the jury and rendering judgment for the defendant in this case, unless it appears that there was not sufficient legal testimony offered by the plaintiff to sustain a judgment. In fact, it is candidly stated by the attorney for respondent in his brief that, if it could be maintained that there was evidence legally sufficient to support a verdict, then it cannot be doubted that the jury should have passed upon the facts.

But it is contended that there was not sufficient evidence in the case. With this conclusion of learned counsel we cannot agree. It seemed to be the view of the trial court that the conduct of the defendant and the plaintiff's wife at any time after the separation of plaintiff and his wife was not pertinent nor material, on the theory, as indicated by the court, that there could be no alienation of affection where none existed. But it does not necessarily follow that affection does not survive a separation. No arbitrary standard of action can be erected by which conjugal affection can be tested or measured. It differs in intensity and constancy with the different temperaments and characters of the individuals. It may be so superficial that slight provocation would be sufficient to destroy it, or it may be so deeply rooted that it will survive neglect, disgrace, brutal treatment, and desertion. It sometimes even outlives legal separation, as is proven by many authenticated instances of men and women remarrying after divorce has been obtained. Husbands and wives in the heat of passion, engendered by wrongs, real or imaginary, may, and frequently do, separate from each other, and yet, when time gives opportunity for reflection and self-examination, it is frequently discovered by both parties that the actual cause of dissension was really trifling, that affection was not annihilated, but simply for the time being forced into the background, and reconciliation is devoutly desired by both. And it is this right to a reconciliation that a stranger has no right to interfere with, or deprive a husband or wife of. They are legally husband and wife until they are divorced, and legal responsibility still attaches to the husband to support the wife. It is wellestablished law in this country that evidence offered by the defendant to show a state of facts indicating that no affection existed between the plaintiff and his wife will not be heard as a bar to action for alienation of affection, but will simply be heard in mitigation of damages. Some of the authorities go so far as to hold that, where it was admitted that the wife had no affection for the plaintiff, a third party had no right to interfere or cut off any chance of an affection springing up in the future, and that it is not in the interest of good order and public morals to permit one who has no right to interfere to set up a disagreement, or even separation, as a complete defense to an action by the latter for the wrong. Elliott on Evidence, § 1650; 15 Am. & Eng. Enc. of Law (2d Ed.) p. 862;

In an action under Ballinger's Ann. Codes & St. § 3138, making any one liable for damages done by a fire kindled upon his land and negligently allowed to spread to land of another, evidence held sufficient to show defendant guilty of negligence.

Appeal from Superior Court, Stevens County; D. H. Carey, Judge.

Action by M. A. Kuehn against Fred Dix. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Lewis C. Jesseph, for appellant. W. H. Jackson and S. & J. W. Douglas, for respondent.

CROW, J. This action was commenced in the superior court of Stevens county by the respondent, M. A. Kuehn, against the appellant, Fred Dix, to recover damages sustained by the destruction of her crops and injury to her land by fire. Respondent's land lies immediately north of, and contiguous to, that of appellant. A large portion of the appellant's and respondent's ranches consists of low bottom land; the soil being formed from decomposed roots, willows, grass, tules, and other vegetation. During a portion of the year these lands are under water, which runs off during the summer months and harvesting season, leaving the surface dry. The soil, by reason of its composition, is combustible, and, when once ignited during a dry season, is liable to burn below the surface, smouldering and extending from one point to another. Often it will continue to burn until it reaches water level, some distance below the surface. The burning of this soil causes permanent injury to the land. Some time near the latter part of August, or early in September, 1904, appellant started a fire upon his own land for the purpose of burning brush. Respondent contended that appellant negligently allowed this fire to continue throughout the month of September; that about the 3d day of October a heavy wind caused it to rapidly spread over respondent's place and destroy a large amount of hay, and also injure her land; that the appellant had negligently set

out said fire and had also negligently failed to take proper precautions to prevent its spreading and damaging the respondent's land and crops. The appellant conceded that he started the brush fire about the 1st of September, and that during that month certain other fires were upon his land. He contended, however, that the brush fire had entirely subsided; that he had successfully used all necessary precautions to prevent the spread of any other fires from his land; that all of said fires had ceased to exist prior to October; and that the fire which had spread over respondent's land came from the place of one Jarvis, and not from appellant's. The court, upon trial without a jury, made findings of fact, from which it appears that the appellant was not originally negligent in setting out the fire upon his own land, but that he was afterwards negligent in not taking proper precautions to prevent its spreading upon the respondent's land; that by reason of such negligence it did spread over her land; and that she had sustained damages. From a judgment in favor of respondent, this appeal has been taken.

