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tributing such water as may be necessary for the irrigation thereof, thus enabling each one to have for his land in the district, the benefit of a common system of irrigation, and bringing about the reclamation of the land of the district from aridity to a condition of suitability for cultivation. It was recognized that without such a

such a common system the individual landowners might be unable to obtain water for the irrigation of their lands, and that a work which would be for the public benefit and general welfare, viz., the reclamation from aridity of large portions of the lands of the state, might never be accomplished if left to individual enterprise. The irrigation district legislation, under which a public municipal corporation may be created for the purpose of fur. nishing water for the irrigation of the land within the district, has been sustained upon the same ground as has the levee and reclamation district legislation, which is, in effect, that the land included within the limits of such a district, requires, by reason of its situation and condition, the protection or reclamation thus made possible, and that it is for the public welfare that such protection or reclamation should be afforded such land. See In re Madera Irr. Dist., 92 Cal.

, 311-318, 28 Pac. 272, 675, 14 L. R. A. 753, 27 Am. St. Rep. 106.

The ultimate purpose of a district organized under the irrigation act is the improve'ment, by irrigation, of the lands within the district. It can, under the law, be organized and exist and acquire property only for such purjośc.

This we think is so clearly apparent as not to require further discussion here. Such a district holds all property acquired by it solely in trust for such ultimate purpose, and can divert it to no other use. See section 29 of the act of 1897, St. 1897, p. 263, c. 189. It has to do solely with the irrigation of lands within the district, and cannot appropriate water to any other purpose. The right of a landowner of the district to the use of the water acquired by the (listrict is a right to be exercised in consonance with and in furtherance of such ultimate purpose, viz., for the improvement by irrigation of lands within the district, and in no other way. His right is always in subordination to the ultimate purpose of the trust. So far as he proposes to use the water for the irrigation of lands within the district, he is proposing to use it in furtherance of the purpose of the trust, and is entitled to have distributed to him for that purpose, such proportion as his assessment entitles hiin to. Section 18, Act 1897, St. 1897, p. 279, c. 189. To this extent only can he be held to be the owner of any share or portion of the water, except that, by virtue of the proviso of section 18 (St. 1897, p. 239, c. 189), he may assign the right to the whole or any portion of the share to which he is entitled.

This does not mean, however, that he may make an effectual transfer of his share, free from the trust by which it is incumbered. It still remains subject to that trust, and, therefore, can be used only for the irrigation of lands within the district, and the irrigation district has no authority to distribute it for any other purpose. The right of assignment conferred by the act on a landowner is limited by the whole policy of the statute to an assignment for irrigation within the limits of the district. We do not understand the contrary to have been held in Board of Directors v. Tregea, 88 Cal. 334, 353, 26 Pac. 234.

We are satisfied that plaintiff was not entitled, either as owner or assignee of Burke, to have any water distributed to him by the defendants for use upon land without the limits of the district. As already stated, the record does not show that he has ever been denied water for use upon

his land within the district. Plaintiff alleged in his complaint that for more than five years prior to the refusal of defendants to apportion and distribute to him water for the irrigation of his land outside the district, he had claimed the right to use and had used under such claim upon such land, more than three-fourths of the water allotted to him, and that such use by him had been adverse to the irrigation district and with its full knowledge. This allegation was,

motion of defendants, stricken from the complaint as irrelevant, and evidence offered in support thereof on the trial was excluded. There was no error in these rulings. If it be assumed that the statute of limitations runs against such a district, plaintiff could not establish title by prescription to this water as against the district in this action, and such plainly was not the object of the allegation or offered evidence. The allegation is not that he ever claimed to own the water as against the district, or in any other capacity than as a landowner of the district, but simply that he had claimed the right, as such landowner, under the law governing such districts, to use his share of the water on the lands outside the district, and had so used it for the five years under such claim and with the knowledge of the district. This could not give him any right by prescription to such use of the water, or afford him any ground upon which he could insist upon a continuance of the unwarranted use. It was wholly irrelevant in this action. In view of our conclusion upon the main question presented and already discussed, the other specifications of error in the record are immaterial, and require no discussion.

