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cution' docket. Much of the argument of ment creditors of the benefit of the lien for the respective parties has been directed to the costs incident to their judgment. That the interpretation of this section. This ar- a plaintiff may obtain a valid judgment, the gument has been founded, not only upon the principal sum of which will be collectible by language of the section, but also upon that process of law, although there has never been of other sections relating to the same subject, any adjudication as to the amount of costs to and the history of legislation relating to which he is entitled, is too clear to require judgment liens has been discussed at length. argument; and, if the judgment itself will We shall not find it necessary to follow the be valid without any adjudication as to costs, course of this argument, since the statute, the lien thereof must of necessity be created as we understand it, even if the contention by a transcript in which the costs are not of the appellant as to its interpretation made to appear. The plaintiff in any case should prevail. was fully complied with may waive the right to have the costs inciwhen the transcript of the judgment itself dent to his judgment, and such waiver on was filed with the auditor. All that is re- his part would not destroy his right to have quired by the statute is that the transcript his judgment collected, nor, in our opinion, filed shall contain the information imparted would it deprive him of the right to have it by the execution docket in the clerk's office; 1. made a lien by the filing of a transcript and since such information must be obtained thereof with the auditor. The object of the by the clerk from a judgment of record in record in the auditor's office is to give notice liis court, or from transcripts of judgments to those dealing with the property of the of other courts, and since he has no super ior fact of the rendition of the judgment, the facilities for obtaining information from parties thereto, and the amount thereof; such judgments or transcripts over that of and, if no notice is given as to the amount of any person to whom they are presented, it the costs, it will follow that as to that portioa must follow that the filing of a transcript of of the judgment, or that amount which is the judgment itself conveys all the informa- incident to the judgment, the notice required tion to one who is bound to take notice of by the statute has not been given. But it what is filed that the filing of a transcript does not follow that the notice as to the of the execution docket would furnish. The principal sum is not just as complete as it execution docket is made up of facts ap- would have been if supplemented by a statepearing from the judgment or transcript, ment as to costs. The trial court held that and for that reason can furnish no informa- these judgment creditors had no lien for tion not therein contained; so that the ab- costs, but that they did have as to the prin: stract which the appellant contends should cipal, and in so doing correctly interpreted have been filed not only gives no more infor- what was done, and the statutes relating mation than would the transcript of the thereto. The same course of reasoning will Judgment itself, but, for the reason that the result in affirming the action of the court as greater includes the lesser, must give less to the other defendants. information. Hence, if the transcript fr A question of costs on appeal is raised by the execution docket for which he contends the respondent Friedman. By the judgment would have furnished proper notice, the one of the trial court his lien was held to be actually filed furnished such notice, and subsequent to that of the appellant. He more.

was, however, served by the appellant with It is also contended that the names of the a copy of the notice of appeal, and has apparties to the judgment did not appear at peared and filed a brief, in which he sets length in the transcript filed with the audi- up the facts as to the issues in the trial tor, and that for that reason it was insuffi- court having been decided in favor of the cient. In our opinion, the provision as to plaintiff, and asks that the appeal be disthe names appearing at length in the state- missed, as to him, with costs. In our opinment or transcript only requires that there ion no such costs can be allowed. Under should be no abbreviation of the names of the statute it was necessary for the plainthe parties shown by the judgment entry; tiff to serve a copy of the notice of appeal that it has no reference to the full Christian upon all who had appeared in the action, or other names of the parties, but only to whether the issues tried had been determintheir names as set out in the judgment; ed for or against them. The service of such that if the names are therein so set out that notice upon one situated as was the defendthe judginent is a valid one the names set ant Friedman required no action on

his out in the same manner in the transcript will part unless he desired to join in the appeal give proper notice.

and seek a reversal of the judgment of the It is, further objected that the particular trial court as to him. The judgment will transcript in question was insufficient for in all things be affirmed. The respondents the reason that the amount of costs to which who succeeded in the court below will rethe plaintiff was entitled was not made to cover costs on appeal. appear therefrom. The only effect that could be wrought by the failure to give this DUNBAR, ANDERS, and GORDON, JJ., information would be to deprive the judg. concur.

a

(11 Wash. 227)

praisement; and that, pursuant to the orders STATÉ ex rel. MCKENZIE et al. v. FOR- of the state board of equalization and appeal,

REST, Commissioner of Public Lands. the respondent, as such commissioner, has is(Supreme Court of Washington. Feb. 19, sued certificates of purchase for portions of 1895.)

said last-mentioned area, and many deeds TIDE AND SHORE LANDS--SALE BY LAND Cox have been issued by the state covering such MISSIONER-CONSTRUCTION OF ACT.

last-mentioned area; this being especially The words “tide and shore lands" used

true in Whatcom county. It is also agreed in 1 Hill's Code, § 2162, providing that such

that said map also shows streets crossing lands shall be appraised, and that such as are not specially reserved from sale shall be disposed of said last-mentioned area, both at right angles by the land commissioner, as applied to section to and parallel to the inner harbor line. The 2165, dividing the tide lands of the state into

act in question (1 Hill's Code, $ 2162) provides classes, and providing that the first class shall embrace "tide lands” in front of the corporate

that the tide and shore lands in the state of limits of any city or within two miles thereof Washington shall be appraised, and those on either side, are not limited in meaning to

which are not reserved from sale by the conthe strip between high and low tide lines, but re

stitution and laws of the state shall be disfer to the lands between high-tide line and the inner line of the harbor reserve.

posed of by the commissioner. The act (secPetition by Angus McKenzie and Timothy. tion 2165) also provides: "For the purpose of Glinn for a writ of mandate to compel W. T.

survey and appraisal the tide lands of the Forrest, commissioner of public lands, to is

state of Washington are hereby divided into

three classes. The first class shall embrace sue deeds to tide lands. Granted.

all tide lands situated within or in front of Newman & Howard, for petitioners. James

the corporate limits of any city, or within A. Haight, Asst. Atty. Gen., for respondent.

two miles thereof upon either side. The sec

ond class shall embrace all tide lands situSCOTT, J. This is an application for a ated at a greater distance than two miles from writ of mandate against the respondent, as either side of an incorporated city or town, commissioner of public lands, to compel him and upon which are located valuable imto issue a deed to the relators of lots 57 and provements. The third class shall embrace 58 in front of the city of Fairhaven, under all other tide lands.” The controversy here the act relating to the sale of tide lands. is as to the meaning of the term “tide and The case is submitted upon an agreed state- shore lands," used in said act, as applied to ment of facts, whereby it appears that the tide lands of the first class. The relators relators have proven every essential fact by claim that the act authorizes the .sale by them to be proved, and have performed er- the state of the beds of all such waters as lie ery condition precedent, including a tender between the line of ordinary high tide (or of the purchase price of said lots, to entitle the patent line, where the same is below such them to purchase under their application, but high-tide line) and the inner harbor line, that the respondent refuses to issue a deed irrespective of the location of the line of orto said lots on the ground that the same are dinary low tide. The decisions upon this subnot tide lands, and that the relators are not ject are few in number, and the relators cite entitled to purchase them under the act afore- no case where it has been held that the said.

tern "tide. lands" covers any land below It is conceded that said lots lie between the ordinary low tide. Respondent insists that line of ordinary low tide and the inner har- said act only provides for the sale by the bor line in front of said city, and that they state of such portion of the beds of such nariare bounded upon the easterly side by the gable waters as lies between the lines of orline of ordinary low tide in the waters of dinary low and high tide, and does not auBellingham Bay, in front of said incorporated thorize the sale of any portion of the beds of city of Fairhaven, and upon the westerly such navigable waters as lie below the line side by the inner harbor line in front of said of ordinary low tide, as the same are not city. It is further agreed that the Whatcom included within the term “tide and shore county tide land appraisers' map of tide lands lands." The contention of the respondent is lying in front of said city of Fairhaven, and supported by the case of People v. Davidson, also such appraisers' map of tide lands lying 30 Cal. 379, and several cases from other in front of the cities of New Whatcom and states following that decision. The respondBlaine, in said county, and the appraisers' ent also claims that the legislature has conmap of the tide lands lying in front of the strued the term “tide lands" to mean lands several cities of other counties in this state, over which the tide ebbs and flows, and include, return, and appraise as tide lands which are bare at low tide. Section 6 of an the area lying between the patent line or line act found on page 731 of the Session Laws of ordinary high tide and the inner harbor of 1890 does contain such definition, but it is line, irrespective of the location of the line of limited to the term as used in said act. It ordinary low tide; and that the area lying further appears that in that act, notwithbelow the low-tide line and out to the inner standing the definition aforesaid, the term harbor line, where such low-tide line lies “tide lands" is used in a broader sense than between such inner harbor line and the high- is warranted by such definition. The title of tide line, is included in said return and ap- said act and section 1 thereof clearly set forth that the purpose and object of the act “Sec. 3. Municipal corporations shall have is to establish water ways across the tide the right to extend their streets over interflats, and nowhere else. Section 2 provides vening tide lands to and across the area rethat “the public ways provided for in sec- served as herein provided.” This space betion one of this act shall nct be less than tween the harbor reserve and the high-tide fifty nor more than one thousand feet wide, line must be considered as "intervening tide and shall commence at the outer or deeper lands," irrespective of the location of the water end, in not less than twenty feet of wa- low-tide line, or, where the low-tide line inter at low tide, and shall extend inland tervenes between the inner harbor line and across the state's tide lands.” It seems that the high-tide line, the right to extend streets, the only purpose of the definition contained it would seem, must end with the low-tide in said act was to make it clear that the wa- line; for the easement or grant is only over ter way should extend up to the line of or- “tide lands," and, if tide lands end at the dinary high tide. It is not very material in low-tide line, streets must also end there. It this controversy, however, what the meaning may be contended that the grant is also of the term “tide lands” in the act referred "to and across" the harbor reserve, and thereto is, nor what is the common-law meaning fore the right to extend streets exists, though of such term. The point to be determined is they may in part pass over tide waters, and in what sense the legislature used said term not tide lands. But this court has held, in in the tide-land act when applied to tide the case of Columbia & P. S. R. Co. v. City lands of the first class. In construing stat- of Seattle, 6 Wash. 332, 33 Pac. 824, and 34 utes, the particular inquiry is not what is Pac. 725, that by virtue of this constitutional the abstract force of words or terms used, or provision, aided by the act of Feb. 28, 1890 what they may comprehend, but is in what (Sess. Laws, 1890, p. 733), cities may extend sense they were intended to be used. Suth.