The appellant contends that the court erred in denying his motion for a nonsuit, and in rendering judgment for respondent. The appellant has presented a very exhaustive and well-prepared brief, raising numerous legal questions on the law of fires, which we think it unnecessary to consider, as the controlling questions before us arise entirely on issues of fact under the provisions of section 3138, Ballinger's Ann. Codes & St., which reads as follows: "If any person shall for any lawful purpose kindle a fire upon his own land, he shall do it at such time and in such manner, and shall take such care of it to prevent it from spreading and doing damage to other persons' property, as a prudent and careful man would do, and if he fail so to do he shall be liable in an action to any person suffering damage thereby to the full amount of such damage." Although the trial court found appellant was not negligent in starting a fire upon his own land, still he would be liable if he did not take such care of his fires as a prudent and careful man would, to prevent them from spreading and doing damage to respondent's property. He contends that he did take all such necessary precautions, but upon this question the evidence is conflicting. The court found him to have been negligent in this regard. From an examination of the evidence, we think this finding correct, and will not disturb it. It appears that the appellant built his fires at a time of the year when the land contained the very least moisture, and during a season that was especially dry. There was evidence tending to show that during the month of September, while fires were burning upon his land, he frequently left nome leaving no one to guard them, or prevent them from spreading; that, on the morning of the very day when the fire spread most rapidly and actually damaged respond

ent's property, appellant endeavored to divert the waters from a small stream for the purpose of flooding the land and quenching the fire, but that he again left home without leaving any one in charge or waiting to ascertain whether his efforts had been successful, and remained away until the damage was done. There is an abundance of other evidence to sustain all the findings made.

The only questions in this case calling for any serious consideration on this appeal being issues of fact, which the court properly determine in favor of respondent, the judgment will be affirmed.

MOUNT, C. J., and DUNBAR, HADLEY, FULLERTON, and ROOT, JJ., concur.

(42 Wash. 535)

SHEEHAN v. BAILEY BLDG. CO. (Supreme Court of Washington. April 11, 1906.)

1. APPEAL NOTICE AND STATEMENT OF FACTS -NOTICE-PERSONS ENTITLED.

On plaintiff's appeal, it is not necessary to serve the proposed statement of facts, nor the notice of appeal, upon a defendant as to whom plaintiff has voluntarily dismissed.

2. NUISANCE-STAIRWAY NEAR STREET.

Where defendant maintained a stairway leading to a basement, the top of the stairs being over 42 feet from the sidewalk and in a private alley, the stairway was not a nuisance, and defendant was not liable to a person who, while walking on the sidewalk and in attempting to avoid a runaway horse, fell down the stairs. [Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 52, 53; vol. 37, Cent. Dig. Nuisance, § 143.]

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

Action by James Sheehan against the Bailey Building Company. From a judgment for defendant, plaintiff appeals. Affirmed.

John Arthur, T. D. Page, and Reavis, Thorp & Wheeler, for appellant. Peters & Powell, for respondent.

ROOT, J. The respondent is the owner of a large brick and stone office building situated on the west side of Second avenue in the city of Seattle. Just south of this building, with a narrow private alleyway between, is the Butler block, a large brick and stone hotel building. In the basement of the Bailey building is a restaurant, which is reached from Second avenue by means of a stairway about 4 feet 6 inches wide and situated in the alleyway between said buildings. The top of this stairway is 4 feet and 7 inches from the line of the front (east side) of said buildings, which line is the west side of the sidewalk. From the said west line of the sidewalk to the top of the stairway there is a gradual slope of about five or six inches, and the sidewalk there, as well as the cement walk between it and the stairway, slopes slightly and gradually toward the south. The stairway leading to the basement is protected on the north and south sides by the walls

of the two buildings mentioned, and on the west side by an iron or steel railing. It is open and unguarded only on the east side, where it opens into the area of the alleyway leading to the street. On the 14th day of April, 1904, appellant, while walking along the sidewalk in front of said Bailey building, had his attention attracted to a runaway horse coming along on the sidewalk, and, in attempting to avoid being run over, he iu some manner, the evidence does not show how, entered said alleyway and fell down the stairway hereinbefore referred to, sustaining severe injuries. The case was brought on for trial before the court and a jury. At the close of plaintiff's case, a challenge was interposed to the sufficiency of the evidence, and a motion for nonsuit made, both of which were sustained, and the action dismissed. From the judgment of dismissal an appeal is taken.