The judgment and order are affirmed.

We concur: SHAW, J.; SLOSS, J.





(14 Wash. 146)

appeal shall be dismissed and no new appeal ARTHUR D. JONES & CO. V. SPOKANE taken. This provision not to apply if appeal VALLEY LAND & WATER CO.

is dismissed for any other reason. Dated (Supreme Court of Washington. Oct. 17, 1906.)

June 20, 1906." The record on appeal was 1. APPEAL – RIGIT OF APPEAL WAIVER

not filed in this court in time to be assigned STIPULATIONS.

for hearing, and the case was not assigned The parties to a suit may bind themselves

upon the October calendar. Respondent by a stipulation waiving the right of appeal, provided such stipulation is in writing based

thereupon moved to dismiss. on a sufficient legal consideration and made a

"The parties may bind themselves by a part of the record in the cause.

stipulation waiving the right of appeal," and [Ed. Note.-For cases in point, see vol. 2, "the attorney of record may bind his client Cent. Dig. Appeal and Error, $8 1008-1014.]

without special authority by a stipulation 2. ATTORNEY AND CLIENT-AUTIIORITY OF AT

waiving the right of appeal." 20 Enc. Pl.


& Pr., pp. 636, 637. “An agreement of a An attorney of record may bind his client party to waive the right of apneal will be without special authority by a stipulation waiv- recognized as a binding contract by the ing the right cf appeal.

It must be supported by a sufficient [Ed. Xote.-For cases in point, see vol. 5, Cent. Dig. Attorney and Client, § 156.)

legal consideration, and the contract must 3. APPEAL-WAIVER-STIPULATIONS --- Avoid

be expressed in writing, and made part of the ANCE.

record in the cause.” 2 Enc. Pl. & Pr., Where parties to a suit made a valid stip- p. 173. The foregoing rules seem to be supulation that any appeal from the judgment en

ported by abundant authority cited in the foot tered should be taken in time to be heard at the October, 1906, term of the Supreme Court,

notes in the volumes from which the rules are otherwise the appeal should be dismissed, the

quoted. Counsel for appellant does not condismissal of an appeal not so taken could not tend that the stipulation was invalid or withbe avoided because appellant's counsel was mis

out consideration or authority, but seeks to taken as to the date of the commencement of the October term of the Supreme Court, which

avoid a dismissal of the case upon the ground resulted in his failure to perfect his appeal in that he supposed the October term began time for hearing at such term.

upon the fourth Monday instead of the second Fullerton, J., dissenting.

Monday in October, 1906. We think this is Appeal from Superior Court, Spokane Coun- not a sufficient excuse. It was counsel's ty; Henry L. Kennan, Judge.

duty to know exactly when the term began. Action by Arthur D. Jones & Co. against The Statute (section 4652, Ballinger's Ann. the Spokane Valley Land & Water Company. Codes & St.) and the rules clearly provide From a judgment for plaintiff, defendant the dates for the beginning of each session. appeals. On motion to dismiss. Granted. If counsel did not know the dates upon which Happy & Hindman and Allen & Allen, for

the sessions began when he entered into the

stipulation, it was his duty to inform himappellant. Gallagher & Thayer, for re

self and to comply with his stipulation to spondent.

have the appeal in this court in time. CounMOUNT, C. J. The respondent moves to

sel for respondent are in no wise to blame. dismiss the appeal in this case upon the

They have placed nothing in the way, but

the record shows they have expedited the ground that the appellant has failed to per

appeal whenever possible to do so, and no fect the appeal so that the same might be assigned for hearing upon the October, 1906,

blame for the delay can attach to the recalendar of this court. It appears that, while

spondent. the cause was pending in the lower court,

The appellant having wholly failed to comthe parties by their attorneys entered into

ply with the stipulation, the respondent is a stipulation which was in writing and filed

clearly entitled to have the appeal dismissed, as a part of the records in the cause, as

and it is so ordered. follow's, omitting the title of the cause and the signatures: "It is hereby stipulated by