existing streets paralleling the harbor reSť. Const. $$ 245, 246.

serve; and if such street should be located From an examination of the constitution below the low-tide line, and tide lands are and legislation of the state it will be seen only such as lie above low-tide line, then that the term “tide lands" has frequently such street does not pass over "intervening been used in a broader sense than its literal tide lands," and has no constitutional grant meaning, which must be conceded to be on which to stand, for that confers only a those lands over which the tide ebbs and grant over "tide lands." There is no good flows, and which are bare at low tide, and ground for believing that there was any inthat such term has been used to embrace tention to so limit the grant in the constituand include the beds of navigable salt waters tion. In that case the street in controversy lying below the line of ordinary low tide. was, for the greater portion of its length, Sess. Laws 1890, p. 428, contains an act en- over the tide waters below the low-tide line. titled, “An act granting to the United States, This court in that case, and in a number of for public purposes, the use of certain tide others where tide lands were under considerlands belonging to the state of Washing- ation, did not confine such term to the narton." This act proceeds to grant to the Unit- row and literal meaning contended for by ed States tide lands so long as the United the respondent, and which, no doubt, it States continues to own the land adjoining should receive generally where it is not afsuch tide lands, but provides that “this grant fected by the context of the act, the object shall not extend to or include any lands cov- of its enactment, or the system or plan with ered by more than four fathoms of water at which it is dealing. Const. art. 17, § 1, ordinary low tide," and, further, that “when- also states: “The state of Washington asever the government of the United States serts its ownership to the beds and shores shall cease to hold for public purposes any of all navigable waters in the state up to such tract, piece or parcel of land, the use and including the line of ordinary high tide.” of the tide lands bordering thereon shall re- This assertion embraces a claim of title exvert to the state of Washington." The only tending below the low-tide line. Section 2 of things designated as granted by this act said article, however, only disclaims title to are tide lands, but it is provided that the tide, swamp, and overflowed lands. The term same may include lands covered by not more “swamp and overflowed lands" is used in than four fathoms of water at ordinary low contradistinction to "tide lands." Hence, in tide. In this act the legislature certainly salt waters “tide lands" for which patents used the term "tide lands" in a sense broad- have been given are the only lands to which er than its literal meaning, and as including title is disclaimed. Therefore, if "tide lands the beds of navigable waters below the low- are only such as lie above low-tide line, even tide line. This act was approved March 20, though the calls of the patent extended below 1890, six days previous to the tide-land act such line, title would not be disclaimed. But before us. The term “tide and shore lands" this court has held that this disclaimer of was also used in a similar sense in an act ap- title is as broad as the claim of title in secproved March 9, 1893. See Laws 1893, p. tion 1, supra. Scurry v. Jones, 4 Wash. 468, 241 88 1, 2, 9. Const. art. 15, refers to the 30 Pac. 726. Again, Const, art. 27, § 2, after area lying between the harbor reserve and continuing territorial laws in force, adds this the high-tide line as “intervening tide lands”: | provision: "Provided that this section shall not be so construed as to validate any act which the state owns lying below high-water of the legislature of Washington Territory mark, and that by said act provision was granting shore or tide lands to any person,

made for the sale of all such lands as were company or any municipal or private corpo- | not expressly, by the constitution and laws ration." It will not be contended that, if the of the state, reserved from sale; the reserterritorial legislature had granted a portion vation contemplated being the area within of the beds of tide waters lying below the the harbor reserve, streets, water ways, gov. low-tide line, such grant is not within the ernment grants, and such lands as have been scope and intent of this proviso because it patented by the United States. This act was not a grant of "shore or tide lands," as was passed after a committee of the leg. such term is generally construed. This court islature had personally inspected nearly in the case of Eisenbach v. Hatfield, 2 Wash. every harbor in the state, and the legisla236, 26 Pac. 539, took it for granted that this ture could not have been unmindful of the proviso, notwithstanding its language deals fact that the harbor reserve must in many only with shore and tide lands, is as broad cases be located considerably below the line as the claim of title to the beds and shores, of low tide, and that within that area many etc., asserted in article 17, § 1, supra. This valuable improvements have been erected, court also said in the case of Globe Mill Co and the right to purchase the ground beV. Bellingham Bay Imp. Co. (Wash.) 38 Pac. neath these was doubtless intended to be 1112, that the constitution (article 15, § 3) granted thereby. Certainly, had the legisla“confers upon municipal corporations the ab- ture intended to reserve from sale all areas solute right to extend their streets over tide lying between the low-tide line and the inner lands intervening between the upland and harbor line in front of incorporated cities, the harbor area,” and “that the legislature, it would have provided therefor in clear and in proposing to dispose of the inner harbor express language. There is no reason for lands' under the provisions of the constitu- believing the legislature intended to reserve tion in regard to harbor areas, acted on the from sale an irregular, uncertain strip lying supposition that all these tide lands are, in between the low-tide line and the inner harcourse of time, to be converted into solid bor line. The contrary is clearly apparent, lands." And, if this were so, it must have and such an intent could only be made to meant that the same were to be extended to appear by giving a literal and technical conthe inner harbor line, and not to the more struction to the words “tide and shore lands." or less uncertain, irregular, and shifting low- This would defeat the scheme of the state in tide line, thereby, in many instances, leaving the development and improvement of its an irregular space between said low-tide line harbors, retard commercial advancement, and the inner harbor line, varying from a

and force a condition of affairs never confew inches to many rods, as the case might templated by the constitution or intended be.

by the legislature. A construction which The foregoing is sufficient to show that the must necessarily occasion great public and term “tide and shore lands” has frequently private mischief must never be preferred to been used in the constitution and laws of a construction which will occasion neither, this state, and referred to in the decisions or not in so great a degree, unless the terms of this court, as capable of having a broader of the instrument absolutely require such meaning than the one contended for by the preference. Suth. St. Const. § 3:23. Statutes respondent. If the term “tide lands" can will be construed in the most beneficial way be construed as broad enough to carry a

which their language will permit, to prevent grant to the United States to lands covered absurdity, hardship, or injustice, to favor by not exceeding four fathoms of water at public convenience, and to oppose all prej. low tide, and to embrace in the disclaimer udice to public interests. Id. $ 324. clause of the constitution land below the The argument and contentions of the relow-water mark; and is broad enough to lators, which we have largely set forth here. annul any grant of the territorial legisla- in, should be sustained, even though the ture of lands below low-water mark; and term in question must receive a different if the term "intervening tide lands” is broad and more limited meaning as to tide lands enough to permit cities to extend streets be- of the third class. We are of the opinion low the low-tide line-certainly the term that said act, as to tide lands of the first "tide and shore lands" is broad enough to class, when construed in the light of the include "intervening tide lands," or lands, policy of the state with reference to its harwhich the state owns by reason of its sov- bors, is capable of being, and should be, ereignty, lying between high-tide line and construed as if it had incorporated therein the inner harbor reserve. Construing the a proviso to the effect that as to tide lands act relating to the sale of tide lands in the of the first class the same should extend to light of the constitution and existing leg- the inner harbor line, and that by the esislation and the peculiar harbor policy of tablishment of harbor reserves the line of the state, it is apparent that the term “tide low tide is arbitrarily fixed as coincident and shore lands"-at least as to tide lands with the inner harbor line, and that all lands of the first class-was used therein in its lying within such inner harbor line and generic sense, as embracing those lands the high-tide line were fairly designated as

JJ.,

"intervening tide lands." This contention of timber, but alleging that it was so cut and will harmonize said act with the constitu- removed by them under a license from plaintion, and will be consonant with the policy tiffs, and by an agreement between the plainof the state as to preserving and improving tiffs and themselves that the defendants its harbors (1 Hill's Code, & 2125 et seq.), and were to pay plaintiffs for said timber at a will establish an orderly and uniform plan certain price, to wit, 50 cents per 1,000 feet. and system of dealing with these lands; and They also allege a further agreement, made the other construction would create infinite after the cutting of the timber, that the confusion and disorder. We are of the opin- price of the timber taken should be $784, to ion that the writ should issue.

be paid in cedar logs; and that afterwards,

pursuant to said agreement, defendants deHOYT, C. J., and ANDERS and GORDON, livered to plaintiffs a certain number of logs concur.

reasonably worth $146.25, afterwards refusing to receive the remainder of the logs. The

reply of the plaintiffs denied the license or (11 Wash. 348)

authorization of any kind, or that there was GUSTIN et al, V. JOSE et al.

any contract as to value, or that they had (Supreme Court of Washington. March 7, ever agreed to or had received any cedar or 1895.)

any logs in payment of their demand. So TRESPASS TO LAND -- CuttixG TIMBER — MEASURE

upon this issue the case went to trial. OF DAMAGES-HARMLESS ERROR-OB

There are, however, two exceptions which JECTIONS TO EVIDENCE. 1. A plat of land is not necessarily inadmis

we think should be especially noticed. Dursible because not made by a civil engineer. ing the testimony of witness Guilfoil, a cer

2. Where the only objection made to the ad- tain plat of the land from which it was almission of a map was based on the incompe

leged the timber was taken was introduced tency of the person who made it, it cannot be contended on appeal that it was inadmissible be- by the plaintiffs, and its introduction was cause of extraneous matter on its face.

objected to by the defendants. It is claim3. In an action for the wrongful cutting of

ed here in the argument of the case that this timber on plaintiff's land, an instruction that "the measure of damages would be the value of

plat was objectionable, from the fact that, the trees or timber standing on the lands, and in addition to the description of the land, the diminished value of the land, if any, by the number of trees that were alleged to reason of their having been cut," and "that if,

have been taken was marked on the plat, by reason of the cutting" of the trees, “plaintiffs have suffered damages to their freehold, other and also the computation of the number of than the market value of the trees," "then you feet cut by the defendants. This is the obshould render a verdict for plaintiff equal to such

jection, and all the objection, that is raised damages, in addition to such market value of the trees,” is erroneous. Dunbar, J., dissenting.

in this court to the admission of this plat. 4. Where the verdict shows that the jury The plat, we think, was evidently objectiondid not take into consideration any injury to the able; and had it been admitted over the obfreehold, such error is unprejudicial, and there

jections of the appellants, for the reasons fore not ground for reversal. Hoyt, C. J., dissenting.

urged here, it would warrant a reversal of

this case. But an investigation of the recAppeal from superior court, King county;

ord shows that the objection to the admisR. Osborn, Judge.

sion of the plat was not to the plat itself, Action by Samuel D. Gustin and others

but to the competency of the person offering against Thomas Jose and another. There

it to make the same. After the witness had was a judgment for plaintiffs, and defend

testified that he had made a rough plat of ants appeal. Affirmed.

the land described in the complaint, the C. W. Turner, for appellants. John G. plaintiff's then offered the plat in evidence, Barnes, for respondents.

and the following colloquy ensued: "Mr.

Turner (appellants' attorney): Mr. Guilfoil, DUNBAR, J. This is an action brought you say that you have been a contractor by the respondents for damages for the un- and logger for the past four and a half authorized and unlawful cutting of timber years? Ans. I have been a logger for the by the appellants off land alleged to be the past four and a half years; previous to that land of respondents. The latter recovered time, a railroad contractor. Q. Are you a judgment for the sum of $1,748.42, from civil engineer by profession? A. No, sir. which judgment the appeal is taken to this Mr. Turner: I object to the introduction of court.

this plat. Mr. Barnes: You say you made Under the pleadings in this case, many of it? Witness: Yes, sir. Q. You made the the exceptions taken seem to us to be taken survey yourself? A. Yes, sir. The court: entirely without warrant of law or reason. Objection overruled. The plat received in The proof of ownership of the land was am- evidence." So that it will be seen that the ple, and the testimony rightly admitted. | objectionable features in the plat were never The fact is that the only material issue in called to the attention of the court. The this case was the value of the property tak- court had no occasion to examine the plat en; the defendants admitting in their answer at all, and did not do so, so far as this record that they cut and removed from the land indicates; the only question being as to the described in the complaint a certain amount competency of the witness to make the plat.

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