The action was originally commenced against respondent and the city of Seattle, and both defendants appeared. Upon the day of the trial the case was dismissed as to the city, upon the motion of this appellant. Respondent here moves to strike the statement of facts and to dismiss the appeal, for the reason that neither the proposed statement of facts nor the notice of appeal was served upon the city. We do not believe the requirement of the statutes with reference to service of a proposed statement of facts and notice of appeal is applicable to a case where, as here, one of the defendants upon the motion of the plaintiff is dismissed from the action prior to or during the trial. McEachern v. Brackett, 8 Wash. 652, 657, 36 Pac. 690, 40 Am. St. Rep. 922; Watson v. Sawyer, 12 Wash. 35, 40 Pac. 413, 41 Pac. 43; Smalley v. Laugenour, 30 Wash. 307, 70 Pac. 786; First Nat. Bank of Seattle v. Gordon Hardware Company, 30 Wash. 127, 70 Pac. 251. Both motions will be denied.

Upon the merits, it is claimed by appellant that the respondent, in keeping an open stairway so near a much traveled street, was guilty of maintaining a nuisance, which was the proximate cause of the injury sustained by the respondent in falling, as hereinbefore stated. It is doubtless the law that the owner of premises adjoining a street shall not permit thereupon conditions calculated to occasion or permit injury to travelers using the street in the usual and ordinary manner, and such owner is liable for such injuries as are occasioned, by improper condition of his premises, to such travelers while making such usual and proper use of the street. But this record does not present a case of that kind. This stairway was used to reach the basement of the building where a legitimate business was being carried on, and to which it was proper that there should be access from the public street. The top of the stairs was 4 feet and 7 inches away from the sidewalk. The open area between the head of the stairs and the sidewalk was not a public thorough

fare, but was a private way furnishing access to those desiring to enter the basement of said building. That a pedestrian should stumble and fall from the sidewalk, or be hurled in any manner therefrom, in such a way as to fall or be precipitated down said stairway, would be an accident or circumstance not to be anticipated as naturally or necessarily incident to the use of said sidewalk and street. In other words, it would be an unusual and extraordinary occurrence, such as could scarcely be expected to happen other than through the fault or negligence of the person so falling or precipitated, or of some third person or agency. The owner of premises adjacent to a street is not required to anticipate or guard against such unusual and extraordinary occurrences. Teater v. Seattle, 10 Wash. 327, 38 Pac. 1006; Lorenzo v. Wirth, 170 Mass. 596, 49 N. E. 1010, 40 L. R. A. 347; McIntire v. Roberts, 149 Mass. 450, 22 N. E. 13, 4 L. R. A. 519, 14 Am. St. Rep. 432; Ray, Negligence of Imposed Duties, p. 116; Alline v. City of Le Mars, 71 Iowa, 654, 33 N. W. 160. We do not think the record in this case reveals any negligence on the part of the respondent.

The judgment of the superior court is therefore affirmed.

MOUNT, C. J., and DUNBAR, CROW, HADLEY, FULLERTON, and RUDKIN, JJ.,

concur.

(42 Wash. 551)

In re CITY OF SEATTLE. (Supreme Court of Washington. April 14, 1906.)

1. EMINENT DOMAIN-PROCEEDINGS-CONSTITUTIONALITY.

The fact that a city, after taking a portion of lots for widening a street, awarded compensation therefor, and then assessed the remainder for benefits accruing by reason of the improvement, did not constitute a taking of property without just compensation nor without due process of law.

2. APPEAL-HARMLESS ERROR-RULINGS ON

PLEADINGS.

It was not prejudicial error for the court on a petition for the widening of a street to strike a property owner's answer, where he was given an opportunity to introduce evidence concerning all the matters alleged in the answer. 3. MUNICIPAL CORPORATIONS-ASSESSMENTS FOR IMPROVEMENTS.

In proceedings by a city for the widening of a street, at the time the assessment roll was before the court for consideration a property owner offered evidence to show that buildings upon his lots had been damaged by the widening of the street. Held, that it was not error to exclude the testimony, as the question was one necessary to be tried by the jury in assessing damages to be awarded, and either was or should have been tried at that hearing. 4. SAME-CHANGE OF ASSESSMENT.

Inasmuch as the statute gives the court power to modify, change, alter, or annul an assessment of benefits on the widening of a street, the court had authority to order a per centum to be deducted from the amount originally assessed against property and make it a general charge against the municipality.

