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(47 Wash. 256)

son, and the appellant was not competent CHLOPECK v. CHLOPECK et al.

to testify in her own behalf to any trans(Supreme Court of Washington. Oct. 8. 1907.) i action had with such insane persou under 1. APPEAL - HARMLESS ERROR — REFUSAL OF

section 5991, Ballinger's Ann, Codes & St. LEAVE TO AMEND,

This objection was properly sustained. The In an action for an accounting between al

partnership relation could only be created leged partners, error in refusing leave to amend

through some contract or transaction with the prayer of the complaint by asking for the dissolution of the partnership was harmless,

the respondent Edward Chlopeck, and, he bewhere the court was justified in finding there ing insane, testimony in relation to such conwas no partnership.

tract or transaction by the appellant in her (Ed. Note.-For cases in point, see Cent. Dig.

own behalf was properly excluded. Objecvol. 3, Appeal and Error, $ 4107.)

tions were also sustained to the following 2. WITNESSES—Persons INTERESTED AGAINST questions propounded to the same witness: INSANE PERSOX.

Under Ballinger's Ann. Codes & St. $ 3991, "Q. What wages did you draw for such disqualifying persons in interest from testifying services? [Referring to services performed concerning transactions with insane persons, in

by the witness in superintending the smoking an action for an accounting between alleged partners, it was proper to exclude a question asked of fish.] Q. Did any of the employés of plaintiff as to who composed the partnership ; | Chlopeck Bros. down there board with you? the defendant alleged to be a partner being in

Q. Did you have any knowledge of money due sane. 3. APPEAL - INSUFFICIENT PRESENTATION OF

her from Chlopeck Bros. ? Q. Then, after ERROR.

that, Mrs. Chlopeck, when you wanted money The Supreme Court will not review a rul to pay any expenses, where did you get it?" ing in excluding testimony, unless the party of The materiality of the testimony sought to fering it informed the court what he expected to prove, and made the offer a part of the rec

be elicited by these questions does not appear ord, so that the court might judge of its ma from the questions themselves, and in Yorteriality.

man v. Hopper, 38 Wash. 413, S0 Pac. 551, [Ed. Note.-For cases in point, see Cent. Dig.

we held that in such cases we will not revol. 3, Appeal and Error, $3 2903-2909.]

view the action of the trial court in exclud4. SANE - CASE TRIED TO COURT — IMPROPER TESTIMONY ADMITTED-EFFECT.

ing testimony, unless the party offering it The admission of improper testimony is not

informed the court what he expected to prove cause for reversing an equity case or any case and made the offer a part of the record so tried to the court.

that the court might judge of its materiality. 5. PARTNERSHIP - EXISTENCE OF RELATION – EVIDENCE-SUFFICIEXCY.

For these reasons, we cannot review the rulIn an action between alleged partners for ings of the court in the matters complainan accounting, evidence held to show no part ed of. nership existed.

The next assignment relates to the admisAppeal from Superior Court, King County; sion of testimony over the objection of the Arthur E. Griffin, Judge.

appellant. The statements objected to were Action by Francis Chlopeck against Ed clearly hearsay and self-serving, but we have ward Chlopeck and others. From a judgment repeatedly held that the admission of imof dismissal, plaintiff appeals. Affirmed.

proper testimony does not call for a reversal Charles R. Crouch, Wm. H. Brinker, and in an equity rise, or in any case tried to the Morris, Southard & Shipley, for appellant.

This court will simply disregard it. Ira Bronson, D. B. Trefethen, and Ira A. The only remaining question is the sufCampbell, for respondents.

ficiency of the testimony to justify the court's

finding. Briefly stated the material facts are RUDKIN, J. This is an action for an ac- these: The appellant and the respondent counting between partners. The court below , Edward Chlopeck, mother and son, resided found, among other things, that there was together in Portland, Or., in the year 1881. no partnership, and entered a judgment of In the fall of that year a fish and poultry dismissal, from which the plaintiff has ap business was purchased from one Wolfstein, pealed.

