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tributing such water as may be necessary This does not mean, however, that he may for the irrigation thereof, thus enabling make an effectual transfer of his share, free each one to have for his land in the district, from the trust by which it is incumbered. the benefit of a common system of irrigation, It still remains subject to that trust, and, and bringing about the reclamation of the therefore, can be used only for the irrigation land of the district from aridity to a con of lands within the district, and the irrigadition of suitability for cultivation. It was tion district has no authority to distribute it recognized that without such a common for any other purpose. The right of assignsystem the individual landowners might be ment conferred by the act on a landowner unable to obtain water for the irrigation of is limited by the whole policy of the statute their lands, and that a work which would to an assignment for irrigation within the be for the public benefit and general wel limits of the district. We do not understand fare, viz., the reclamation from aridity of the contrary to have been held in Board of large portions of the lands of the state, might Directors v. Tregea, 88 Cal. 334, 353, 26 Pac. never be accomplished if left to individual 234. enterprise. The irrigation district legisla We are satisfied that plaintiff was not ention, under which a public municipal corpora titled, either as owner or assignee of Burke, tion may be created for the purpose of fur.

to have any water distributed to him by, the nishing water for the irrigation of the land

defendants for use upon land without the within the district, has been sustained upon

limits of the district. As already stated, the same ground as has the levee and re

the record does not show that he has ever clamation district legislation, which is, in

been denied water for use upon his effect, that the land included within the lim

land within the district. Plaintiff alleged its of such a district, requires, by reason of

in his complaint that for more than five its situation and condition, the protection or

years prior to the refusal of defendants to reclamation thus made possible, and that

apportion and distribute to him water for it is for the public welfare that such protec

the irrigation of his land outside the distion or reclamation should be afforded such

trict, he had claimed the right to use and land. See In re Madera Irr. Dist., 92 Cal.

had used under such claim upon such land, 2:26. 311-318, 28 Pac. 272, 675, 14 L. R. A. 755,

more than three-fourths of the water allot27 m. St. Rep. 106.

ted to him, and that such use by him had The ultimate purpose of a district organ

been adverse to the irrigation district ized under the irrigation act is the improve

and with its full knowledge. This al'ment, by irrigation, of the lands within the

legation was, motion of defendants, district. It can, under the law, be organized

stricken from the complaint as irrelevant, and exist and acquire property only for such

and evidence offered in support thereof on purpose. This we think is so clearly ap

the trial was excluded. There was no error parent as not to require further discussion

in these rulings. If it be assumed that the here. Such a district holds all property ac

statute of limitations runs against such a quired by it solely in trust for such ultimate

district, plaintiff could not establish title by purpose, and can divert it to no other use. See section 29 of the act of 1897, St. 1897, p.

prescription to this water as against the dis

trict in this action, and such plainly was 203, c. 189. It has to do solely with the irrigation of lands within the district, and

not the object of the allegation or offered

evidence. The allegation is not that he ever cannot appropriate water to any other pur

claimed to own the water as against the dispose. The right of a landowner of the dis

trict, or in any other capacity than as a trict to the use of the water acquired by the

landowner of the district, but simply that district is a right to be exercised in conson

he had claimed the right, as such landowner, ance with and in furtherance of such ultimate purpose, viz., for the improvement by

under the law governing such districts, to irrigation of lands within the district, and

use his share of the water on the lands outin no other way.

side the district, and had so used it for the His right is always in subordination to the ultimate purpose of the

five years under such claim and with the trust. So far as he proposes to use the water

knowledge of the district. This could not for the irrigation of lands within the dis

give him any right by prescription to such trict, he is proposing to use it in furtherance

use of the water, or afford him any ground of the purpose of the trust, and is entitled

upon which he could insist upon a continuto have distributed to him for that purpose,

ance of the unwarranted use. It was wholly

irrelevant in this action. In view of our consuch proportion as his assessment entitles hiin to. Section 18, Act 1897, St. 1897, p.

clusion upon the main question presented 279, c. 189. To this extent only can he be

and already discussed, the other specificaheld to be the owner of any share or portion

tions of error in the record are immaterial, of the water, except that, by virtue of the

and require no discussion. proviso of section 18 (St. 1897, p. 259, c. 189),

The judgment and order are affirmed. he may assign the right to the whole or any portion of the share to which he is entitled. We concur: SHAW, J.; SLOSS, J.

(14 Wash. 146) ARTHUR D. JONES & CO. V. SPOKANE

VALLEY LAND & WATER CO. (Supreme Court of Washington. Oct. 17, 1906.) 1. APPEAL – RIGIT OF APPEAL WAIVERSTIPULATIONS.

The parties to a suit may bind themselves by a stipulation waiving the right of appeal, provided such stipulation is in writing based on a sufficient legal consideration and made a part of the record in the cause.

[Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Appeal and Error, $8 1008-1014.] 2. ATTORNEY AND CLIENT-AUTIIORITY OF AT

TORNEY-RIGHT OF APPEAL-WAIVER-SripULATIONS.

An attorney of record may bind his client without special authority by a stipulation waiving the right cf appeal.

[Ed. Note.-For cases in point, see vol. 5, Cent. Dig. Attorney and Client, § 156.) 3. APPEAL-WAIVER-STIPULATIONS --- AvoidANCE.

Where parties to a suit made a valid stipulation that any appeal from the judgment entered should be taken in time to be heard at the October, 1906, term of the Supreme Court, otherwise the appeal should be dismissed, the dismissal of an appeal not so taken could not be avoided because appellant's counsel was mistaken as to the date of the commencement of the October term of the Supreme Court, which resulted in his failure to perfect his appeal in time for hearing at such term.

Fullerton, J., dissenting.

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by Arthur D. Jones & Co. against the Spokane Valley Land & Water Company. From a judgment for plaintiff, defendant appeals. On motion to dismiss. Granted.

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

appeal shall be dismissed and no new appeal taken. This provision not to apply if appeal is dismissed for any other reason. Dated June 20, 1906.” The record on appeal was not filed in this court in time to be assigned for hearing, and the case was not assigned upon the October calendar. Respondent thereupon moved to dismiss.

"The parties may bind themselves by a stipulation waiving the right of appeal," and "the attorney of record may bind his client without special authority by a stipulation waiving the right of appeal." 20 Enc. Pl. & Pr., pp. 636, 637. “An agreement of a party to waive the right of appeal will be recognized as a binding contract by the

It must be supported by a sufficient legal consideration, and the contract must be expressed in writing, and made part of the record in the cause.” 2 Enc. Pl. & Pr., p. 173. The foregoing rules seem to be supported by abundant authority cited in the foot notes in the volumes from which the rules are quoted. Counsel for appellant does not contend that the stipulation was invalid or without consideration or authority, but seeks to avoid a dismissal of the case upon the ground that he supposed the October term began upon the fourth Monday instead of the second Monday in October, 1906. We think this is not a sufficient excuse. It was counsel's duty to know exactly when the term began. The Statute (section 4652, Ballinger's Ann. Codes & St.) and the rules clearly provide the dates for the beginning of each session. If counsel did not know the dates upon which the sessions began when he entered into the stipulation, it was his duty to inform himself and to comply with his stipulation to have the appeal in this court in time. Counsel for respondent are in no wise to blame. They have placed nothing in the way, but the record shows they have expedited the appeal whenever possible to do so, and no blame for the delay can attach to the respondent.

The appellant having wholly failed to comply with the stipulation, the respondent is clearly entitled to have the appeal dismissed, and it is so ordered.

DUNBAR, CROW, ROOT, and HADLEY, JJ., concur.

MOUNT, C. J. The respondent moves to dismiss the appeal in this case upon the ground that the appellant has failed to perfect the appeal so that the same might be assigned for hearing upon the October, 1906, calendar of this court. It appears that, while the cause was pending in the lower court, the parties by their attorneys entered into a stipulation which was in writing and filed as a part of the records in the cause, as follows, omitting the title of the cause and the signatures: “It is hereby stipulated by and between said plaintiff and said defendant the Spokane Valley Land & Water Company that the above entitled cause shall be tried on July 2, 1906, and that if either party desires to have the testimony of D. C. Corbin, the trial shall be adjourned for completion until a later day in July, 1906, at which time his testimony may be taken as a part of the trial. It is further stipulated that either party desiring to appeal from the final judgment in said cause must perfect any such appeal and serve their briefs and file their transcript in time so that said cause may be assigned and heard at the October, 1906, term of the Supreme Court of said state and if the appellant fail so to do, the

87 P,-5

FULLERTON, J. (dissenting). If the record in this cause presented the question decided by the majority, I would have no hesitancy in concurring in the conclusion reached, as I think a litigant may, for a valuable consideration, stipulate away his right of appeal, as he may other rights the law affords him. But as I view the record it presents an entirely different question than the one determined. In addition to the stipulation recited in the main opinion the parties, by their attorneys, at a later date, entered into another stipulation by which they agreed that the cause should be set down for hearing at the present session

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 heir 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 bleing 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 impanel 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

of his claim for damages, but that the re(44 Wash. 150)

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. NANDAMUS-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 à cause when it refuses to do so either arbitrarily 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 Cd. Note.-For cases in point, see vol. 33, which it appears that during the year 1905, Cent. Dig. Mandamus, $$ 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

clusive possession of a tract of land embraced in the original action in which the nonsuit 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 Ilawthorn 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 second 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 1109, 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 deemed 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 travel, 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
CHILDREN.
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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