scent of real estate and the distribution of personal property. This act for the first time provided for inheritance of realty by the husband and wife the one from the other, making no mention of the estates of dower or tenancy by the curtesy. This legislation discloses an evident intention to harmonize the statute relating to wills and the law of descents with existing property rights under the separate and community property act then in force. Later amendments to the law of descents and the law of separate and community property, perfecting such harmony, have resulted in our present statutes on these subjects. The entire trend of legislation since 1869 has been a departure from common-law rules, with the evident intention of placing the husband and wife as nearly as possible upon an equality the one with the other, not only in their property rights, but also in their testamentary capacity and their rights of inheritance; the only exception as to their property rights now being that the husband has the management and control of all of community property and the right to alienate community personalty. This exception, however, is necessary to enable him, as head of the family, to engage in business and trade for the benefit of the community of which he is a member. Although these various laws have been at times crude, incomplete and somewhat inconsistent, the ultimate purpose of the successive Legislatures has been to secure harmony and equality. While applying proper methods of interpretation, our laws should be construed, if possible, to promote this harmony. The construction of sections 4598 and 4615, Ballinger's Ann. Codes & St., urged by appellant, accomplishes this result without violence to any correct method of interpretation, while the construction asked by respondent would have the opposite effect. Many unfortunate conditions might result, were the contention of the respondent sustained. For instance, an unmarried woman could by will devise her entire estate. might then marry, and, although she and her husband might thereafter accumulate a large community estate, her previous will, if not revoked, would, in the event of her death without issue, pass one-half of such community estate to her legatees. On the other hand, a husband's will being revoked by subsequent marriage, the entire community estate, in the event of his death without issue, would pass to his widow. Again, if a single woman devised her separate estate, and afterwards married, her will not being thereby revoked, her entire separate estate would, in the event of her death, pass to her legatees, while in the case of her husband, his will being revoked by subsequent marriage, one-half, or at least one-third, of his separate estate would, in the event of his death, descend to his widow by inheritance. These illustrations and others that might be suggested show that the construction for which the respondent contends does not pre

serve that harmony and equality in our laws pertaining to wills, property rights, and descent intended by our Legislatures.

Testamentary incapacity in a married woman being the basis of the common-law rule revoking her will executed while a feme sole, various courts hold that when such testamentary incapacity has been removed by statute the reason of the rule ceases, and that the rule itself therefore ceases to exist. Kelly v. Stevenson, 85 Minn. 247, SS N. W. 739, 56 L. R. A. 754, 89 Am. St. Rep. 545; Emery, Appellant, 81 Me. 275, 17 Atl. 68; Will of Ward, 70 Wis. 251, 35 N. W. 731, 5 Am. St. Rep. 174; Roane v. Hollingshead, 76 Md. 369, 25 Atl. 307, 17 L. R. A. 592, 35 Am. St. Rep. 438; Morton v. Onion, 45 Vt. 145; Fellows v. Allen, 60 N. H. 439, 49 Am. Rep. 328; In re Tuller, 79 Ill. 99, 22 Am. Rep. 164. The respondent has cited some of the cases mentioned above, and urges their application here. We do not regard them as pertinent under our present statutes, which make the husband and wife heirs one to the other. In re Tuller's Will, 79 Ill. 99, 22 Am. Rep. 164, is one of the cases cited by respondent; but the Supreme Court of Illinois, in Tyler v. Tyler, 19 Ill. 151, 155. says: "We hold that marriage, under our statute making the wife heir to the husband and the husband heir to the wife, where there is no child or descendant of a child, is, in the absence of facts showing an intention to die testate arising subsequent to the marriage, a revocation of a will of the husband, made prior to the marriage, disposing of his entire estate without making provision in contemplation of the relations arising out of it." The doctrine of this case is not only recognized in the Tuller Will Case, supra, but it has been frequently followed by the Illinois court, although at common law subsequent marriage and birth of a child, taken together, were required to revoke the will of an unmarried man. American Board of Foreign Missions v. Nelson, 72 Ill. 564; Duryea v. Duryea, 85 Ill. 41; McAnnulty v. MeAnnulty, 120 Ill. 26, 11 N. E. 397, 60 Am. Rep. 552; Hudnall v. Ham, 172 Ill. 76, 49 N. E. 985. In harmony with these Illinois cases is In re Teopfer, 67 L. R. A. 315, 12 N. M. 372, 78 Pac. 53, in which the Supreme Court of New Mexico, under a statute making the husband and wife heirs to each other, applied the same rule to a will executed by a single woman who afterwards married and died without issue. See, also, Durfee v. Risch, 5 L. R. A. (N. S.) 1084, 142 Mich. 504, 105 N. W. 1114; Brown v. Scherrer, 38 Pac. 427, 5 Colo. App. 255; Scherrer v. Brown, 42 Pac. 668, 21 Colo. 481. Our construction of sections 4598 and 4615, Ballinger's Ann. Codes & St., we regard as being in complete harmony with former decisions of this court on kindred questions. In re Murphy's Estate, 30 Wash. 10, 70 Pac. 109; In re Fease's Estate, 30 Wash. 51, 70 Pac. 270. See, also, Durfee v. Risch, supra; Ellis v. Darden, 11 L.

