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cretion in regard to a material matter to justi- the report is made up, copies are made by fy the reversal of a case for such reason. the use of blank sheets and a wet blotter from
There was no error in the ruling allowing the ink on the original report; in other words, in evidence the book of original entries, pur- letterpress copies of the original are made. porting to be a record kept by the railroad The copies are reproductions of the handcompany of the numbers and daily sales of writing of the original report. It is but tickets. The court, in the first place, on the another way of making duplicates of the objection of the defendant, refused to admit original entry. If the party who made the such record, but the district attorney stated original entry had made at the same time that he intended to connect it by the testi- several duplicates in his own handwriting mony of Kern, who made the original entries. they would all be regarded as original entries. After such statement no further objection was Instead of doing this the writing is repro. made by the defendant, and the record was duced from the same characters and the same received in evidence. The district attorney ink on the original. The duplicates are thus afterwards called Kern, and identified the more exact than they could possibly have record as he promised to do.
been by having been copied in the handwritThe district attorney asked of the witness | ing of the party who made the original. And Bailey the following question: "Is there while it appears that the record as to the any way that you can tell or estimate the closing numbers of the tickets sold on the time that that ticket was sold, from itself, of 26th and 27th days of April, 1905, was offered your own knowledge?” The court overruled in evidence by the district attorney, and the the defendant's objection that the question defendant's objection thereto overruled, it called for the opinion of the witness, and does not appear that the record was actually was incompetent, irrelevant, and immaterial, received or read in evidence. No copy of any and such ruling is urged as error. The ques
such record is in the transcript. The witness tion was not objectionable, and, more than
evidently refreshed his memory by the use this, the witness answered in effect that he of the duplicate entries, which he had the had no way of telling when the ticket was right to do. He testified that the closing sold except by the record as to the numbers
numbers on the 26th and 27th days of April of the tickets sold on that evening.
were in his handwriting. He then testified There is no merit in the contention that that the closing number on the 26th was the court should not have allowed the wit
376,194, and on the 27th 381,752. No objecTipss Freel to testify to the fact of finding the
tion was made to the witness using the letterworks of two watches in a suit case in de
press copies for the purpose of refreshing
his memory. fendant's room. The district attorney introduced evidence tending to prove the works
Defendant, in the cross-examination of the of the two watches so found were part of the
witness Conrad, appears to have offered a
letter in evidence to which the district atproperty stolen by the party who committed
torney objected on the ground that it was the burglary. The burglary is alleged to
The have been with intent to commit larceny.
hearsay and a self-serving declaration. The fact that stolen property is found in pos
court sustained the objection, and the ruling session of defendant in cases of larceny is
is assigned as error. As the record does not
show the contents of the letter, nor its subalways a circumstance tending to prove his
stance, nor by whom it was written, we guilt. If unexplained, it is a most potent
must presume that the ruling of the court was circumstance. The defendant here made no
correct. attempt to explain the circumstances as to
There was no error in the instruction to why the works of the watches were in the
the effect that the jury might, if the evidence suit case in his room. Nor was it error to
warranted, find the defendant guilty of bursustain the objection of the district attorney
glary in the first degree. The degree dependto defendant's question, asked of the witness
ed upon the time the burglary was committed. Rosenblatt, as, to whether or not she exam
When the Fritschie family awoke at about ined the defendant's room, and whether or
5:30 o'clock a. m. of the morning of April 28, not she saw any burglar's tools or implements,
1905, they found that the house had been files, or keys around the room. The fact that
entered during the night and various articles such tools were not found, if true. would
stolen therefrom. The burglar had departed. not be competent to prove the defendant in
As to when the entry was made and the nocent.
property stolen was a question of fact for The defendant seems to earnestly urge that
the jury, and might be arrived at from all the court erred in admitting the record of
the facts and circumstances. There was suffithe railroad company as to the numbers and
cient evidence to justify the implied finding report of tickets sold each day, and the testi
of the jury that the entry was in the nightmony of the witness Kern based upon such
time. record. As to the first part of the objec
There are no other points sufficiently plausition, it appears that the record or report as
ble to merit discussion. to the numbers of tickets sold is made up
The judgment and order are affirmed. by the agent, who is in charge and sells the tickets, at the end of the day. When We concur: HARRISON, P. J.; HALL, J.