DUNBAR, CROW, ROOT, and HADLEY, and between said plaintiff and said defend

JJ., concur. ant the Spokane Valley Land & Water Company that the above entitled cause shall FULLERTON, J. (dissenting). If the recbe tried on July 2, 1906, and that if either ord in this cause presented the question departy desires to have the testimony of D. C. cided by the majority, I would have no hesiCorbin, the trial shall be adjourned for com- tancy in concurring in the conclusion reached, pletion until a later day in July, 1906, at as I think a litigant may, for a valuable conwhich time his testimony may be taken as sideration, stipulate away his right of appeal, a part of the trial. It is further stipulated as he may other rights the law affords him. that either party desiring to appeal from the But as I view the record it presents an entirefinal judgment in said cause must perfectly different question than the one determined. any such appeal and serve their briefs and file In addition to the stipulation recited in the their transcript in time so that said cause main opinion the parties, by their attorneys, at may be assigned and heard at the October, a later date, entered into another stipulation 1906, term of the Supreme Court of said by which they agreed that the cause should state and if the appellant fail so to do, the be set down for hearing at the present session

87 P.-5

of this court. Through the inadvertence of brings a second suit against the defendant on counsel this stipulation did not reach the the original cause of action after such defendant clerk in time to comply with the rule, and

has instituted an action on the injunction bond

filed in the first action, the trial court acts he very properly did not place the cause within its discretion in postponing the assessupon the calendar. After it was learned by ment of damages on a default in the action on counsel that the cause was not placed on

the bond until the second suit on the original the calendar, the motion to dismiss was filed.

cause of action has been tried, and mandamus

will not lie to compel such assessment of damAt the hearing counsel for the moving par- ages before trial of the second action. ty frankly stated that the purpose of these [Ed. Note.--For cases in point, see vol. 33, stipulations, as must be apparent from the Cent. Dig. Mandamus, § 95.] very stipulations themselves, was to procure

Application by the state, on relation of J. a hearing of the appeal at the present session

II. McDonald, for a peremptory writ of manof this court, and he proffered, in case the

damus against R. S. Steiner, judge of the court would permit the appeal to be heard

superior court. Application denied, at this session, to waive his motion to dismiss and allow the case to go on the calendar, on Peter McPherson, for plaintiff. such terms as this court might deem just. The opposing counsel on this statement being CROW, J. This is an application for a made consented to the imposition of terms- Writ of mandamus to be directed to the in fact he had previously indicated that he Ilonorable R. S. Steiner, judge of the superior ought to be punished by the imposition of court of the state of Washington in and for terms rather than by a dismissal of his ap- Okanogan county, commanding him to propeal. The question presented to the court, ceed with the trial of an action. The relator, therefore, is not, may a litigant waive his J. H. McDonald, alleges that he is the plainright of appeal, but is, rather, will this court, tiff in an action for damages on an injuncto save the penalty of dismissal, consent that tion bond now pending in the superior court a cause not technically entitled to go upon of Okanogan county, wherein C. A. Blatt, as the present calendar be put thereon ?

principal, and Burt Hawthorn and H. G. On the question actually before us, I think Bragg, as sureties, are defendants; that after the decision wrong. It seems to me, not personal service the defendants filed their only to strike too harshly at the particular motion to quash the summons; that prior litigant, but to be contrary to the purpose to the hearing of said motion the relator filed and spirit for which the court was created. his motion for a default; that the motions This court, like an inferior court, has for its for default and to quash service were heard primary purpose the hearing of causes upon and overruled, the defendants being granted their merits, and when it dismisses appeals