R. A. 51, 86 Ga. 198, 12 S. E. 356; Owens v. Haines, 48 Atl. 859, 199 Pa. 137; Smith v. Allen, 31 Ark. 268.

Respondent contends that the word "necessary," found in section 4615, Ballinger's Ann. Codes & St., forbids the construction adopted by us, as no necessity for any such interpretation exists. There has been considerable discussion in the briefs of the correct definition of the word "necessary," as here used. Such discussion is immaterial, as a necessity for our interpretation does exist, to enforce evident legislative intent and to preserve the harmony of our laws pertaining to wills, property rights, and descents.

The honorable trial court erred in admitting the alleged will to probate and in appointing T. H. Kolderup administrator cum testamento annexo. The judgment is reversed, and the cause remanded, with instructions to enter an order refusing to probate the will, and also an order appointing the appellant administrator of the estate of his deceased

wife.

HADLEY, C. J., and FULLERTON, RUDKIN. and DUNBAR, JJ., concur.

(47 Wash. 166)

STATE ex rel. SKAMANIA BOOM CO. v. SUPERIOR COURT FOR SKAMANIA COUNTY et al.

(Supreme Court of Washington. Sept. 13, 1907.)

1. EMINENT DOMAIN-NECESSITY-EVIDENCE. Evidence in proceedings by a railroad to condemn a right of way across land of a boom company held sufficient to sustain a finding of reasonable necessity therefor, authorizing condemnation for one public service of land devoted to another public service.

2. SAME.

On the question of reasonable necessity for condemning a right of way for a railroad across the property of another public service corporation, the comparative expense of constructing and maintaining the road there and elsewhere may be considered, with the other circumstances. 3. SAME-PRIOR ATTEMPT TO AGREE ON COM

PENSATION-NECESSITY.

Ballinger's Ann. Codes & St. § 4335, contemplating that, when a railroad company seeks to condemn a way for a crossing over the tracks of another railroad company, an effort to agree on the compensation shall first be made, does not apply in the case of a railroad seeking to condemn a right of way over the property of a boom company, another public service company. 4. SAME.

Even if Ballinger's Ann. Codes & St. § 4335, providing for prior effort to agree on compensation where a railroad company seeks to condemn a way over the tracks of another railroad company, applies in case of a railroad seeking to condemn a right of way over the lands of a boom company, another public service corporation, the effort need not be made where it will be fruitless, because the boom company wholly denies the right or power to condemn.

Writ of review, on the relation of the Skamania Boom Company, against the superior court for Skamania county and the judge and clerk thereof, to review condemnation proceedings. Judgment affirmed.

George S. Shepherd and Helmus W. Thompson, for relator. James B. Kerr, A. L. Miller, and L. C. Gilman, for respondents.