and the business was thereafter conducted At the commencement of the trial the ap until 1990) under the name of Chlopeck Bros. pellant asked leave to amend the prayer of In 1890 the mother and son removed to Seather complaint by adding thereto a prayer tle, where the same business was thereafter for the dissolution of the copartnership. The conducted under the same name until 1900. court denied the application, and this ruling | In the latter year the business was transferis assigned as error. If the court was justi

If the court was justi- red to the Chlopeck Fish Company, a corporalfied in its finding of no partnership, the ruling tion, the son making the transfer, and, as a complained of could not be prejudicial, even consideration therefor, 118 shares of the capthough erroneous. The appellant, while on ital stock of the corporation of the par value the witness stand in her own behalf, was ask of $100 each were issued to him. In 1902 the ed the following question: "Q. Who com son and the respondent, Jennie Chlopeck, inposed the firm of Chlopeck Bros?" To this termarried, and the son thereupon removed question the respondents objected, on the from the home of the appellant, where he ground that the respondent Turner was cle haul theretofore at all times resided. In fending as the guardian of au insane per- | 1903 the son was adjudged jusane by the su

perior court of King county, and cominitted Appeal from Superior Court, Columbia
to the asylum for the insane, where he still County; Chester F. Miller, Judge.
remains, and thereafter respondent Turner In the matter of the estate of William A.
was appointed guardian of his estate. The Miller, decreased. From an order, an appeal
present action was commenced on May 15, is taken. Affirmed.
1906, some three years after the son was

Will H. Fouts and G. W. Jewett, for ap-
adjudged insane. Although this copartner pellant. J. J. Godman, for respondents.
ship existed for a period of about 20 years be-
fore the son became insane, if it existed at RUDKIX, J. This is an appeal from an
all, yet there is not a particle of direct testi order establishing a nuncupative will and
mony tending to show the formation or exist-

admitting the same to probate. Upon the ence of such a partnership. There is testi hearing of the petition for probate, the court mony tending to show that the mother ad found "that the instrument filed herein and vanced money for the original purchase of the alleged to be the will of said Miller is not business; that she took a general interest in the entire or all the will made by him as the conduct of the business and superin shown from the evidence taken herein," and tended the smoking of fish; that she received granted "leave to reduce or have reduced to no salary or wages for her services; that writing and file herein the nuncupative will she drew considerable sums from the busi of said William A. Miller, as shown from the ness for household expenses, and was au evidence to have been made by him, and upon thorized so to do; and that after the forma the filing of the same such proceedings be tion of the corporation such sumns were charg had as the law may warrant in the premises." ed to the personal account of the son. But Thereafter the will, was shown from the eviall these facts are just as consistent with dence to have been made,” was reduced to the relation of mother and son as with that writing and filed with the clerk, whereupon of copartnership, or even more so. The gen the court entered an order establishing the eral statements of witnesses to the effect that will and admitting the same to probate. the appellant had an interest in the business,

The appellant seems to contend that, as or at least appeared to have, are entitled to soon as it appeared that the entire will of but little weight, in view of all the circum the testator was not in form and substance stances and the admitted relationship of the

as reduced to writing and set forth in the parties. Had this partnership existed for a petition for probate, the court had no alterperiod of 20 years, we cannot escape the con

native but to dismiss the petition. This conclusion that some more definite trace of its

tention is unsound. In the exercise of a existence could be found than is disclosed by

sound discretion, the court might well perthis record.

mit the alleged will and its records to be The findings of the court below are in

amended to conform to the facts proved, and accordance with out own views of the testi

such discretion was properly exercised in mony, and the judgment is therefore affirmed.

this case. Again, it is contended that the eridence failed to show either the animus

testandi or the animus nuncupandi, or that HADLEY, C. J., and FULLERTON, CROW, the testator called upon any person present DUNBAR, and ROOT, JJ., concur.

to bear witness that such was his will. Without discussing the testimony in detail,

we think it clearly appears that the testatur (47 Wash. 253)

was strongly impressed with the probability In re MILLER'S ESTATE,

of impending death; that he intended to make (Supreme Court of Washington. Oct. 8, 1907.) a will, and that his word should stand as 1. WILLS-PROBATE-AMENDMENT.

