISDICTION-JURISDIC- c. 7, p. 87, Sess. Laws 1905, provides: "EvTIONAL AMOUNT-PLEADING.

Section 2, art. 3, c. 7, p. 87, Sess. Laws 1905, providing that, after notice, the municipality may proceed before the probate court of the county (now county court) if the amount be less than $1,000, and before the district court if it exceed that sum, in order to have the amount of the outstanding legal indebtedness determined, held, that the jurisdiction of such court depended upon the allegations of the petition, and not the amount of the outstanding legal indebtedness as finally decided or determined by such court.

[Ed. Note.-For other cases, see Courts, Cent. Dig. § 427; Dec. Dig. § 122.*]

2. APPEAL AND ERROR (§ 977*) - REVIEW GRANT OF NEW TRIAL.

The erroneous granting of a new trial by the lower court involving solely a question of law will be reversed on appeal in this court. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3865; Dec. Dig. § 977.*]

(Syllabus by the Court.)

ery county, every city of the first class, the board of education of every city, every township, and every school district, is hereby authorized and empowered to refund its indebtedness, including bonds, judgments and warrants, as hereinafter provided, upon such terms as can be agreed upon, and to issue new bonds with semi-annual interest coupons attached in payment for any sum so refunded; which bonds shall be sold at no less than

par, and shall not be for a longer period than thirty years, shall not exceed in amount the actual amount of outstanding indebtedness, inclusive of attached coupons and shall not draw a greater interest than six per cent. per annum." Section 2 provides for notice, stating that on the day named therein the municipality will proceed before the probate court of the county, if the amount be less than $1,000, or before the district court if

Error from Kiowa County Court; J. W. the amount exceed $1,000, to make a showing Mansell, Judge.

Action between the Farmers' & Merchants' National Bank of Hobart and School District No. 56 and others. From the judgment, the bank brings error. Reversed and remanded.

George L. Zink and J. H. Cline, for plaintiff in error. C. A. Morris, for defendants in

error.

WILLIAMS, J. The question here for determination is as to whether or not the jurisdiction attaches by virtue of the allegations of the petition, or is to be determined by the final ascertainment made by the court as to the amount of its outstanding legal indebtedness. The original petition herein alleged the outstanding indebtedness due and unpaid to be the sum of $1059.92; a list of warrants aggregating that sum being attached as a part thereof. But it was further alleged by amendment that two certain warrants, to wit, No. 2, for $400, and No. 3, for a like sum, were illegally issued and without authority of law, and that warrant No. 8, for $30.90, was without consideration. was alleged originally that the assessed valuation of the taxable property of the school district, as determined by the last finding of the county commissioners as a Board of Equalization, amounted to $11,495. By amendment, it is alleged that the equalization valuation of the taxable property of the school district for the last preceding assessment was only $9,596, 4 per cent. of which would amount to $383.84. This would constitute the maximum amount of indebtedness that could be legally incurred under the limitations imposed by Act Cong. July 30,

It

and ask the court "to hear and determine the amount of the outstanding legal indebtedness of said municipality, and to sign the bonds to be issued in payment of the same, and any person interested may remonstrate against the issuance of the same." Section 3 provides that on the day named in the notice the officers authorized to issue bonds shall go before the court and make proof, to the satisfaction of the court, of the existence, character, and amount of the outstanding legal indebtedness of said municipality; that, on such proof being made, the court shall cause to be made upon the records of the court a statement of finding to that effect, and shall then, in open court, proceed to sign each bond to be issued up to the amount of said indebtedness so proven and approved, and shall, after expiration of the time for taking appeals, if no appeal be taken, deliver the same to the treasurer of said municipality issuing the same, who shall be chargeable therefor, and shall be liable on his official bond for said bonds, appeals in such judgment to be allowed as provided by law. "The jurisdiction of the tribunal does not depend upon the actual facts alleged, but upon the authority to determine the existence or nonexistence of such facts, and to render judgment according to its findings. If such authority exists then the tribunal has jurisdiction of the subject-matter." 1 Bailey on Jurisdiction (1899) p. 2, § 2. See, also, to the same effect, Brown on Jurisdiction (2d Ed.) § 19b, p. 98. "It is the claim as presented, not the claim as decided or allowed, which primarily determines the question of jurisdiction in the trial or lower court, and hence constitutes therein the amount in controver

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes