an issue of fact to be submitted to the jury, which was done under proper instructions given by the trial judge, and the verdict of the jury determined such issue in favor of the respondent.

The appellant requested the court to instruct the jury that the engineer was a fellow servant of the respondent, and that if he was negligent in failing to give the usual warning before starting the mill, the appellant was not responsible, such negligence being the act of respondent's fellow servant. And appellant now contends that the trial court erred in refusing such requested instruction. We are not prepared to say that the engineer would, under no circumstances, be a fellow servant of respondent and other employés in the mill. Under the facts here disclosed, however, we do hold that, in the matter of giving some proper warning before starting the mill, he was a vice principal of the appellant, and not a fellow servant of the respondent. It was the duty of the appellant to provide the respondent with a reasonably safe place in which to work. The evidence shows that the respondent was expected to do his work of filing this saw during the noon hour, while the mill was not running. The appellant knew that its servants might be in such situations and positions relative to the machinery while the mill was not running as to subject them to great hazard and danger should it be suddenly started without notice to them. It was customary for the appellant, by its engineer, to give a signal by two blasts of a steam whistle shortly before starting the mill, and in fact it was its duty to give some such warning so that its employés might remove themselves from positions of danger in which they might happen to be placed. In giving this warning, the engineer was performing a nondelegable duty of the master, thus discharging the duties of its vice principal. This being true, his negligence was that of the master. No evidence was offered by the appellant showing or tending to show that any warning was given. In fact, the undisputed evidence is to the contrary. We might reasonably assume that the respondent would not have been injured had the engineer performed his duty, for the respondent would then have been afforded ample time within which to remove himself from his position of danger before the machinery was placed in motion. We think the views here expressed are in strict harmony with the previous rulings of this court. McDonough v. Great Northern Railway Company, 15 Wash. 244, 46 Pac. 334; O'Brien v. Page Lumber Company, 39 Wash. 537, 82 Pac. 114; Dossett v. St. Paul & Tacoma Lumber Company, 40 Wash. 276, 82 Pac. 273. We have carefully examined the instructions given, and also those refused, and in view of the

| principles above announced, conclude that no prejudicial error has been committed in the matter of the instructions, but that the law was fairly and properly stated to the jury.

The appellant vigorously insists that, although the damages awarded by the jury were reduced by the trial judge, nevertheless the sum of $1,500 for which the judgment was finally entered is still excessive. While we would ordinarily feel much hesitancy in making a further reduction of damages, after one reduction had already been made by the trial judge, still we think this contention should be sustained. The evidence shows that the respondent was earning $5 a day at the time of his injury; that he was confined to the hospital about two weeks; that within a short time thereafter, as soon as the mills which had suspended again commenced work, he returned to his usual employment of saw filer, receiving a compensation of $7 per day. He complains that, by reason of the accident, he has been permanently injured, but at the time of the trial, which occurred about seven months after the accident, the court appointed two competent, experienced, disinterested physicians to examine the respondent, and report upon his actual condition. The result of their examination was such as to show that he has in reality sustained no permanent injury, and that he was at the time of their examination in excellent physical condition. They found a slight defect in his nostrils and throat, creating a liability to occasional attacks of bleeding from the nose, but their testimony was that this condition could not have been caused by or have resulted from the injuries of which he complained. The daily record kept by the attendants and nurses during the period of two weeks that he was in the hospital shows that his statements as to his condition and the character of his injuries are not entirely in accordance with the facts. We fail to find that he has suffered any damage or injury other than a brief loss of time and perhaps, some considerable suffering while he was in the hospital and for a very short period thereafter. We think the sum of $1,000 sufficient damages to be awarded the respondent, our only doubt being whether that sum may not be excessive.

It is ordered that if the respondent shall, within 30 days after the filing of the remittitur, agree to accept damages in the sum of $1,000, the judgment as thus modified be affirmed, otherwise that the judgment be reversed, and a new trial be granted. The appellant will recover its costs on this appeal.

DUNBAR, FULLERTON, and HADLEY, J.J., concur. RUDKIN and MOUNT, JJ., not sitting

(44 Wash. 482)

RABEL et al. v. CITY OF SEATTLE et al. (Supreme Court of Washington. Nov. 23, 1906.) MUNICIPAL CORPORATIONS-PUBLIC IMPROVEMENTS ASSESSMENTS FOR BENEFITS - PERSONS LIABLE-LESSEES OF STATE LANDS.

Though a lessee of state lands would be liable to an assessment for the enhancement of his leasehold caused by local improvements proposed by a municipality subsequent to his bidding for such leasehold, he was not liable to an assessment purporting to be made against the entire property instead of merely the leasehold where the ordinance providing for the improvements was passed prior to the issuance of the lease and presumably to the bidding therefor.

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by Christian Rabel and others against city of Seattle and others. From a judgment for defendants, plaintiffs appeal.

Reversed and remanded.

Guie & Guie, for appellants. Scott Calhoun and O. B. Thorgrimson, for respondents.

ROOT, J. Appellants, as lessees from the state of Washington, tiled their complaint in equity, asking for a permanent injunction to restrain the respondents from enforcing an assessment levied, or attempted to be levied, by the city of Seattle for municipal improvements alleged to be specially beneficial to the property leased by appellants, and to have said assessment stricken from the rolls. From a judgment in favor of respendents, this appeal is prosecuted.

On the 3d of October, 1904, the state leased certain state lands to one George James, who thereafter sold and transferred said lease and leasehold interest to appellants. The city council of Seattle, by an ordinance passed November 23d and approved November 24, 1903, provided for the improvement of Utah street, and for the payment therefor by the mode of "immediate payment," under the provisions of a certain city ordi

Under these proceedings an assessment was made, or sought to be made, upon the lots covered by appellants' lease. They contend that their leasehold interest in said lots is not subject to this tax or to any assessment on account of local improvements. The main question sought to be determined by the parties to this action is as to whether a leasehold interest in state lands can be assessed to pay for public improvements affording special benefits to the property leased or to the leasehold interest in said property. Where local improvements are legally proposed by a municipality, subsequent to the bidding of a prospective leaseholder for the property covered by his lease, and such improvements, when made, constitute a special benefit to such leasehold interest, we believe that said interest can be subjected to an assessment to pay for the special benefits thus accruing. Before delivering a lease, all of the property in a given parcel of real estate belongs to the

state. Hence, at such time it is nonassessable for any purpose unless clearly and expressly made so by Constitution or statute. When, however, any private individual or corporation acquires a leasehold of said property for a given period, the state ceases to be the owner of such interest during said time, but the lessee thereby becomes the owner of the rights accorded by the lease, and such rights are private property and assessable under the general rule of taxation. If the value of the right to the use of this property during, and by virtue of, the existence of the lease is specially enhanced by reason of a local improvement not contemplated and taken into consideration by the state at the time of accepting the lessee's bid for the lease, there would seem to be no reason in

law or right why this interest should not be assessed as all other private property specially benefited by said improvement. But such an assessment must be limited to the leasehold interest and not made against the interest retained by the state. Richard v. Perrodin, 116 La. 440, 40 South. 789. Where, however, the improvements are made, or their construction is regularly provided for, prior to the time of the bidding for the lease, we do not think that such improvements can be assessed against the leasehold interest. The effect of permitting such an assessment would be virtually to sanction a tax against the property of the state. If the state's property was about to be benefited by local improvements, it would be presumed that the additional value to be given such state property by such contemplated improvements would induce intending lessees to pay a higher rental than they otherwise would. If the bidder for a lease knew that local improvements were about to be made, but that the special benefits to be derived therefrom would be assessed upon the leasehold interest obtained from the state, it would have a tendency to deter him from bidding, or at least to induce him to bid less than he otherwise would. The effect would be to place the burden of the tax upon the state and doubtless, by reason of the uncertainty of the value of the improvements and the amount of special assessments, cause the state to lose more than the amount of the tax. For these reasons, in the absence of a statute expressly authorizing such a procedure, we do not think that an assessment made prior to the time the lease was bid for can be enforced against the interest of a lessee of state lands.

It appearing that the ordinance providing for the improvements for the payment of which this assessment was sought to be levied was passed prior to the issuance of the lease and presumably to the bidding therefor, and that the assessment purports to be made against the entire property instead of merely the leasehold, it follows that the judgment of the honorable superior court can

Under 1 Ballinger's Ann. Codes & St. § 1011, giving cities of the fourth class power to establish and lay out alleys, but making no provisions that orders therefor shall be by ordinance, where a petition was filed with a city council to open an alley, designating its location and size, an entry showing that on motion the petition was granted and the streets and alleys committee and clerk were instructed to obtain title to the necessary right of way, was sufficient without a formal ordinance or resolution.

[Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, §§ 802-809.] 2. STATUTES - ENACTMENT - SETTING OUT AMENDED STATUTE.

Laws 1893, p. 135, c. 62. providing that procedure for condemnation by cities of the fourth class shall be in the manner provided by the act relating to the appropriation of land by corporations, is not an amendment of 1 Ballinger's Ann. Codes & St. § 1017. providing that when it becomes necessary for a town to take property to establish or alter a highway and the council cannot agree with the owner as to the price to be paid, the council may direct proceedings to be taken under the general laws of the state to procure the land, and hence the former statute is not unconstitutional for failure to set out the section referred to as it would read as amended.

[Ed. Note. For cases in point, see Cent. Dig. vol. 44, Statutes, § 209.]

3. EMINENT DOMAIN-NATURE OF POWER PUBLIC USE-MUNICIPAL CORPORATION.

Laws 1893, p. 135, c. 62, empowering cities to condemn property for public corporate uses, includes streets or alleys to be used by the public, as well as property to be used by the corporation itself.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 18. Eminent Domain, §§ 27-34, 56-58.] 4. SAME STATUTORY PROVISION.

Laws 1893, p. 135, c. 62, relating to condemnation by cities of the fourth class, has not been superseded by subsequent legislation. 5. MUNICIPAL CORPORATIONS ALLEYS - EsTABLISHMENT-PETITION OF COUNCIL.

That a petition for the establishment of an alley was not signed by a majority of the property owners in the district did not affect the jurisdiction of the council in a city of the fourth class, since the city had authority to open allevs and streets for public use on its own initiative, without any petition.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 36. Municipal Corporations, §§ 740-743. 770.]

6. EMINENT DOMAIN-NATURE OF POWERUSE OF PROPERTY.

That a city intends to use an alley for a public sewer does not alter its power to condemn land therefor.

7. SAME-PROCEEDINGS TO TAKE PROPERTY

CONDITIONS PRECEDENT.

In proceedings by a city to condemn land for an alley, it is not necessary for the city to show an attempt and failure to agree with the property owners on the price to be paid for the land. 1 Ballinger's Ann. Codes & St. § 1292, which prescribes the procedure in such cases, containing no requirement that there should be an attempt to agree.

[Ed. Note. For cases in point, see Cent. Dig. vol. 18. Eminent Domain, §§ 462, 514.] 8. SAME

ALLEYS-ESTABLISHMENT-NECESSI

TY-EVIDENCE.

In proceedings by a city to condemn land. for an alley, evidence that the city had used for an alley a portion of the tract of land adjoining the proposed alley, part of its length, was properly excluded, a reasonable and not an absolute necessity being sufficient to justify the establishment of the alley.

Certiorari to Superior Court, Pierce County: Thad Huston, Judge.

Certiorari by the state on the relation of John D. Jones and others to the superior court of Pierce county, to review an order adjudging an alley necessary in the town of Buckley. Order affirmed.

H. W. Lueders, for relators. W. B. Osbourne, for respondents.

MOUNT, C. J. Certiorari to review an order of the trial court in condemnation, adjudging an alley necessary for a public use in the town of Buckley, and ordering a jury to assess the damages for the taking thereof. The town of Buckley is a municipal corporation of the fourth class. Block 2 of Spaulding's addition in said town is one of the principal blocks in said town. This block is composed of several lots, but contains no public alley. There are eight lots 110 feet deep by 40 feet wide, facing Main street. This block is 280 feet wide. On June 9, 1906, several persons, being the owners of 164 feet of the lots facing.on Main street, petitioned the city council of said town to open an alley 10 feet wide across said block 2 at the rear of the lots facing on Main street for the purpose of laying a sewer along said alley to the rear of the buildings located upon all of said lots. When the petition was filed. notice of its consideration to be held on February 7, 1900. was duly published. the time set for the hearing of the petition. objections were made by the relators herein, but the council, upon a vote by ayes and noes, granted the petition, and the following was entered upon the minutes of the council: "On motion, petition granted, and streets and alleys committee and clerk were instructed to obtain title to the necessary right of way." Thereafter, on March 7, 1906, the town council further considered the opening of the alley, and ordered the city attorney to begin condemnation proceedings against all property owners who had not agreed to deed to the city lands for the alley. The record of the city council is as follows: "It was moved and seconded that W. B. Osbourne be instructed to institute condemnation proceed

At

ings against all of said property owners in proposed alley, that said streets and alleys committee are unable to arrange terms with." This motion was carried by a unanimous vote by ayes and noes, by all members of the council except one who was absent. Thereafter, on March 11, 1906, the city attorney brought an action in the name of the city to condemn the property necessary to complete the alley. The relators, having been served with summons, appeared and objected to the jurisdiction of the court, on the ground that the city had no power to exercise the right of eminent domain, and because the city had not authorized the proceedings by resolution or otherwise. These objections being overruled, a demurrer was filed substantially upon the same grounds. The demurrer being overruled, relators filed an answer denying all the allegations of the petition and alleging the existence of an alley near the one sought to be condemned. At the trial evidence was introduced showing the necessity and public use for the alley. Findings and a judgment were entered accordingly, and a jury was ordered to assess the damages. The relators thereupon sued out this writ. Other facts necessary to an understanding of the questions involved will be stated hereafter.

It is first contended by the relators that the court was without jurisdiction, because the city had not passed an ordinance or resolution establishing the alley, and it is claimed that the order of February 7th was neither an ordinance or a resolution. It is true that the order is not in form an ordinance, nor does it contain the word "resolved," but it is nevertheless an order of the city adopted with all the formality required for the passage of an ordinance or a resolution. It is in effect a resolution. 21 Am. & Eng. Enc. of Law (2d Ed.) p. 247. A petition was filed, praying for the establishment of an alley, designating its location and size. Proper notice was given, and the city, upon motion, granted the petition. The statute gives cities of the fourth-class power to establish and lay out alleys. Section 1011, 1 Ballinger's Ann. Codes & St. There is no provision that such orders shall be by ordinance. A resolution or motion amounting to a resolution was therefore sufficient.

Relators next contend that the city was without power to condemn, because no procedure therefor has been provided. It is conceded that the act of 1893, Laws of 1893, p. 135, c. 62, provides that the procedure for condemnation by cities of the fourth class shall be in the manner provided by the act relating to the appropriation of land by corporations. But it is contended that this act is unconstitutional, because it is in substance an amendment of section 1017, 1 Ballinger's Ann. Codes & St., and does not set out the section as it would read as amended. But the act of 1893 is not, and does not purport to be, an amendment of any other section of

the law. It is an independent act, and the criticism of the relators is therefore entirely without merit.

It is also contended that the act empowers cities to condemn for "public corporate uses," and that this clause does not include a street or alley to be used by the public, but only includes property sought to be used by the corporation itself, such as sites for fire engines, city halls, and the like. But we are of the opinion that this clause means any public corporate use such as a city needs for the public or for itself, and includes streets and alleys within its borders necessary for the use of its inhabitants. It is also contended that the act has been superseded by subsequent legislation, but the acts referred to in the briefs as superseding the act in question have no reference to the act under consideration, but are amendments of sections of other acts entirely independent of this one.

It is next contended that the petition is not signed by a majority of the property owners in the district, and that this fact is jurisdictional. It seems that the principal use the petitioners desired for the alley was a sewer which was about to be constructed. The petition upon its face appears to include a majority of the owners of real estate in the proposed district. But, conceding that it does not, the city has authority to open alleys and streets for public use upon its own initiative without a petition therefor. The question presented is therefore not jurisdictional. The fact that the city may intend to use the alley for a public sewer or a street or other public use does not alter the power of the city to condemn.

It is next contended that the court erred in holding that it was not necessary for the city to show that there had been an attempt and failure to agree with the property owners upon the price to be paid for the land which the city desired for the alley. We held in Puyallup v. Lacey (Wash.) 86 Pac. 215, that such fact is not a condition precedent to the institution of proceedings to condemn. Furthermore, the act under which this proceeding was maintained contains no requirement that there should be an attempt to agree. 1 Ballinger's Ann. Codes & St. § 1292.