his will; and that he called upon those The court need not dismiss a petition for present to bear witness that such was his probate of a will on its appearing that the en will, or to that effect, as our statute protire will of testator is not in form and substance

vides.
as reduced to writing and set forth in the peti-
tion, but in its sound discretion may allow the

It is next contended that the will was not will and its records to be amended to conform to made "at the time of the last sickness" of the facts proved.

the testator. Ballinger's Ann. Codes & St. 2. SAME - NOSCUPATIVE WILL "TIME OF $ 465. This presents the most serious ques. LAST SICKNESS."

tion in the case. In the leading American A nuncupative will is made "at the time of the last sickness," as required by Ballinger's

case construing the term "last sickness," Ann. Codles & St. $ 160., though not made when in statutes of wills, the opinion. was written testator is in extremis, or overtaken by sudden

by Chancellor Kent. Prince v. Hazelton, 20) ani violent sickness, and has not time or opportunity to make a written will, where made

Johns. (X. Y.) 502, 11 Am. Dec. 307. It was when the last sickness has so progressed that there held by a divided court that the term testator expects (leath, and is liable to die at last sickness" means where the testator is any time, and in view of, and as preparatory to, in extremis, or overtaken by sudden and viosuch result, which followed, he made the verbal will, and this without regard to his opportunity

lent sickness, and has not time or opportunithen or afterwards to make a written will. ty to make a written will. This construc

[Ed. Wote.-For cases in point, see Cent. Dig. tion of the statute has been adopted and folvol. 49, Wills, $ 332.]

lowed in Georgia, Maryland, Mississippi,

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Yew Jersey, New York, Pennsylvania, Texas, utes themselves. We think the construction anil Virginia. 30 Amer. & Eng. Ency. of given in the later cases is more in harmony Law (2d Ed.) p. 568. A different rule pre with the language and purpose of the statvails in Alabama, Illinois, Kansas, Yebraska, ute, and the requirement that such wills and Tennessee. In Johnson v. Glasscock, 2 must be strictly proved is a sufficient guarAla. 218, the court said: “If a person in anty against fraud, at least until the Legishis last illness—the sickness of which he:ature otherwise provides. subsequently dies-impressed with the prob It is lastly contended that the testator ability of approaching death, deliberately lacked testamentary capacity, and was unmakes his will conforming to the statute, duly influenced in the making of the will. we do not feel authorized to say that it will These charges find no support in the evibe invalid because in point of fact he had dence. time and opportunity to reduce it to writ We find no error in the record; and the ing." In Harrington v. Stees. 82 Ill. 50, judgment is affirined. 25 Am. Rep. 290, the court said: “At common law it was not essential to the validity ILADLEY, C. J., and FULLERTOX, CROW, of a nuncupative will that the testator should DUSBAR, and ROOT, JJ., concur. have been ill at all. The statute is, in this regard, a limitation of the common-law powers. The words in the time of the last sick

(47 Wash. 310) ness' had no technical signification at the STATE ex rel. LIBERTY LAKE IRR. CO. time of the passage of the statute. These et al. v. SUPERIOR COURT FOR words must be taken in their ordinary sig.

SPOKANE COUNTY. nification. The courts have no power to

(Supreme Court of Washington. Oct. 10, 1907.) take from or to add to the statute. It is

1. EMINENT DOMAIN - WATER RIGHTS - Con. their duty to carry out the will of the Legis.

DEMXATION PROCEEDIXGS-PETITION. lature as found in the words of the statute, Where a petition for the condemnation of and the necessary and reasonable implica- water rights disclosed that petitioner's purpose tions arising from these words. The stat

was to make a perpetual use of the water sought

to be appropriated, the petition was not fatally ute requires it to be proven that the will defective for failure to allege in terms the exwas made in the last sickness.' It is a rea tent of the time that the water was intended to sonable and necessary implication that it

be used, as provided by Ballinger's Ann. Codes

& St. $ 4143. inust also appear that the testator, at the

2. SAME-NECESSITY OF CONDEMNATION. time of making the will, supposed that his

Where an irrigation company sought to conthen sickness would prove his last sickness. demn a way for a ditch and the riparian or In other words, that he should be impressed

littoral rights of relators to the waters of a with the probability that he would never re

nonnavigable arm of a lake, it was no defense cover." To the same effect, see Yolan V.

that the water company appropriated and was

capable of using a large supply of water through Gardner, 7 Heisk. (Tenn.) 215. In Baird y. another source. Baird, 70 Kan. 564, 79 Pac. 163, 68 L. R. A. 3. WATERS AND WATER COURSES-STATE STAT627, after referring to the two extreme views

UTES-CONFLICT WITH FEDERAL STATUTE.

