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THE

PACIFIC REPORTER.

VOLUME 91.

(46 Wash. 640)

SPOKANE VALLEY LAND & WATER CO v. MADSEN et ux. (Supreme Court of Washington. July 26, 1907.) JUDGMENT-RES JUDICATA.

The decision, in an action to restrain a water company from maintaining a dam, rendered on appeal from an order enjoining the company from using the dam and directing it to commence an action for condemnation of the littoral rights of the plaintiffs therein, that plaintiffs had rights in the waters, is conclusive, where, in a subsequent action by the company to condemn the rights of such plaintiffs, there is presented a ground for a contrary holding, which might have been, but was not, presented on the appeal in the former case.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, § 1241.]

Appeal from Superior Court, Spokane County; W. A. Huneke, Judge.

Suit by the Spokane Valley Land & Water Company against R. Madsen and wife. From a judgment for defendants, plaintiff appeals. Affirmed.

Happy & Hindman and Allen & Allen, for appellant. Gallagher & Thayer, for respondents.

ROOT, J. This case was before the court once before, and may be found reported in 40 Wash. 414, 82 Pac. 718, 6 L. R. A. (N. S.) 257. The present appeal is from a judgment of the superior court awarding respondents damages occasioned by appellant in condemning and appropriating the waters of a nonnavigable arm of Liberty Lake.

The appellant contends that, inasmuch as the lands of respondents affected herein were acquired from the government subsequent to the act of Congress approved March 3, 1877, the owners of said lands have no littoral or riparian rights in the waters of the arm of the lake in question. The act of Congress provides, among other things, as follows: "And all surplus water, over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes, subject to existing rights."

91 P.--1

Appellant sustains its contention by an elaborate and able argument, which would appeal with much force to the writer of this opinion, were the question properly before the court at this time. But, in view of the former adjudication between these same parties relative to the same subject-matter, we are constrained to hold that this question is not now before us. It could have been (but was not) presented when the case was here before. The decision announced at that time must, for the purposes of the present hearing, be deemed binding as between the parties.

The judgment from which this appeal is taken is based upon the verdict of a jury summoned to hear evidence and pass upon the question of damages. Certain errors are assigned upon the giving and refusal of instructions by the trial court. These all appear to turn upon the question just adverted to, or upon others which were, or could or should have been, submitted at the former hearing. The jury having been properly instructed in accordance with the law of the case as theretofore announced by this court, we must hold the exceptions not well taken. The judgment is affirmed.

HADLEY, C. J., and MOUNT, CROW, and FULLERTON, JJ., concur.

(46 Wash. 613)

STANGAIR v. ROADS.

(Supreme Court of Washington. July 22, 1907.)

1. TRIAL INSTRUCTIONS INVADING PROVINCE OF JURY.

In an action to recover land claimed under adverse possession, an instruction stating: "The Supreme Court has laid down the rule, which I give you as the law in this case: If one by mistake incloses the lands of another and claims it as his own, his actual possession will work a disseisure; but if, ignorant of the boundary line, he makes a mistake by laying his fence, making no claim, however, to the lands up to the fence, but only to the true line as it may be subsequently established, and it turns out that he has inclosed the land of the adjoining proprietor, his possession to the land is not adverse"-was not erroneous as an invasion of the province of the jury or a comment upon the facts of the case.

2. SAME-VERDICT-DUTY OF COURT TO REQUIRE SPECIAL FINDINGS-STATUTES.

In an action to recover land, it was not error for the court to give the jury two forms of verdict, and instruct them to find generally for plaintiff or defendant, instead of requesting them to render a general or special finding, as provided by 2 Ballinger's Ann. Codes & St. § 5021, where no special finding was requested.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 837.]

Appeal from Superior Court, Clarke County; W. W. McCredie, Judge.

Action by James Stangair against John Roads to recover possession of a parcel of land. From a judgment for defendant, plaintiff appeals. Affirmed.

H. C. Leiser and E. M. Green, for appellant. A. L. Miller and W. W. Sparks, for respondent.

ROOT, J. In a case between these same parties, reported in 41 Wash. 583, 84 Pac. 405, the contention of respondent as to the location of a lost corner was upheld. This action is to recover possession of a small parcel of land lying within the boundaries of respondent's land as determined by that action. Appellant herein based his right to the possession of this land upon a claim of adverse possession for more than 10 years. The case was tried to a jury, which returned a verdict in favor of respondent. Upon the verdict was entered a judgment from which this appeal is taken.