(4 Cal. A. 109)
that, upon the findings the court should have BREE v. WHEELER.
adjudged him the owner of all of said water
instead of decreeing that each of the parties (Court of Appeal, Third District, California. July 16, 1906. Rebearing Denied by Su
owned one-half thereof. The finding relating preme Court September 14, 1906.)
to the agreement above mentioned is in sub1. ADVERSE POSSESSION-WATER RIGHTS.
stantial accord with the averment of the No title to water rights accrued by adverse amended answer in that behalf, and in subpossession, where plaintiff annually interrupted stance is as follows: In 1885, each of the defendant's use.
parties hereto was claiming the water in [Ed. Note.-For cases in point, see vol. 1, Cent. Dig. Adverse Possession, 88 232-235.]
question, and defendant was using it for ir2 FRAUDS, STATUTE OF-WATERS AND WATER
rigating his land, against the protest of plainCOURSES-AGREEMENTS--PART PERFORMANCE.
tiff. They talked the matter over, and it was Though Code Civ. Proc. $ 1971, and Civ. orally agreed to avoid litigation and in setCode, $ 1624, classify water rights as realty, and tlement of their respective rights to the use require written agreements relating thereto, where an oral agreement, actually dividing the
of the water, that they should divide it, the water, was acted on and gave to each of the par- | plaintiff taking it during the night, and the ties possession of one-half the water, and nothing defendant during the daytime. This method remained to be done, except the execution of a
of division continued for two seasons, whereconveyance, a court of equity will protect the rights of the parties.
upon, plaintiff being dissatisfied, the manner [Ed. Note.-For cases in point, see vol. 23, of division was changed by mutual consent, Cent. Dig. Frauds, Statute of, $$ 334-341.) and a measuring box was put in the stream 3. SAME - AGREEMENTS FIXING WATER which equitably and fairly divided the water, RIGHTS.
each party taking one-half thereof both day Where parties have entered into an oral
and night. This method continued for two agreement settling disputed water rights, which is carried into effect, and have acquiesced in it
seasons, but in 1889 plaintiff again became for a considerable time, such agreement is not dissatisfied, and wrongfully tore out the measwithin the statute of frauds.
uring box. Then a board was placed in the 4. CONTRACTS-REPUDIATIONS.
stream by defendant, at his own expense, at a A party to an executed agreement cannot repudiate it without the other's consent.
level, with two holes of equal size, to divide [Ed. Note.-For cases in point, see vol. 11,
the water equally, and plaintiff removed this Cent. Dig. Contracts, $ 1143.]
appliance. The defendant then took all the 5. WATERS AND WATER COURSES-AGREEMENT water, leaving none for plaintiff. After the AS USE-ABANDONMENT.
recital of the foregoing facts, the finding Where plaintiff and defendant orally agreed reads as follows: "Defendant continued to concerning a division of water rights, and de
divide the water as long as plaintiff would fendant placed in the stream a measuring box for the purpose of dividing the water and, after
permit him to do so. In order to divide the its use for some time, plaintiff took it out and same it was necessary that a measuring box defendant again, at his own expense, replaced or other suitable appliance be maintained at such box, and it was again taken out by the
the point of diversion. Unless such means plaintiff, whereupon defendant used all the water, such subsequent use did not destroy his of division was maintained, defendant could right to the quantum fixed by the agreement. not divide the water. This condition of af. 6. SAME.
fairs continued from 1889 until the comWhere the parties mutually agreed on a mencement of this action.” As the plaintiff division of water rights, defendant, having been forced to defend his rights, could rely not only
interrupted the defendant's use annually, no on his original claim of right, but on the rights
title by adverse possession could accrue, and claimed under the agreement and could not be hence the rights of the latter, and the validrequired to elect.
ity of the judgment depend entirely upon the Appeal from Superior Court, Nevada Coun- effect of the compromise agreement or settlety; F. T. Nyland, Judge.
ment. Action by William Bree against Lewis
Water rights are classed as real property, Wheeler. From a judgment for defendant,
and hence, under the general rule, any agreeplaintiff appeals. Affirmed.
ment relating thereto must be in writing.
Code Civ. Proc. $ 1971, Civ. Code, $ 1624; Chas. W. Kitts and Thos. S. Ford, for ap
Hayes v. Fine, 91 Cal. 498, 27 Pac. 772; Blanpellant. J. M. Walling, for respondent.
kenship v. Whaley, 124 Cal. 301, 57 Pac. 79.
But in the case at bar the agreement was MCLAUGHLIN, J. This is the second ap- acted upon by placing a measuring box in peal in this case-Bree v. Wheeler, 129 Cal. the stream, and actually dividing the wa146, 61 Pac. 782. Upon the second trial, had ter, and by mutual consent of the parties on amended pleadings, the facts found show each was placed in possession of one-half that up to 1885 plaintiff was the owner of thereof. To complete the transfer nothing all the water in dispute and that defendant remained to be done except the execution of a did not acquire title thereto by adverse pos- conveyance, conveying a proper proportion of session, or otherwise, unless an agreement, the water to each. Each had a perfect equity, affirmatively pleaded in the amended answer entitling him to a deed from the other. and found by the court, operated to give him When such is the case, a court of equity, in the right to one-half of the water.
accordance with its familiar rules, considerFlaintiff, who is appellant here, contends ing that as done which ought to be done, will
protect the right obtained "as readily and as fully as a legal title.” Flickinger v. Shaw, 87 Cal. 133, 25 Pac. 268, 11 L. R. A. 134, 22 Ani. St. Rep. 234; Blankenship v. Whaley, supra, and 112 Cal. 566, 76 Pac. 233; Griseza v. Terwilliger, 141 Cal. 462, 77 Pac. 1034; Bates v. Babcock, 95 Cal. 486, 30 Pac. 605, 16 L. R. A. 745, 29 Am. St. Rep. 133; Bigelow on Fraud, vol. 2, p. 443. There is another principle of law under which the agreement must be held binding. It has been held repeatedly and with practical unanimity that an oral agreement fixing a dividing line between owners of land is not within the statute of frauds, and that when the line is in doubt or dispute a settlement between the owners determines the location of the existing estate of each, and when followed by possession and occupancy, binds them in equity and at law as well. "If the parties have carried the agreement into execution, and entered into possession in accordance with it, the courts will not disturb it, though both parties were mistaken as to the true location of the line." Jones on Real Property. Ss 3.71, 3:78; White v. Spreckels, 75 Cal. 610, 17 Pac. 713; Helm v. Wilson, 76 Cal. 18.7, 18 l'axes. (01. “It is the policy of the law to give stability to such an agreement, because it is the most satisfactory way of determining the true boundary, and tends to prevent litigation." Cavanaugh V. Jackson, 91 (:). 592. 27 Pac. 931: Dierssen v. Nelson, 138 (al. 398. 71 Pac. 4.36. This doctrine is based on the common-sense proposition that when a dispute exists between two parties, they mar adjust their differences by mutual agreement which, when executed by them will be held binding as to each, and we can think of no reason in law or logic why the principle thus applied to land should not be applied to a case where the parties have (leliberately entered into an agreement settling disputed water rights, which agreement was immediately carried into effect, and was acquiesced in for a considerable period of time. And if such an agreement relating to land (annot be disturbed by the parties after it has been carried into effect, a similar