Ballinger's Ann. Codes & St. $4150, prothat might be adopted, the court said: “We

viding that a portion of the water of noncannot believe that either of these extreme navigable streams and bodies of water shall be claims are founded in reason, but rather reserved to that part of the public using or needprefer to hold that the proper interpretation

ing the water on abutting property, was not in.

consistent with Act Cong. March 3, 1877, c. of the statute is that, where the last sick

107, 19 Stat. 377 (1 Rev. St. Supp. U. S. 137 ness' of one has progressed to such a point [U. S. Comp. St. 1901, p. 1518]), reserving such that the deceased expects death at any time water to the appropriation and use of the and is liable to die at any time, and in view

public.

4. EMINENT DOMAIN – PROPERTY SUBJECT — of its occurrence, and as preparatory thereto,

IRRIGATION APPROPRIATION OF WATER. a verbal will is made, and he does thereafter Ballinger's Ann. Codes & St. § 41.36. dedie of such disease, such will is valid, and clares that the right given to condemn the use is 'made in the last sickness'; that neither

of water shall not extend further than to the

riparian rights of persons to the natural flow of prior preparation to make such verbal will,

water through lands on or abutting on streams nor opportunity to make a written will at or lakes as the same exists at common law, and the time or thereafter, would necessarily be

is not intended to allow the taking of water determinative against the validity of the

from any person that is used by the person him

self for irrigation or that is needed for that nuncupation." This rule is approved and

purpose. Held, that the word "needed” as so followed in Godfrey v. Smith (Xeb.) 103 V. used meant water necessary to irrigate the W. 450. The proof clearly shows that the

land of a littoral or riparian owner which he

has under irrigation at the time his rights are will in question was made "at the time of

sought to be condemned, or which he intends the last sickness," as that term is construed to and will place under irrigation within a in these decisions, and we feel constrained reasonable time, and that, as to such water, no to follow them. Nuncupative wills are not

condemnation could be had. favored in law, but it seems to us that the Writ of review by the state, on relation of earlier cases not only place a strict construc the Liberty Lake Irrigation Company and tion upon statutes authorizing them, but go another, against superior court of Spokane further, and add very materially to the stat. county. Order reversed. Case rewanded.

Gallagher & Thayer, for relators. Happy & Ilindman and Allen & Allen, for respondent.

ROOT, J. This is a proceeding to review an order of condemnation made in the case of Spokane Valley Land & Water Company y. Liberty Lake Irrigation Company and Arthur D. Jones & Co. The order was for the condemination of a way for a ditch and the riparian or littoral rights of relators to the waters of a nonnavigable arm of Liberty Lake. In the years 1904-05 the water company built a dan across an arm of the lake, which prevented the water thereof from reaching reiators' premises. An action was brought to enjoin the company, and the court granted an injunction against further interference with the water until the water company should condemn the use of the water in the arm of the lake. Thereupon the present proceeding was had, and, from the order of condemnation made, this appeal is prosecuted.

The relators contend (1) "that the courts have never been granted power to condemn water which is 'needed' by the owner for irrigation purposes (Ballinger's Ann. Codes & St. § 4156); (2) the water company does not need this water because it owns an ample supply in the Spokane river; (3) no proof was made as to the extent of time the water sought to be condemned is intended to be used." We will notice these contentions in the inverse order.

Section 4143, Ballinger's Ann. Codes & St., provides that the petition for condemnation shall set forth the extent of time that said water is intended to be used. We think that ordinarily the petition should set forth a statement to this effect. but do not believe that the omission so to do is fatal to a judg. ment or decree in the proceeding, where the other facts set forth in the petition are such as to show. as they do in this case, that the purpose was doubtless to make a perpetual use of the water so condemned and appropriated.