The main contention of appellant is that the evidence does not sustain the verdict. We do not think this contention can be upheld. The question turned largely as to the time when a certain fence was built. Upon this there was a conflict in the evidence. We think there was a sufficient amount of evidence which, if believed, would justify the jury in the verdict which they returned, and that the trial court did not commit error in denying the motion for a new trial on this ground.

Exceptions were taken to several instructions given by the trial judge, and the giving thereof is here assigned as error. These had to do principally with the question of what constituted adverse possession, and we think they were in accord with prior decisions of this court. One of the instructions given by the trial court, the giving of which is urged to be error, is as follows: "Our Supreme Court has laid down this rule which I give you as the law in this case: If one by mistake incloses the lands of another and claims it as his own, his actual possession will work a disseisure; but if, ignorant of the boundary line, he makes a mistake in laying his fence, .making no claim. however, to the lands up to the fence, but only to the true line as it may be subsequently established, and it turns out that he has inclosed the lands of the adjoining proprietor, his possession of the land is not adverse." It is urged that this was an invasion of the province of the jury, and

a comment upon the facts of the case. WC do not so understand it. The trial court laid down the rule as it had been heretofore announced by this court. Thornely v. Andrews (Wash.) S8 Pac. 757. Taking the instruction in connection with the others given, we think it was calculated to assist the jury in determining the issue which they were to determine, and was in no manner prejudicial to the rights of appellant.

It is also contended that the court erred in giving the jury two forms of verdict, and in instructing them to find generally for plaintiff or defendant, instead of requesting them to render a general or special finding, as provided in section 5021, 2 Ballinger's Ann. Codes & St. It does not appear that appellant requested any special finding, and we fail to find any merit in this contention. The judgment of the superior court is affirmed.

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KANE et ux. v. JONES et ux. (Supreme Court of Washington. July 26, 1907.) VENDOR AND PURCHASER-CONSTRUCTION OF CONTRACT-PROVISIONS AS TO ABSTRACT and EARNEST MONEY.

A contract for the purchase of land provided that the purchasers should have 5 days to examine the abstract, the vendors to have 30 days to correct flaws therein, the earnest money to be returned if any flaws were not corrected within 30 days after notification thereof, but to be retained as liquidated damages if the purchase was not completed upon the terms stated. The abstract was duly delivered, and no objection to it was made for over three weeks, and no request was made to perfect the title, nor was time given to cure any defects after objection was made, but the purchasers demanded a return of the earnest money. Held, that the purchaser had only 5 days after delivery of the abstract to discover objections thereto, and they were not entitled to a return of the earnest money.

Appeal from Superior Court, King County; Geo. E. Morris, Judge.

Action by M. Francis Kane and another against A. A. Jones and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

James C. Moody, for appellants. Douglas, Lane & Douglas, for respondents.

HADLEY, C. J. This action was brought to recover the sum of $1,000, paid by the plaintiffs as a part of the purchase price of real estate. The agreement of purchase, as alleged in the amended complaint, was that the selling price was $15,000, to be paid as follows: Cash in hand, $250; upon the delivery to plaintiffs of an abstract of title brought down to date, $750; 30 days thereafter, $4,000; and within 6 months, $3.000-the plaintiffs also to assume the 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 24, 1906, the plaintiffs on said day paid $250, and thereafter, upon 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 and 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 option 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 discovered 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 judgment 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 days 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 $4.000 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 $4,000 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 obligation 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 correct the title. Moreover, we think the evidence was sufficient to sustain the finding that respondents were the owners in fee simple.

The appellants made default in their payments, and respondents had the clear right under the contract to declare a forfeiture of the money theretofore paid.

The judgment is affirmed.

FULLERTON, MOUNT, and CROW, JJ.,

concur.

(46 Wash. 616)

STATE ex rel. ROYSE v. SUPERIOR COURT OF KITSAP COUNTY. (Supreme Court of Washington. July 22, 1907.)