It is contended that the court erred in holding that the necessity for the alley rested with the city council, and in excluding certain evidence offered by relators, to the effect that, at some prior time, certain persons had reserved for an alleyway portions of the block near the proposed alley, and that therefore there was no necessity for the proposed alley. The page of the record is not pointed out by the briefs, where the court held that the question of necessity rested with the council, and we are unable are unable to find that the court made such ruling. On the other hand, the evidence in the record is conclusive that there was a necessity for the alley, and that the use was a public use,

and the findings made by the court are that the contemplated use is a public use, and that the land sought is required and necessary. When the relators offered certain evidence to the effect that the city had actually used for an alley a portion of the tract of land adjoining the proposed alley, a part of the length thereof, the court refused this evidence. This refusal was no doubt based upon the rule, laid down in Samish River Boom Company v. Union Boom Company, 32 Wash. 586, 73 Pac. 670, that the necessity to be shown is not an absolute necessity, but a reasonable necessity depending upon the circumstances of the case. For instance, if the city had theretofore used a crooked alley, and desired it straightened for convenience of laying sewer pipe or water mains therein, or for the convenience of teams using the alley so that two teams at the same time might not enter in opposite directions, and by reason of the narrowness of the alley become blocked therein, under such circumstances it could not be urged that there was no reasonable necessity for the alley to be made straight. We think the court did not err in rejecting the evidence offered, and finding there was a necessity for the alley as proposed.

The other questions presented need not be further discussed. We find no error in the record. The order made by the trial court is therefore affirmed.

DUNBAR, HADLEY, FULLERTON, and RUDKIN, JJ., concur.

CROW and ROOT, JJ., did not participate.

(48 Or. 475)

Appeal from Circuit Court, Multnomah County; M. C. George, Judge.

Action by W. C. Puffer and another against the American Central Insurance Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Milton W. Smith, for appellant. Harrison G. Platt, for respondents.

BEAN, C. J. This is an action at law to recover money. After the issues had been made up, it was referred to a referee to "make and report findings of fact and conclusions of law," because the trial would involve the examination of a long account on both sides. The evidence was taken by the referee, but he failed or neglected to make and report any findings of fact or conclusions. of law, and some three years after his appointment he was ordered by the court, on plaintiff's motion, without notice to the defendant, to return the record, including the testimony taken before him, which was done accordingly. The court thereupon, against the protest of the defendant, and over its objection and exception, proceeded to a trial of the cause without the intervention of a jury. Findings and judgment were made and rendered in favor of the plaintiff, and defendant appeals.

A trial judge has no authority to act as a referee in a law action without the consent of parties (Dinsmore v. Smith, 17 Wis. 20); nor to try such an action unless a jury is waived in the manner provided by statute (American Mortgage Co. v. IIutchinson, 19 Or. 334, 24 Pac. 515; Wilkes v. Cornelius, 21 Or. 345, 23 Pac. 473). The Constitution guaranties to every suitor in a law action the

INS. CO.

(Supreme Court of Oregon. Nov. 21, 1906.) 1. REFERENCE-TRIAL JUDGE - ACT AS REFEREE-AUTHORITY.

A trial judge has no authority to act as referee in a law action without the consent of the parties.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Reference, § 65.]

2. JURY-WAIVER.

A judge has no authority to try a law action unless a jury is waived, as provided by statute.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 31, Jury, §§ 27-34.]

3. REFERENCE-REPORT OF REFEREE-DELAY

REMEDIES.

Where a referee unreasonably delayed his report in an action at law, the court, though entitled to direct him to speed the case and enforce such order, could not lawfully deprive the parties of the right to have findings made by a trior of the facts, and to the presumptions attaching to such findings, by directing the referee to return the testimony taken before him, and proceed to a trial of the case on such testimony, without the intervention of a jury, over the objection and exception of one of the parties.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Reference, §§ 117, 118; vol. 31, Jury, §§ 204-215.]

deprived of this right by the court on its own motion, or that of his adversary, unless the issues involve the examination of a long account. In the latter case an action may be referred to a referee, "to hear and decide the whole issue. or to report upon any specific question of fact involved therein" (B. & C. Comp. § 161); but in such case the conclusions of the referee are to be deemed and considered as a verdict of a jury (Id. § 168). A litigant in a law action, therefore, is entitled, as a matter of right, to have the facts determined by a jury, or, if the cause is referable, the conclusions of a trior of facts. whose findings shall have the same force and effect. The court may set aside the findings of a referee, and order a new reference, or find the facts and law itself, but it can only do so under the same circumstances in which it has authority to set aside the verdict of a jury (Merchants' National Bank v. Pope, 19 Or. 35, 26 Pac. 622; Liebe v. Nicolai, 30 Or. 372, 48 Pac. 172); and where the evidence is conflicting, and the credibility of witnesses is involved, the referee's findings of fact will ordinarily not be disturbed unless palpably wrong (17 Enc. Pl. & Pr. 1055). The verdict