15 days within which to plead; that, the for a mere failure to comply with some rule defendants having failed to answer or degoverning the practice not going to its juris- mur, the relator filed a second motion for dediction it does violence to the purposes for

fault; that prior to the hearing thereof the which it was created. Here the question

defendants demurred to the complaint; that presented is not jurisdictional. It is one on afterwards the second motion for default which the court may exercise its discretion,

was granted, whereupon the relator moved and to deny the appellant a hearing of his

the court to inpanel a jury to fix the amount appeal on its merits seems to me to be so far

of his damages; that the defendants made arbitrary as to give him just grounds for

an application to set aside the default, which complaint. In my opinion the cause should

application was, on February 13, 1906, denied, be placed on the calendar and heard at this

and the cause was continued until the May, term of court, and I therefore dissent from

1906, term of the court; that on May 9, 1906, the ruling of the majority.

the relator renewed his request to the court

to set a time for taking evidence in support (44 Wash. 150)

of his claim for damages, but that the re

spondent peremptorily refused to set any STATE ex rel. MCDONALD V. STEIN

time for the taking of evidence, and also re ER, Judge.

fused to hear the cause until another action (Supreme Court of Washington. Oct. 18, 1906.)

wherein C. A. Blatt was plaintiff and the re1. MANDAMUS-INFERIOR COURTS-CONTROL OF lator J. H. McDonald was defendant should PROCEEDINGS. Mandamus will not lie to control the dis

Le tried and determined. Upon the relator's crction or revise the judicial action of an in

application an alternative writ of mandamus ferior court, though it is the proper remedy to was issued, directing the respondent to procompel such court to proceed with the trial

ceed with the trial, or appear in this court of a cause when it refuses to do so either arbitrarilv.or on an erroneous view that it has

and show cause why he should not do so. no jurisdiction.

The respondent has filed his answer, from [Ed. Note.--For cases in point, see vol. 33, which it appears that during the year 1905, Cent. Dig. Mandamus, 88 61-61.]

one C. A. Blatt, being the C. A. Blatt men2. SAME-ASSESSMENT OF DAMAGES ON DE- tioned in the relator's affidavit, instituted FAULT.

an action in the superior court of Okanogan Where a plaintiff who has suffered a nonsuit in an action for the possession of land in

county against J. H. McDonald, the relator which a temporary injunction was granted herein, to determine Blatt's right to the ex

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clusive possession of a tract of land embraced in the original action in which the nonsult within certain mining claims in Okanogan was granted, but the respondent contends that county ; that in said action a temporary order the same will necessarily be determined in was granted, enjoining McDonald from fenc- the second action brought by Blatt against ing the land in controversy; that an injunc- McDonald. Respondent doubtless entertained tion bond was given, in which Blatt was the view that, if Blatt was at all times entiprincipal and Hawthorn and Bragg were sure- tied to the possession of the land, the amount ties; that, upon trial, a nonsuit was entered or damages which the relator McDonald upon the motion of McDonald, the action would otherwise be entitled to recover would was dismissed, and the restraining order was be materially decreased. It is not necessary dissolved; that the action now prosecuted for us to pass upon the correctness of this by McDonald, concerning which complaint is view. It does appear, however, that the made herein, was brought on the injunction respondent, in refusing to immediately call bond to recover damages against Blatt as a jury and try the cause, was exercising his principal and Hawthorn and Bragg as sure- judicial discretion. A writ of mandamus ties; that shortly thereafter Blatt instituted will not issue to control the discretion or a second action against McDonald, setting revise the judicial action of a trial judge, forth the same cause of action alleged in his although it is a proper remedy to compel a former suit, but that issue of fact has not court to proceed with the trial of a cause been joined therein; that at the May, 1906, wlien it refuses to do so, ujjon the erroneous term, McDonald demanded of the respondent view that it has no jurisdiction, or when it that his damage suit be set for trial; that makes such refusal arbitrarily. "Mr. Spelling, thereupon the respondent stated to McDonald in the second edition of his work on Injuncthat in respondent's opinion McDonald's