1. CERTIORARI-INADEQUACY OF OTHER REMEDY.

In an action to determine the right to an office, where an appeal could probably not be determined before the time for which the office is claimed would expire, a writ of review will be granted.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Certiorari, § 6.]

2. OFFICERS-VACANCY-NECESSITY CEPTANCE OF RESIGNATION.

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Where an officer resigns his office, no vacancy exists until the resignation is accepted formally, or by the appointment of a successor, and one who is elected to fill the vacancy before the resignation is accepted cannot claim the office.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Officers, § 80.]

Writ of review by the state of Washington, on the relation of Arthur Royse, to the superior court of Kitsap county, to review an order sustaining a demurrer to the complaint in an action by relator against Robert Stewart. Judgment affirmed.

J. W. Bryan, for relator. Thomas Stevenson, for respondent.

HADLEY, C. J. This cause is before this court on writ of review. The relator here was the plaintiff in the court below. The cause was determined by sustaining a demurrer to the complaint and by the dismissal of the action, the plaintiff declining to plead further. The complaint in effect alleges that the city of Bremerton is a city of the third class, and that on December 5, 1905, one Gruwell was elected as councilman for the Third Ward of said city, to serve a term of two years from and after the first Monday in January, 1906; that thereafter, on November 2, 1906, said Gruwell resigned as councilman, the resignation being in writing; that the resignation was read in open council on November 5, 1906, at the first regular meeting after the date of the resignation, and that said Gruwell has never since said November 2, 1906, exercised or attempted to exercise any of the duties of said,office; that at a regular annual election held in said city on December 4, 1906, the plaintiff was elected as councilman to fill the unexpired term of said Gruwell resigned; that thereafter, on March 22, 1907, the said city council, acting as a board of canvassers, under and in obedience to a writ

of mandate issued out of the superior court, canvassed the returns of said election, and issued to the plaintiff a certificate of election; that thereafter, on March 25, 1907, the plaintiff filed his oath of office with the city council, and demanded recognition in his said official capacity, whereupon he found his seat occupied by Robert Stewart, the defendant, said Stewart claiming to hold by virtue of his appointment by said city council to said office on December 10, 1906, six days after the election of the plaintiff to the office; that said Stewart is a usurper of the office; and that he wrongfully withholds the same from the plaintiff. Judgment is prayed that the defendant Stewart be ousted from the office. and that the plaintiff be put in possession of the same. The defendant's demurrer to the foregoing allegations having been sustained, and judgment of dismissal entered, the plaintiff applied to this court for a writ of review, which was granted.

The relator had the right of appeal from the judgment, but it was believed that such remedy would be inadequate, as the appeal could probably not have been determined before the time for which the relator claims the office in question expires, thus rendering the appeal fruitless. For said reason the writ of review was granted in pursuance of the rule heretofore followed in similar cases. State ex rel. Meredith v. Tallman, 24 Wash. 426, 64 Pac. 759; State ex rel. Smith v. Superior Court, 26 Wash. 278, 66 Pac. 385. The question involved in the ruling upon the demurrer to the complaint is, was there a vacancy in the office of councilman of the Third Ward of Bremerton at the time the relator claims to have been elected thereto? If Gruwell's resignation was not complete at the time of the election, there was no vacancy, and the effort to elect the relator was fruitless without a vacancy to fill. It will be observed that the complaint does not allege that the resignation had been accepted by the council prior to the election, either by the appointment of a successor or by any other action taken. complaint merely shows that the communication tendering the resignation was read before the council. It is the contention of the relator that no acceptance of the proposed resignation was necessary, and that the office became vacant upon the mere presentation of the tendered resignation to the council. Upon the other hand, the respondent contends that an acceptance was necessary, and that in its absence there was no vacancy. The authorities cited in the respective briefs are in conflict. We have also made further investigation with the same result. The relator cites United States v. John C. Wright, 1 McLean (U. S.) 509, Fed. Cas. No. 16,775. In the opinion in that case the following expression is found: "There can be no doubt that a civil officer has a right to resign his office at pleasure, and it is not in the power of the executive to compel him to remain in office. It is only necessary that the resignation

The

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-writer'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 September 8th, when the Governor accepted the resignation and appointed the suc

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 com

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