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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, ren

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.

taken is based upon the verdict of a jury [Ed. Note.--For cases in point, see Cent. Dig. 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

pear to turn upon the question just adverted Company against R. Madsen and wife. From 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 laidh In an action to recover land, it was not

down the rule as it had been heretofore anerror for the court to give the jury two forms of yerdict, 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 thini 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 instructions given by the trial judge, and the giving

Appeal from Superior Court, King County ;

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

against A. A. Jones and another. From a constituted adverse possession, and we think 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. Dousto 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 band, $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 ;

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

also alleged that, in the event the abstract of title agreed to be furnished should not show good and sufficient title to the premises, then upon notification of such fact the defendants were to have 30 days within which to cure any defect that might appear, and, should they fail or refuse so to do, then the defendants should refund all sums of money paid; that, in pursuance of the agreement, which was made February 21, 1906, the plaintiffs 0:1 said day paid $250, and thereafter, upor. February 27, 1906, when the abstract of title was delivered to them, the further sum of $750 was paid; that thereupon the abstract of title was examined, with the result that it disclosed that the defendants did not have good and sufficient title; that plaintiffs served upon defendants a notice in writing, requesting them to correct the defects in the title, which they refused to do, and that, after 30 days had elapsed, they demanded the return of the $1,000 paid, which was also refused. The defendants deny that the title was defective. Their version of the transaction as to the details of payments is substantially the same as that of the plaintiffs, but they claim the benefit of the terms of a written contract which they delivered to plaintiffs :und which was by the latter accepted. That contract provided that the plaintiffs should be allowed five days for examination of the abstract after it should be furnished by the defendants. It also embodied the terms for payments heretofore stated, and provided that the plaintiffs agreed to complete the purchase in the manner and upon the terms stated; also that, in case of their failure so to do, the money paid should, at the op. tion of defendants, be forfeited as liquidated damages. It was also provided that the defendants should return to the plaintiffs the money paid if they should fail to deliver an abstract showing good and sufficient title within 30 days from the date of the contract, unless the defendants should correct any flaws that might be discovereil affecting the title within 30 days' time after the abstract should be examined, and after they should be notified of the defects. For plaintiffs' alleged failure to comply with the terms of the contract the defendants declared a forfeiture of the $1,000 paid as liquidated damages. The cause was tried before the court without a jury, resulting in a judginent for the defendants, from which the plaintiffs have appealed.

The assignments of error all relate to findings of the court. The court found the terms of the contract as to the payments as before stated that an abstract showing good and sufficient title to the property was to be delivered to appellants and 5 dilys allowed for examination thereof; that appellants agreed to complete the purchase upon the said terms, and that, in case of their failure so to do, the earnest money paid by then upon the purchase price should

be forfeited to the respondents as liquidated damages; that $250 was paid on February 24, 1906, and on February 27th an abstract was delivered to appellants; that on the 28th day of February appellants made a further payment of $750; that the appellants accepted the title from respondents. entered into possession of the property, and accepted the contract of purchase delivered to them by the respondents. It was further found that the respondents were the owners in fee simple of the property; that not until the 22d of March, 1906, which was just prior to the time for making a payment of $1.000 under the terms of the contract and long after the expiration of the 5 days within which the abstract was to be examined after its delivery, did the appellants make objections to the title; that they made no objections to the title within the 5 days agreed upon by the parties; that respondents demanded payment of said $1,000 according to the terms of the contract, and that subsequently, upon appellants' failure to make the payment, respondents notified them of their forfeiture of the payments made under the contract; that respondents tendered appellants, according to the contract, a good and sufficient marketable title, and performed the contract in all things by them to be performed, but that the appellants violated the terms of the contract by refusing to make the payments as therein provided.

There was ample evidence to sustain all the findings, and under the evidence before us we shall not disturb them. It seems very clear from the evidence that the 5-day provision for the examination of the abstract was as definite a condition as any of those relating to payments. That provision not only placed upon appellants the obligaltion to examine the abstract and discover their objections to the title within 5 days, but required them to promptly make known their objections, and respondents could then have 30 days from such notification to cure any actual defects in the title. Appellants not only failed to do this within the 5 days, but waited 23 days, and even made the payment of $750 one day after they had possession of the abstract. When the objection to the title was thus tardily made, no request was made of respondents that they correct the title in the particulars wherein it was criticized, and as they had the contract right to do within 30 days from the notification, but the appellants demanded the return of the $1.000 paid and the cancellation of the contract. Under the terms of the contract they had not the right to then make such a demand, for the reason that they were in default in making their objections, and they were also required to give respondents an opportunity to corrert the title. Moreover, we think the evidence was sufficient to sustain the tinding that respondents were the owners in fee simple.