HADLEY, C. J. A writ of review was issued by this court for the purpose of reviewing the action of the superior court of Skamania county in certain condemnation proceedings. The action in the trial court was initiated by the petition of the Portland & Seattle Railway Company against the Skamania Boom Company and others. The said petitioner and also said boom company are corporations organized under the laws of this state, the former for railway purposes and the latter for booming purposes. The petitioner has surveyed and located a line of railroad and is now engaged in the construction thereof down the north bank of the Columbia river from a point at or near Kennewick, Wash., to Vancouver, Wash., and thence across said river to Portland, Or.. which railroad it proposes to build and operate as a common carrier of freight and passengers. It claims that for the purposes of the construction and operation of said railroad it is necessary to condemn and appropriate for its use as a right of way a certain strip of land 200 feet in width, being 100 feet on each side of the center line of the railroad as now located across a tract of land owned by the said boom company. A preliminary hearing was had, and the court found that it is necessary for the petitioner to condemn and appropriate said strip of land for its use as a right of way, that the contemplated use is a public use, and that the public interest requires the appropriation of the land for said railway purposes. It was ordered that a jury should be impaneled for the purpose of ascertaining the damages resulting from such appropriation. The boom company thereupon filed its petition here as relator, and asked the writ of review. Meanwhile the trial of the question of damages has been suspended.

The situation is substantially as follows: The relator owns a tract of land containing about 38 acres, lying upon the east bank of Wind river and a short distance to the north of the confluence of said stream with the Columbia river. The relator's plat or surrey as a boom company, filed in the office of the Secretary of State of the state of Washington, and which shows so much of the shore line of the waters of Wind river and lands contiguous thereto as are proposed to be appropriated by said boom company as necessary for its purposes, embraces the said tract. The location of the railway line is about the center of this tract, considered from the north to the south, and crosses the tract in an easterly and westerly direction, leaving practically equal parts of the tract to the north and south of the right of way strip sought to be appropriated. The relator claims that it needs this entire tract as a holding ground for logs in times of high

water, that when the waters of the Columbia are high the logs cannot be handled at the mouth of Wind river, and that the waters are forced up Wind river, which overflows the tract in question, forming a holding ground for the logs. The testimony shows that during a period of eight successive years the relator has actually used the ground twice in connection with with handling logs. Each time the period of such use covered a few weeks by reason of the fact that the land was covered by water. So far as the evidence shows the land at all other times during the eight years has either been entirely uncovered by water or has not been under sufficient water to be used for logging purposes. It further appears that at the two times named the use that was made of the ground was for brailing or sorting logs. Under such circumstances the relator claims that the tract in question has been devoted to a public use; that the relator is a public service corporation, having previously devoted the land to a public purpose: and that the railway company cannot condemn it for another public purpose.

Assuming, without deciding, that the facts in evidence are sufficient to show that the tract had been actually appropriated by the boom company for a public use, still the strip sought to be taken by the railway company constitutes but a small part of the entire tract said to be devoted to the public purpose. The case is therefore not that of one public service corporation seeking to deprive another such corporation of its entire means of operation at a given location. Both to the north and south of the strip sought to be condemned is room remaining. In whatever manner the railway may be built across the tract, whether upon unfilled trestle work or with a filled embankment, the bed of Wind river must in any event remain open and unobstructed, through which the back water may flow, and then overflow the tract upon both sides of the railroad. Within the principles discussed in Samish River Boom Company v. Union Boom Company. 32 Wash. 586, 73 Pac. 670, the power exists for one public service corporation to condemn property held by another. Such power may not be exercised arbitrarily or indiscriminately. so as merely to take property away from one corporation and give it to another. It cannot be taken to be used for the same purpose, in the same manner; but, where there is a necessity for devoting it to some other public service, it may be condemned. As to the degree of necessity which must exist, there is difference of opinion. Some courts have held that the necessity must be an absolute one, but the weight of opinion is that it must be a reasonable necessity. Lewis on Eminent Domain (2d Ed.) § 276. The same section says: "But we should say that there was a reasonable necessity for the taking where the public interests would be better subserved thereby, or where the advantages

to the condemnor will largely exceed the disadvantages to the condemnee." To the same effect the relations of a condemning corporation to the property of another arising from reasonable public necessity, were discussed by this court in State ex rel. Portland & Seattle Railway Company v. Superior Court, 88 Pac. 201.