As to the second contention, it appears from the record that the water company had appropriated, and was capable of using, a large supply of water from the Spokane river. We do not think, however, that this fact in itself is sufficient to defeat the order of condemnation made herein.

As to the first contention, the parties hereto are at variance touching the meaning of the word "needed," as used in section 4156, Ballinger's Ann. Codes & St., which is as follow's: "The right herein given to condemn the use of water shall not extend any further than to the riparian rights of persons to the natural flow of water through lands upon or abutting said streams or lakes, as the exists at common law, and is not intended in any manner to allow water to be taken from any person that is used by said person himself for irrigation, or that is needed for that purpese by any such person." Relator's contend

that the statute authorizes and requires an exception from the condemnation order of all the water that is used by such owner or that may be hereafter needed to irrigate the lands abutting upon said stream or lake. The trial court, however, held that the meaning of the statute was that the riparian owner could reserve so much of the water as was "used and needed." It was contended by respondent that, under Act Cong. March 3, 1877, c. 107, 19 Stat. 377 (1 Rev. St. Supp. U. S. 137 [U. S. Comp. St. 1901, p. 1548]), relators had no riparian or littoral rights, inasmuch as their land was not patented by the government until after the date of the passage of this act. Assuming, but not deciding, that this is correct, we think the effect of section 4156, Ballinger's Ann. Codes & St., justifies relators in objecting to the condemnation by the water company of so much of the water as is used or needed for irrigation by them upon their abutting lands. If, under this act of Congress, the owner of land abutting upon a nonnavigable stream or body of water has no littoral or riparian rights therein, nevertheless it would seem that, after the issue of patent for such land by the United States, the duty would devolve upon the state to provide how "the appropriation and use of the public,” mentioned in the statute, should be exercised. By section 4156, Ballinger's Ann. Codes & St., it is provided that a portion of this water shall be reserved to that part of the public using or needing the water upon abutting property. We perceive nothing in this requirement of the statute inconsistent with the act of Congress. In the recent case of State ex rel. Kettle Falls, etc., Co. v. Superior Court (Wash.) 90 Pac. 630, this court said: “Under section 4156, Ballinger's Ann. Codes & St., the ordinary abutting owner must submit to the condemnation of his riparian rights to the natural flow of the water as at common law, with the limitation. however, that water that is used by said person himself for irrigation, or that is needed for that purpose by any such person may not be condemned." See, also, Nesalhous v. Walker (Wash.) 88 Pac. 1032.

The question, then, turns upon the meaning and intention of the Legislature by the expression "needed,” as employed in section 4156, Ballinger's Ann. Codes & St. We think it means the water necessary to irrigate the land of the littoral or riparian owner which he now has under irrigation, and also that which he intends to, and will, place under irrigation within a reasonable time. It cannot be supposed that the Legislature intended that a riparian owner could prevent an irrigating company from appropriating water not then in use, but which the riparian owner might need and use upon his land at some distant, indefinite time in the future. Such a construction would be in the interest of the speculator, rather than for the encouragement of the land improver and home builder.

erence

right, upon the theory that he needs ti

The statute gives the riparian owner a pref decree shall not be a bar to another applica

tion for condemnation of such of the reand will avail himself of the privilege thus served water as is not then needed and used. given him. If he is not using the water, and does not purpose to use it as soon as prac HADLEY, C. J., and CROW and DUN.. ticable in the ordinary and reasonable devel BAR, JJ., concur. opment or cultivation of his lands, then there is no reason why the water should be withheld from others who need and will

(47 Wash. 243) promptly use it if permitted. Irrigation is

In re JACKSON ST., etc., IX CITY OF an important means of developing the country

SEATTLE. and making its arid lands productive and val

(Supreme Court of Washington. Oct. 7, 1907.) uable. Hence the state has made provision 1. EmineNT DOMAIN – CONDEMNATION PROtherefor. It is not to the state's interest that

CEEDINGS-VIEW BY JURY-STATUTES.