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

Petition by the city of Seattle for the opening and widening of a street. From an order confirming an assessment against property owners, H. M. Peters appeals. Affirmed.

H. E. Foster, for appellant. Scott Calhoun and Elmer E. Todd, for respondent.

FULLERTON, J. In September, 1903, the city of Seattle by ordinance directed that all that portion of Pike street lying between Fourth avenue on the west and Melrose and Minor avenues on the east be widened and altered by including therein a strip 10 feet in width on each side to be taken from the abutting property. The ordinance directed the corporation counsel to commence a proceeding to ascertain the just compensation to be paid the owners whose property would be taken by the proposed improvement, and also for the damages, if any, caused the property not taken. The ordinance also provided that the expense of the improvement should be paid by an assessment upon the property specially benefited. The appellant H. M. Peters owned certain lots abutting upon Pike street, and by the terms of the ordinance 10 feet off of the end of each of them was authorized to be taken for the use of the street. The corporation counsel began the proceedings as directed causing summons to be served upon the appellant as provided by law. The appellant appeared and filed an answer in which he put in issue the allegations of the petition, and claimed that his property would be damaged by the proposed improvement to the amount of $60,000. On motion of the city this answer was stricken by the court on the ground that an answer was neither necessary nor proper in such a proceeding. Thereafter a trial was had before a jury on the allegations of the petition, the court deeming them denied by operation of law. In this trial the appellant appeared and participated, and was awarded damages by the verdict of the jury in the sum of $10,000 for the part taken; the jury finding, however, that the remainder of his property would not be damaged by the improvement. Thereupon pursuant to the statute the city filed a supplemental petition praying for the appointment of commissioners to make an assessment of the property benefited for the purpose of paying the awards made to those whose property was to be taken and damaged. Commissioners were appointed who made out and returned into court an assessment roll in which the remaining property of the appellant was assessed as receiving benefits in the sum of $7,176. The appellant filed exceptions to the assessment, and after a hearing the court modified the roll by deducting therefrom 10 per centum of the amount assessed directing that the amount so deducted be a general charge against the city. The roll as modified was thereafter approved and confirmed, and the several

amounts assessed against the several lots, the appellant's as well as the others, declared a first lien thereon. This appeal is from the order confirming the assessment.

The principal contention of the appellant is based upon the fact that the city after taking a portion of his lots for the purpose of widening the street and awarding him compensation therefor, assessed the remainder for benefits accruing to it by reason of the improvement. This he says is taking his property without just compensation, and consequently without due process of law. But this precise question on a similar state of facts was before this court in Quirk v. Seattle (Wash.) 80 Pac. 207, and we there held that the proceeding violated no provision of the Constitution or laws of this state. This case is conclusive of the question in so far as the state Constitution and laws are concerned, and obviates the necessity of further discussing it. It is suggested, however, that the assessment violates the federal constitution, but we think that the Supreme Court of the United States decided to the contrary in Bauman v. Ross, 167 U. S. 548, 17 Sup. Ct. 966, 42 L. Ed. 270. The discussion in that case is able and exhaustive, and we do not feel that anything could be added to the reasoning by which the conclusion is reached.

As to the remaining assignments of error, it is complained that the court erred in striking out the answer filed to the original petition, and in refusing to hear evidence at the time the assessment roll was before the court for consideration to the effect that the buildings upon the appellant's lots were damaged by the widening of the street. But these exceptions are without merit on this appeal. The ruling of the court with reference to the pleading if error at all was without prejudice, as the appellant was given opportunity to introduce evidence at the hearing concerning all of the matters alleged in his answer, and he could have had no further privilege had his answer been permitted to remain in the case. The refusal to admit the testimony offered was not error because that question was one of the questions necessary to be tried by the jury in assessing the damages to be awarded the appellant, and either was or should have been tried out at that hearing.

Finally, it is contended that the assessment is illegal and voidable because the court ordered 10 per centum to be deducted from the amount originally assessed against the property and made a charge against the general fund of the city. But we think there was no error in this. The statute gives the court power to modify, change, alter, or annul the assessment, and we think it may lawfully find that an improvement is of sufficient general benefit to make a proportion of the cost a general charge against the municipality. If, however, it be intended by the objection to assert that the assess

ment was confined to an arbitrary district which did not include all of the property specially benefited by the improvement, then the answer is that there is no evidence in the record that such is the case. In so far as we can discover by the record all of the property specially benefited by the improvement is included in the assessment roll, and the court will not presume the contrary merely because the city council fixed a district for assessment prior to making the improvement. The judgment appealed from is affirmed.