It being established that the power to condemn exists in favor of the railway company as against the relator if a necessity exists, we must next inquire if a reasonable necessity does exist. The trial court found that it does, and we think the evidence sustains the finding. The relator contends that a line which it proposes to the south of its tract of land would be a practicable route, and that by its adoption the appropriation of any portion of relator's tract would be avoided. The evidence does not show that it would be impossible to construct and maintain upon the proposed line, but it does show that the water line of the Columbia river extends a long distance beyond the proposed location, and from a profile sown on the map filed it appears that the track would have to be supported by a high fill or trestle. It is the relator's own contention that the current of the river at this point is such that in times of high water it cannot handle its logs there, and hence it claims the necessity for the ground sought to be condemned, in order that it may hold its logs upon it at such times. The relator's own argument shows that its proposed route for the railway would require the construction and maintenance of the line within this same current, making it necessary to operate freight and passenger trains upon some kind of structure that must resist the force of the current. The safety of the lives of passengers and the careful transportation of freight constitute great public necessity, and the public cannot reasonably be subjected to the hazards attending the proposed location, when they may be avoided by the use of a strip of relator's land. It also appears that the construction and maintenance upon the proposed route would be very expensive. this may not of itself be a sufficient reason for taking relator's property, unless it amounts to a practical prohibition, yet, when it is considered in connection with the other elements mentioned, the comparative expense is not an improper matter for consideration in determining as a whole the reasonableness of the appropriation. All the circumstances, taken together, tested by the standards above mentioned, show a reasonable necessity for the appropriation.

It is also urged that the court erred in giving judgment for condemnation, for the reason that it was not shown that any effort was made to agree with the relator upon the amount of compensation prior to instituting the condemnation proceeding. By reference to section 4334, 1 Ballinger's Ann. Codes & St., it will be seen that the extent of the

that the remedy by appeal may subject him to inconvenience and expense does not destroy its effectiveness to ultimately reach any unauthorized action the trial court may take.

The writ of prohibition is denied.

RUDKIN, CROW, and MOUNT, JJ., con

cur.

(47 Wash. 156)

STATE ex rel. MARTIN v. HINKLE, Police Justice.

(Supreme Court of Washington. Sept. 11, 1907.) PROHIBITION-EXISTENCE OF OTHER REMEDY.

Prohibition will not lie to restrain a court from proceeding with a trial for violation of a city ordinance; the only question being whether the city, in the absence of special authority. had power to make an act an offense when it was such under a statute of the state, and there being an adequate remedy in the ordinary course of law, either by appeal from an adverse judgment or by habeas corpus.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 40, Prohibition, §§ 4, 5.]

Appeal from Superior Court, Spokane County: Henry L. Keunan. Judge.

Prohibition, on the relation of Fred Martin. against J. D. Hinkle, police justice of the city of Spokane. Writ denied, and relator appeals. Affirmed.

Happy & Hindman and Sullivan, Nuzum & Nuzum, for appellant. J. M. Geraghty, Lester P. Edge, and J. D. Campbell, for respondent.

PER CURIAM. The appellant was complained against in the police court of the

city of Spokane for keeping his place of business open on Sunday in violation of a city ordinance. Upon being arrested and brought before the police justice for trial, he applied to the superior court of Spokane county for a writ of prohibition to restrain the police justice from further proceeding with the trial of the cause. From an order denying the writ, the present appeal is prosecuted.

The only question presented by the appeal is thus stated in the appellant's brief: "Had the municipal corporation of Spokane authority and power to pass an ordinance which denounces an act to be an offense or crime, when the same act is also made an offense under the general statutes of the state, in the absence of a statute granting to the municipality the specific power to do so?" Manifestly questions of this kind cannot be determined on an application for a writ of prohibition. Such writs will only issue to arrest the proceedings of a tribunal, corporation, board, or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person, and where there is no plain, speedy, and adequate remedy in the ordinary course of law. Ballinger's Ann. Codes & St. $$ 5769, 5770; State ex rel. Miller v. Superior Court, 40 Wash. 555, 82 Pac. 877, 2 L. R. A. (N. S.) 395, 111 Am. St. Rep. 925, and cases cited. In this case the appellant had an adequate remedy in the ordinary course of law, either by appeal from an adverse judgment or by application for a writ of habeas corpus.

The application for the writ was properly denied, and the judgment is therefore affirmed.