executed agreement relating to another class of real property must be held equally efficacious. Jones on Real Property, $$ 358, 359. It must, therefore, be held that plaintiff could not repudiate the agreement made, carried into effect, and acquiesced in by him and by defendant. True, both might, by mutual agreement, repudiate it, but neither alone could do so. The court expressly finds that defendant performed the agreement as long as he was permitted to do so by plaintiff, and his subsequent use of the water did not destroy his right to the quantum fixed upon by mutual consent. It is the fixed policy of the law to encourage the settlement of disputes and the prevention of litigation, and when such settlement has been made, acted upon and acquiesced in, parties will not be permitted to violate the compact unless circumstances of fraud or undue influence are shown. Downing v. Murray, 113 Cal. 462, 45 Pac. 869; Pomeroy, Eq. Jurisprudence, $ 850. The agreement was sufficiently pleaded and proved. The defendant was not required to elect whether he would claim title to all or only part of the water. Having been forced into court to defend his rights, he was at liberty to rely not only on his original claim of right, but upon the rights claimed under the compromise agreement. Miles v. Woodward, 115 Cal. 314, 46 Pac. 1076; Banta v. Siller, 121 Cal. 418, 53 Pac. 93.). It would be strange indeed if the plaintiff, relying on his original claim and free to assail any and all rights claimed by defendant, could confine the latter to rights obtained under an agreement, which by the very commencement of the action plaintiff was attempting to repudiate. The findings are not inconsistent. The court in effect finds that plaintiff had a right to the whole of the water which right was impaired only by his voluntary act in entering into and effectuating the agreement which vested in defendant the right to one-half thereof.
The judgment is affirmed.
We concur: CHIPMAN, P. J.; BUCKLES, J.
(44 Wash. 239)
of Yakima county listed and appraised for ONTARIO LAND CO. F. YORDY et al. taxation what he described as blocks 352 and (Supreme Court of Washington. Oct. 27, 1906.)
372 in Capital addition to North Yakima, 1. TAXATION-TAX DEED-DESCRIPTION-Sur
Wash., and the same were taxed for the years FICIENCY.
1892, 1893, 1891, and 1895; that all taxes for The owner of land platted the same as these years became delinquent; that the counthe C. addition to a city, and the blocks were
ty foreclosed the same on blocks 352 and 372 consecutirely numbered, except that, where blocks 352 and 373 would ordinarily have ap
of Capital addition to North Yakima; that peared, a rectangular tract was slown, marked under the foreclosure decree a tax deed was "Reserved," and thereafter the assessor listed afterwards issued to the defendant Jay Yorfor taxation what he described as blocks 13:52 and 373 in such addition. A tax dere le
dy; that he afterwards paid all subsequent scribing such blocks was issued, and subsequent
taxes levied thereon; that on May 24, 1890, ly the one who had made the plat of the C. after the said Congdon and wife had platted addition platted the rectangular tract as II.'s
Capital addition, they deeded all of the land addition, subdividing the tract into blocks numbered from 1 to 4, inclusive. Held, that the
therein included to the plaintiff, the Ontario description in the tax deed was sufficient to Land ('ompany, but that, instead of describconvey the land that would have been included ing the same by lots and blocks, they conin blocks 32 and 373 on the plat of thn ('. addition, had they been located on such plat
veyed it as the W. 1% of the S. E. 14 and the according to their proper position.
E. 12 of the S. W. 14 of sertion 24, township [Ed. Note.For cases in point, see rol. 1.3, 13 X.. of range 18 E. W. J., excepting thereCent. Dig. Taxation, 1519.]
from the IIolton tract; that in the deed from 2. SAVE_TAX TITLES --- RIGHT TO RECOVER
Rigut TO RECOVER Congdon and wife to the plaintiff no allusion PROPERTY SOLD-CONDITIOXS PRECEDEXT- whatever was made to Capital addition to TENDER OF TAXES. Under the express provisions of Ballinger's
North Yakima; that on September 22, 1904, Ann. Codes & St. $ 5678, no action may be
after the tax deed above mentioned had been commenced to recover property sold for taxes executed and delivered to the defendant Yorrinless plaintiff tenders all taxes, penalties, and
(ly, and had been recorded, the plaintiff, the interests on the property.
Ontario Land Company, platted that portion Ed. Note.-For cases in point, see vol. 43, Cent. Dig. Taxation, $ 1.586.]
of capital addition marked "Reserved" is
"Ileerman's Addition to North Yakima." subAppeal from Superior Court, Yakima Coun- dividing said reserved tract into 4 blocks, ty; H. B. Rigg, Judge.
numbered from 1 to 4, inclusive, and each Action by the Ontario Land Company block being subdivided into 16 lots; that Yoragainst Jay Yordy and others. From a judg
dly had then taken possession of a portion of ment in favor of plaintiff, defendants appeal.
the tract marked "Reserved." claiming the Reversed and remanded, with instructions to
same under his tax deed; and that afterenter a decree for defendants.
wards the plaintiff, the Ontario Land ComIra P. Englehart, for appellants. E. B. | pany, instituted this action to eject him from Preble, for respondent.
(ertain lots, which it described in its com
plaint as being in blocks 1 and 2 of Heerman's CROW, J. This action was instituted by addition, making no reference whatever to the plaintiff. the Ontario Land Company, ('apital addition, or any part thereof. The against the defendants Jay Yordy and Min- trial court, after making its findings of fact nie 'E. Yordy, his wife, to recover possession and conclusions of law, entered a decree in of certain city lots in North Yakima. It ar- favor of plaintiff, awarding it possession, and pears that the plaintiff's grantors, Chester the defendants have appealed. A. Congdon and ('lara B. Congdon, being own- The appellants contend that they are eners of the E. 12 of the S. W. 14 and the W. titled under the tax deed to that portion of 1% of the S. E. 14 of section 24, in township the land marked "Reserved," which would, by 13 N., of range 18 E. W. M., except 10 acres the consecutive system of numbering used in belonging to one Charles M. Holton, platted said original Capital addition plat, have conthe same on May 16, 1889, as Capital addition stituted blocks 3.32 and 372; while the responto North Yakima ; that the entire tract above dent insists that it has instituted this action described was apparently platted, with the to recover the possession of certain lots in exception of the Holton 10 acres; that Ileerman's addition to North Yakima, not inthrough the central portion of the plat, which cluded in the appellants' tax deed, and that included a certain body of land marked “Re- the tax deed in no way describes, nor does it served," and hereinafter mentioned, the blocks identify, any land included either in Capital were consecutively numbered; that, where addition or Heerman's addition. The main blocks numbered 352, 353, 372, and 373 would issue in this case, therefore, is whether the have ordinarily appeared, a rectangular tract description of the land as blocks 352 and 372 was shown, marked "Reserved," the same of Capital addition to North Yakima is suffibeing of sufficient size to include four ordi- cient in law to give validity to the deed. The nary blocks; that no explanation was afford- evidence shows that the respondent had ared, either by the dedication or upon the plat, tual notice and knowledge of the fact that an as to what was meant by the term "Re- attempt had been made to levy a tax upon yerved," nor was the use to which said tract that portion of its property marked "Rewas to be applied declared ; that the assessor served," and that it not only denied the valid
ity of such taxes, in interviews with two effort upon its part or any desire to learn how county treasurers, who called its attention to or under what description any levy of taxes the same, but also stood quietly by, during had been made. The blocks in Capital addi. the foreclosure proceedings and tax sale, and tion were numbered in such a manner as to in. with full knowledge of the same permitted dicate that blocks 352 and 372 would be lothe appellant Yordy to make his purchase cated on a particular portion of the reserved without its taking any action or making any tract, if such blocks could be construed to exprotest, and that it thereafter platted the re- ist. The entire plat fails to show any place served tract as Heerman's addition to North for blocks Nos. 352 and 372, so omitted, exYakima. It is a well-established principle of cept upon the reserved tract. This tract was law that a description in a deed or other in- in the exact location where such numbers strument affecting title to real estate is suffi- would occur in the regular and consecutive cient if it affords an intelligent means for