Ballinger's Ann, Codes & St. § 4998, prothe water of a nonnavigable stream should be vides that, whenever in the opinion of the court idle or going to waste because one of its citi it is proper that a jury should have a view of zens, having a preference right to its use,

real property which is the subject of litigation,

it may order the jury to be conducted in a unjustifiably neglects to avail himself there

body, in custody of a proper officer, to the place of, while others stand ready and willing, if which shall be shown to them by the judge or permitted, to apply it to the irrigation of by a person appointed by the court for that their arid lands. On the other hand, the

purpose. Held, that such section was sufficient

ly broad to cover condemnation proceedings. preference accorded an abutting property 2. TRIAL-VIEW BY JURY-PERSONS ACCOMowner should not be limited to his immediate PAXYING JURY. present use of the water. Circumstances Ballinger's Ann. Codes & St. § 4998, aujustifying some delay might be such as to

thorizing the court to order a view of real es

tate by a jury, expressly provides that the court prevent him from constructing the ditchres,

may appoint a person other than a bailiff to flumes, dams, piping, and other equipment point out the place or property to the jury. necessary to place all of his irrigable land 3. EMINENT DOMAIN — PROCEEDINGS-View

STATUTES. under irrigation at once. We think it com

Ballinger's Ann. Codes & St. $ 1998, auports with the general policy of the state to thoạizing the court generally to appoint a person hold that this statute contemplated the use by other than a bailiff to point out property in the abutting owner of the water necessary for

controversy to a jury during a view, was not

limited by section 783, authorizing the court on .his present needs and for those that accrue as

motion of the petitioner in such a proceeding or he in good faith proceeds with reasonable of any person claiming compensation to direct dispatch to construct the means for applying

that the jury (under the charge of an officer of the water to his adjacent arid land.

the court) should view the premises which it

was claimed by any party to the proceedings The order of condemnation made by the would be taken or damaged by the improvehonorable superior court herein is reversed,

ment. and the case remanded, with the following in 4. NEW TRIAL-OBJECTION-TIME. structions: The trial court shall ascertain

Where the court appoints a person to point

out property in controversy to a jury during a how much of appellant's land is ready for view, objections to the personnel of the person water at this time, and how much of its land appointed or that he was not sworn must be (owned at the time this action was com

| taken at the time of the appointment, and can

not be first urged on motion for a new trial. menced) it intends to and will within a rea

5. EMIYEYT DOMAIN-DAJAGES-EVIDENCE. sonable time say two or three years-place Where, in a proceeding to assess damages under irrigation from the waters sought to for land taken for the regrading of a street, the be condemned. Upon ascertaining the facts

buildings on the property in controversy were

not taken, evidence that some of the buildings as to these matters, the order of appropria might be lowered or moved off the premises and tion shall except from its operation a suffi moved back after the lots were cut down to the cient amount of water to meet the present

new grade was admissible. needs of relators and the needs that will ac

6. SAJE-IXSTRI'CTIONS.

In a proceeding to assess damages to abutcrue within a reasonable period of the im

ting property by a change of 'street grade, the mediate future, so far as the court can de court properly refused to charge that the city termine by the preparations made and from could not grant any person an exclusive fran

chise for the use of any street, or part of a all the facts and circumstances shown, and

street, for the purpose of showing that the city the expressed intentions and purposes of re could not permit the use of the street by builcilators and their evident good faith relative

ings while the lots were being cut down to the to promptly placing said lands under irriga

new grade. tion. If the relators fail to use promptness

7. SAME-STATUTES-FINDINGS.

Ballinger's Ann. Codes & St. $ 77.5 et soq., and good faith in appropriating and using relating to condemnation of land for municipal the water reserved to irrigate their abutting

purposes, makes a clear distinction between ihe lands, and at the end of the period fixed by

taking and dainaging of property, and section

784 provides that, if there are buildings standthe court, as hereinbefore indicated, it shall ing in whole or in part on any land to be appear that they have not under irrigation taken, the jury shall add to the damage to the a sufficient amount of land to make neces

land the damage to the building or part necess

sary to be taken, if it be the property of the sary the use of all the water reserved to

owner of the land, and when owned by any them in the decree now to be entered, said | other person the damages to the building shall

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