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, , 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 be and 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

should be received to take effect, and this does not depend upon the acceptance or rejection of the resignation by the president.

The above expression has been criticised in subsequent decisions, for the reason that it was not necessary to the decision, inasmuch as the letter of resignation expressed a willingness to serve until a successor could be appointed and the officer did so serve. The decision was an early one, it having been rendered by the Circuit Court of the United States in 1839, and by reason of the said quoted expression frequent reference has been made to it.

We are directed by relator to a partial quotation from section 352, McCrary on Elections, which is to the effect that, when a written resignation has been sent to the Governor, it is not necessary that the Governor shall signify his acceptance of the resignation to make it valid; the tenure of office not depending upon the will of the executive but of the incumbent. In support of the text-writor's statement United States V. John C. Wright, supra, is cited, together with other cases to which we shall now refer. The case of People v. Porter, 6 Cal. 26, is quite similar to the case at bar. The written resignation of a county judge was received by the Governor on the 24th of August, to take effect September 1st. No action was taken by the Governor until the 8th day of September following, when he appointed a successor. Meantime the fact of the tendered resignation having become known through the newspapers, the board of supervisors of the county ordered an election to fill the vacancy supposed to exist. The election was held September 5th, and the elected person then sought possession of the office from the Governor's appointee who was appointed three days after the election. The appointee resisted the claim, on the ground that there was no vacancy at the time the election occurred, and that the vacancy did not occur until Septeinber 8th, when the Governor accepted the resignation and appointed the successor. It was said in the opinion that the resignation became effective September 1st, without any action on the part of the Governor. The statement appears to have been made upon the sole authority of what was said in United States V. John C. Wright, supra. The case was, however, determined in favor of the appointee in possession of the office, on the ground that the election was a nullity for want of sufficient notice. Under the theory of the decision it therefore seems to have been unnecessary to say what was said about the necessity of accepting a resignation, and under all these circumstances we are not disposed to give the opinion much weight as bearing upon the subject now before us. The next case cited is Gates v. Delaware County, 12 Iowa, 405. The opinion in that case declares, without referring to any authority, that an officer has a right to lay down his office whether the officer to whom

the resignation must be presented consents or not; yet in the opinion it was stated that the county judge, who was such officer in that instance, had actually accepted the resignation of the county superintendent. As a decision the opinion is therefore entitled to no weight upon the subject in hand. In State ex rel. Nourse v. Clarke, 3 Nev. 566, it was held that one holding a civil office under the United States may resign without the consent of the appointing power, and the holding was on the authority of United States v. John. C. Wright, supra, and People v. Porter, supra. A similar holding was made in State ex rel. Williams v. Fitts, 49 Ala. 402, and the decision was apparently made upon the authority of State ex rel. Nourse v. Clarke, supra, and People v. Porter, supra. The case of Bunting v. Willis, 27 Grat. (Va.) 144, 21 Am. Rep. 338, is also cited, but in that case it was said that a prospective resignation may be withdrawn at any time before it is accepted, thus recognizing that a resignation is not complete so as to create a vacancy until it has been accepted. The several decisions above noticed are all that are cited in support of the statement in McCrary on Elections, to which reference was above made. Through the relator, and also through our own investigation, the following further decisions have been called to our attention : State ex rel. Roberts v. Mayor, 4 Neb. 260, holds that the acceptance by the mayor of the resignation of a city engineer is not necessary to create a vacancy. The decision is on the authority of United States v. John C. Wright, supra, and People v. Porter, supra. In the case of Olmsted v. Dennis, 77 N. Y. 378, it was held that the resignation of a drainage commissioner was complete when it was received by the county judge, and that no formal acceptance was needed to give it effect. In the case of Reiter v. State ex rel. Durrell, 51 Ohio St. 74, 36 N. E. 943, 23 L. R. A. 681, the holding was similar, chiefly on the authority of the cases above cited.

The relator began his argument on the authority of United States v. John C. Wright, supra, and we have seen that his quotation from the text of McCrary on Elections was based upon that case and others which approved what was said in that case upon a subject which was not decisive of the case. The same section (352) of McCrary on Elections concludes as follows: “This, however, was not the rule at the common law, by which an office was regarded as a burden which the appointee was bound in the interest of good government to bear, and which he was not allowed to lay down without the consent of the appointing power. The Supreme Court of the United States has recently said that 'in this country, where offices of honor and emolument are commonly more eagerly sought after than shunned, a contrary doctrine with regard to such offices, and in some states with regard to offices in general, may have obtained; but we must assume that the con

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