course and system of numbers, employed in identifying the property and does not mislead. the plat. There is evidence tending to show In other words, if a person of ordinary intel- that for some time prior to the year 1892 this ligence and understanding can successfully tract was used as a park by the city of North use the description in an attempt to locate Yakima; that during said period it was not and identify the particular property sought taxed, but that it was afterwards abandoned to be conveyed, the description answers its by the city. It then became the imperative purpose and must be held sufficient. Mr. duty of the county assessor to list it for taxaJones, at section 323 of his treatise on the tion. He was compelled to do this under Law of Real Property in Conveyancing, says: some description, so he designated the por"The first requisite of an adequate description tion afterwards purchased by the appellant is that the land shall be identified with reason- Yordy as blocks 352 and 372 of Capital addiable certainty, but the degree of certainty re- tion to North Yakima. Under all the cirquired is always qualified by the application cumstances, we think this a sufficient descripof the rule that that is certain which can be tion to identify the property and support the made certain. A deed will not be declared assessment, levy, foreclosure, and tax deed. void for uncertainty if it is possible by any No person of ordinary intelligence could fail reasonable rules of construction, to ascertain to correctly identify the property intended to from the description, aided by extrinsic evi- be taxed and afterwards conveyed, and the redence, what property it was intended to con- spondent could not destroy the sufficiency of vey. The office of a description is not to the description used, or render it ambiguous, identify the land, but to furnish the means of by bringing into existence a subsequent and identification. The description will be liberal- inconsistent description, when platting the rely construed to afford the basis of a valid served tract under another name. The entire grant. It is only when it remains a matter course of the respondent would seem to have of conjecture what property was intended to been adopted with a premeditated intention be conveyed, after resorting to such extrinsic to evade the payment of any taxes whatever evidence as is admissible, that the deed will upon the reserved tract, although at the time be held void for uncertainty in the descrip- it knew the same was liable to taxation, and tion of parcels.” When real estate is listed no court of justice should adopt any strained and assessed for taxation, it is ordinarily nec- rule of construction, the result of which essary that the assessment roll shall contain would be to aid it in any such enterprise. It a reasonably accurate description of the tract could have avoided any threatened cloud on sought to be taxed. The object of this re- its title or loss of its property by paying the quirement is stated by writers on taxation taxes, of which it had actual knowledge and and tax titles to be three-fold: (1) It is de- for the payment of which it knew it was signed to inform the owner of the claim upon justly liable. his property; (2) it is designed that intending The respondent has undertaken to attack purchasers may know what property will be the validity of the foreclosure proceedings, offered for sale in the event of the taxes be- doing so in response to the claim of title coming delinquent; and (3) it is also the in- pleaded in appellants' answer. We do not tention that under such description a proper think it can do so in this action, as it has not deed may be executed to the purchaser. Cool- tendered the delinquent taxes, as required by ey on Taxation (2d Ed.) p. 405; Black on Tax section 5678, Ballinger's Ann. Codes & St. Titles (2d Ed.) 8 112.
Ward v. Huggins, 16 Wash. 530, 48 Pac. 240; The respondent bad paid no taxes on the re- Merritt v. Corey, 22 Wash. 444, 61 Pac. 171. served tract for the years included in the The judgment of the superior court is reforeclosure proceedings, nor does it claim to versed, and the cause is remanded, with inhave done so. The tract was concededly pri- | structions to enter a decree quieting the titlo vate property subject to taxation. The own- of the appellants. er must have known that under ordinary procedure it would be assessed under some de- MOUNT, C. J., and ROOT, FULLERTON, scription. It fails, however, to show any HADLEY, and DUNBAR, JJ., concur.