MOUNT, C. J., and HADLEY, DUNBAR, ROOT, and CROW, JJ., concur.

(42 Wash. 555)

LEWISTON WATER & POWER CO. v. BROWN et al.

(Supreme Court of Washington. April 14, 1906.)

1. DEEDS-CONDITION SUBSEQUENT - BREACH —ENFORCEMENT OF FORFEITURE — ACTION— DEMAND OF l'OSSESSION.

Under Ballinger's Ann. Codes & St. § 5500, providing that any person having a valid subsisting interes. in real property and a right to the possession thereof may recover the same by action against the person claiming the title or an interest therein, a grantor in a deed is entitled to recover possession for breach of a condition subsequent, without having made a demand for possession prior to the commencement of the action.

[Ed. Note. For cases in point, see vol. 16, Cent. Dig. Deeds, § 531.]

2. CORPORATIONS-ESTOPPEL-ACTS OF PRESI

DENT.

A corporation could not be estopped to enforce a condition subsequent in a deed exccuted by it barring the maintenance of any barroom, saloon, or brewery on the premises, by a mere ex parte sta.ement by its president, without any action whatever on the part of its board of directors.

Appeal from Superior Court, Asotin County; Chester F. Miller, Judge.

Action by the Lewiston Water & Power Company against E. S. Brown and others. From a judgment for plaintiff, defendants, appeal. Affirmed.

R. E. McFarland and Graves & Graves, for appellants. Sturdevant & Bailey, for respondent.

FULLERTON, J. The respondent being the owner of a tract of land in Asotin county in this state platted the same into lots and blocks as a townsite under the name of the town of Lewiston; the name being afterwards changed by legislative enactment to Clarkston. These lots it put upon the market for sale, giving to the purchasers warranty deeds subject to a proviso in the following or similar language: "Provided, however, that in case the premises hereby conveyed should be used in any way for the purposes of any barroom, saloon, or brewery, that this instrument shall become void and the title to said premises and water right shall at once revert to, and revest in, said grantor, or its as

signs; this provision in no way relating to the manufacture of pure wine, syrups, etc., from the juices of the fruit." On October 30, 1897, the respondent conveyed by deed containing the foregoing proviso one of such lots to Frank Maruska from whom it passed by regular mesne conveyances to the appellant E. S. Brown. Brown leased the same to the appellants Reed and Wilson who fitted up a saloon thereon and engaged in the sale of intoxicating liquors. This action was thereupon brought by the respondent who prayed for a judgment and decree, declaring the appellant's title forfeited, that it have restitution of the premises, and that its title to the same be quieted. A general demurrer was interposed to the complaint and overruled, whereupon the appellants answered setting up affirmative matter thought to estop the respondent from claiming a forfeiture.

After

a trial, which was had before the court without a jury, judgment was entered for the respondent in accordance with the prayer of its complaint, and this appeal was taken therefrom.

The appellants first contend that the respondent cannot maintain this action for the reason that it neither alleged nor proved that it entered upon the lot, or made a demand for possession, prior to its commencement. A number of cases are cited which sustain the contention, and such undoubtedly was the rule at common law. But we think the rule has been done away with in this state by statute. By section 5500 of Ballinger's Ann. Codes & St. it is provided that any person having a valid subsisting interest in real property, and a right to the possession thereof, may recover the same by action in the superior court of the proper county against the tenant in possession, or, if there be no tenant in possession, then against the person claiming the title or claiming an interest therein. Neither demand nor re-entry is made a condition precedent to the right to maintain the, action, and, since this section was intended to supersede the common-law remedies for the recovery of real property, it must be held to contain in itself all of the limitations on the right to maintain such an action. That this is the correct rule under the statute is abundantly sustained by authority. Thus in Austin v. Cambridgeport Parish, 21 Pick. (Mass.) 215. it was said: "To entitle the devisee to maintain this action, it would, by the principles of the common law, have been necessary for her to have made an actual entry before instituting her suit, but by the provisions of the Revised Statutes great and important changes have been introduced into our system in relation to real actions, both in the form of the pleading and in the proof necessary to sustain such an action. The demandant is no longer required to prove an actual entry under his title, in those cases where such entry was necessary at common law, but if he shows that he is entitled to such an estate as he claims in the premises,