tions and Other Extraordinary Remedies, at right to damages would depend in a large section 1391, uses the following language: degree upon a determination of the issue "Mandamus is the appropriate remedy at the whether Blatt was in fact the true owner of hands of superior and supervisory courts to the mining claims during the time involved set the machinery of inferior courts in moin the controversy; that the question of

tion. It does not direct how such courts shall Blatt's ownership and right of possession was act, or to what effect they shall exercise their raised in his second action against McDonald; powers, but only to compel action when they that respondent considered it necessary to

refuse to act at all, and have come to a determine such question before there could standstill. Superior courts having general be an intelligent consideration of McDonald's superintending control of all inferior courts claim for damages; that, if McDonald would

may, in the maintenance of such control, isjoin issue with Blatt in his seconil action, sue, hear, and determine writs of mandamus, the court would set both cases for trial and

whenever there is a failure or a refusal of would either try them together or in consecu

an inferior tribunal to act in the matter in tive order, the respondent's intention being to which it is its plain duty to act and its refirst try the Blatt case; that the respondent fusal deprives or bars any one of a substanhad declined to set the damage suit for trial tial, legal, or equitable right.” Again, at secuntil both actions were at issue; that re

tion 1409, the same author says that the spondent further stated to McDonald as a granting of a continuance or a stay of proreason for his action that the increasing vol- ceedings is for the most part a matter within ume of business in the four counties of his

the discretion of inferior courts, not subject judicial district made it necessary for him to

to control by mandamus. “As a general rule economize his time as much as possible; that

a continuance should be granted upon facts the two pending actions were between the that show that justice requires that the cause same parties; that the same witnesses would

should await the trial and conclusion of anbe necessary in the trial of each; that the other between the same parties; but the parissues in the one would materially affect the ties to the two actions must be identical, the issues in the other; and that he d'eemed it issues must be the same, and it is essential proper to set the two cases for trial at the that the entire relief demanded and sought same time.

for in the first action can be awarded in the This proceeding is now before us for deter- other. It seems that the granting of a conmination upon the relator's affidavit and the tinuance or motion to stay in such cases is respondent's answer. Certified copies of the governed by the same rules as in the plea of pleadings and orders in the case of McDonald another action pending, and the test lies in against Blatt et al. have been filed in this court the fact whether the evidence would support for our consideration in connection therewith. both actions. The granting or refusal of a These records show that the principal dam- / stay of proceedings in such cases is in a measages claimed by the relator, McDonald, in his ure discretionary with the court, but this disaction on the injunction bond, are alleged cretion should not be so extended as to deto have been incurred by reason of the loss prive a party of all remedy for his cause of of crops from the land involved in the con- action.” 9 Cyc. 88, 89. troversy between himself and Blatt. The We think the respondent was exercising merits of the alleged right of Blatt to either his judicial discretion in refusing to impanel ownership or possession were not determined a jury to assess damages until an issue could

be obtained and trial also had in the second FULLERTON, J. The appellant, a minor actiou brought by said Blatt against McDon- of the age of nine years, lost two of his toes ald, and we fail to find that he acted arbitra

on a pulley or sheave wheel operated by the rily, or that he has abused such discretion. respondent, a brewing company, and brought The parties and the issues in the two actions this action to recover for the injury suffered. alte substantially the same, and it may be The pulley in question was placed in the centhat before entire relief can be granted the ter of one of the spur tracks of the Northern second action instituted by Blatt against Mc- Pacific Railway Company, and was used by Donald should be tried. The respondent has the respondent in connection with a wire canot arbitrarily refused to proceed, nor has ble and donkey engine to move cars up and he refused to take jurisdiction. If the relat- down the track for the more convenient operor is anxious for a trial, he can obtain the ation of its brewing plant. The brewing same at an early date by forcing an issue in

plant of the respondent is situated at Georgethe second action brought by Blatt. When

town, in King county, just east of the main he does this, the respondent will proceed to tracks of the railway company which run try both actions with such promptness as the

parallel with, and immediately in front of, business of his court will permit.

the plant. There is a street in Georgetown The application for a peremptory writ is

called Nora avenue which runs at right andenied.

gles to the railway tracks crossing them just

south of the brewery company's plant. This MOUNT, .C. J., and ROOT, DUNBAR,

street had never been condemned across the RUDKIN, FULLERTON, and HADLEY, JJ.,

railway company's right of way, and all that concur.

part lying east of the track had been vacated

by ordinance of the town council some time (44 Wash. 179)

prior to the accident, the vacated portion beMCALLISTER V. SEATTLE BREWING &

coming thereby the private property of the MALTING CO.

respondent. The street, however, was not

closed to tra vel, and at the time of the acci(Supreme Court of Washington. Oct. 19, 1906.)

dent was used by a considerable number of 1. NEW TRIAL-TIME FOR APPLICATION-Ex.

the people who found it the most convenient TENSION. The trial court has power to extend the

means of passing to and from their own time in which a motion for a new trial may be property and the business section of the filed notwithstanding the statute requiring a

town. The street had never been improved, judgment on a verdict to be entered immediately

and travel over it took the most convenient on the return of the verdict. [Ed. Note.For cases in point, see vol. 37,

way. Where the street abutted on the railCent. Dig. New Trial, & 242.]

way right of way there was an embankment 2. NEGLIGENCE – DANGEROUS MACHINERY- of considerable height, to avoid which the

CARE REQUIRED – PLACES ATTRACTIVE TO travel turned, one track going next to the
Where dangerous machinery, of a charac-

brewing company's property and the other ter likely to excite the curiosity of children and

some distance the other way, neither passing allure them into danger, is left unguarded in an any nearer than perhaps 25 feet of the cenexposed place where children are likely to be,

ter of the street where it crossed the right of though on the premises of the owner, and a child is attracted to it and meets with in

way. The sheave wheel in question was jury, the owner is liable.

placed in the center of the street on the rail[Ed. Note.-For cases in point, see vol. 37, way company's right of way, where these Cent. Dig. Negligence, $$ 33, 34, 21.]

tracks diverged, having been placed there 8. SAME-QUESTIONS FOR JURY.

by the respondent with the railway compaWhether a sheave wheel over which passed a pulley used in moving cars along a railroad

ny's permission. It had no covering or protrack belonged to the class of dangerous ma- tection of any kind, and was used at all chinery, whether it was attractive or alluring times of the day the business of the respondto children, and whether it was placed and operated without guards so close to a public high

ent required it. While motionless the pulley way that it must have been foreseen that it was harmless, but when in motion it had all would attract and injure a child nine years the dangers incident to machinery of its old, were questions for the jury.

class. Just prior to the accident the minor [Ed. Note.—For cases in piont, see vol. 37, Cent. Dig. Negligence, $ 313.)

appellant in company with another boy of

about his own age, while passing over the Appeal from Superior Court, King County;

railway track on the path next the respondGeo. E. Morris, Judge.

ent's property, was attracted to the wheel Action by Orville McAllister, an infant, by

and went over to examine it. The boys do his guardian ad litem, Lavica McAllister,

not agree in their testimony as to the conagainst the Seattle Brewing & Malting Com

ditions immediately preceding the accident; pany. From an order granting a new trial

ial but the boy who accompanied the appellant after verdict in favor of plaintiff, he ap

seems to have the clearer idea of what happeals. Reversed, with instructions to enter .

pened. He testifies that the cable was being judgment on the verdict.

drawn slowly through the pulley when they John W. Roberts, for appellant. C. A. reached it, and that the appellant put his Reynolds and W. H. Brinker, for respondent, foot on when it started up rapidly drawing

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