cution docket.

Much of the argument of

the respective parties has been directed to the interpretation of this section. This argument has been founded, not only upon the language of the section, but also upon that of other sections relating to the same subject, and the history of legislation relating to judgment liens has been discussed at length. We shall not find it necessary to follow the course of this argument, since the statute, as we understand it, even if the contention of the appellant as to its interpretation should prevail. was fully complied with when the transcript of the judgment itself was filed with the auditor. All that is required by the statute is that the transcript filed shall contain the information imparted by the execution docket in the clerk's office; and since such information must be obtained by the clerk from a judgment of record in his court, or from transcripts of judgments of other courts, and since he has no superior facilities for obtaining information from such judgments or transcripts over that of any person to whom they are presented, it must follow that the filing of a transcript of the judgment itself conveys all the information to one who is bound to take notice of what is filed that the filing of a transcript of the execution docket would furnish. The execution docket is made up of facts appearing from the judgment or transcript, and for that reason can furnish no information not therein contained; so that the abstract which the appellant contends should have been filed not only gives no more information than would the transcript of the judgment itself, but, for the reason that the greater includes the lesser, must give less information. Hence, if the transcript from the execution docket for which he contends would have furnished proper notice, the one actually filed furnished such notice, and

more.

It is also contended that the names of the parties to the judgment did not appear at length in the transcript filed with the auditor, and that for that reason it was insufficient. In our opinion, the provision as to the names appearing at length in the statement or transcript only requires that there should be no abbreviation of the names of the parties shown by the judgment entry; that it has no reference to the full Christian or other names of the parties, but only to their names as set out in the judgment; that if the names are therein so set out that the judgment is a valid one the names set out in the same manner in the transcript will give proper notice.

It is, further objected that the particular transcript in question was insufficient for the reason that the amount of costs to which the plaintiff was entitled was not made to appear therefrom. The only effect that could be wrought by the failure to give this information would be to deprive the judg

ment creditors of the benefit of the lien for the costs incident to their judgment. That a plaintiff may obtain a valid judgment, the principal sum of which will be collectible by process of law, although there has never been any adjudication as to the amount of costs to which he is entitled, is too clear to require argument; and, if the judgment itself will be valid without any adjudication as to costs, the lien thereof must of necessity be created by a transcript in which the costs are not made to appear. The plaintiff in any case may waive the right to have the costs incident to his judgment, and such waiver on his part would not destroy his right to have his judgment collected, nor, in our opinion, would it deprive him of the right to have it .made a lien by the filing of a transcript thereof with the auditor. The object of the record in the auditor's office is to give notice to those dealing with the property of the fact of the rendition of the judgment, the parties thereto, and the amount thereof; and, if no notice is given as to the amount of the costs, it will follow that as to that portion of the judgment, or that amount which is incident to the judgment, the notice required by the statute has not been given. But it does not follow that the notice as to the principal sum is not just as complete as it would have been if supplemented by a statement as to costs. The trial court held that these judgment creditors had no lien for costs, but that they did have as to the principal, and in so doing correctly interpreted what was done, and the statutes relating thereto. The same course of reasoning will result in affirming the action of the court as to the other defendants.

A question of costs on appeal is raised by the respondent Friedman. By the judgment of the trial court his lien was held to be subsequent to that of the appellant. He was, however, served by the appellant with a copy of the notice of appeal, and has appeared and filed a brief, in which he sets up the facts as to the issues in the trial court having been decided in favor of the plaintiff, and asks that the appeal be dismissed, as to him, with costs. In our opinion no such costs can be allowed. Under the statute it was necessary for the plaintiff to serve a copy of the notice of appeal upon all who had appeared in the action, whether the issues tried had been determined for or against them. The service of such notice upon one situated as was the defendant Friedman required no action on his part unless he desired to join in the appeal and seek a reversal of the judgment of the trial court as to him. The judgment will in all things be affirmed. The respondents who succeeded in the court below will recover costs on appeal.

DUNBAR, ANDERS, and GORDON, JJ.,

concur.

(11 Wash. 227) STATE ex rel. MCKENZIE et al. v. FORREST, Commissioner of Public Lands. (Supreme Court of Washington. Feb. 19, 1895.)

TIDE AND SHORE LANDS-SALE BY LAND CON MISSIONER-CONSTRUCTION OF ACT.

The words "tide and shore lands" used in 1 Hill's Code, § 2162, providing that such lands shall be appraised, and that such as are not specially reserved from sale shall be disposed of by the land commissioner, as applied to section 2165, dividing the tide lands of the state into classes, and providing that the first class shall embrace "tide lands" in front of the corporate limits of any city or within two miles thereof on either side, are not limited in meaning to the strip between high and low tide lines, but refer to the lands between high-tide line and the inner line of the harbor reserve.

Petition by Angus McKenzie and Timothy Glinn for a writ of mandate to compel W. T. Forrest, commissioner of public lands, to issue deeds to tide lands. Granted.

Newman & Howard, for petitioners. James A. Haight, Asst. Atty. Gen., for respondent.

SCOTT, J. This is an application for a writ of mandate against the respondent, as commissioner of public lands, to compel him to issue a deed to the relators of lots 57 and 58 in front of the city of Fairhaven, under the act relating to the sale of tide lands. The case is submitted upon an agreed statement of facts, whereby it appears that the relators have proven every essential fact by them to be proved, and have performed every condition precedent, including a tender of the purchase price of said lots, to entitle them to purchase under their application, but that the respondent refuses to issue a deed to said lots on the ground that the same are not tide lands, and that the relators are not entitled to purchase them under the act aforesaid.

It is conceded that said lots lie between the line of ordinary low tide and the inner harbor line in front of said city, and that they are bounded upon the easterly side by the line of ordinary low tide in the waters of Bellingham Bay, in front of said incorporated city of Fairhaven, and upon the westerly side by the inner harbor line in front of said city. It is further agreed that the Whatcom. county tide land appraisers' map of tide lands lying in front of said city of Fairhaven, and also such appraisers' map of tide lands lying in front of the cities of New Whatcom and Blaine, in said county, and the appraisers' map of the tide lands lying in front of the several cities of other counties in this state, include, return, and appraise as tide lands the area lying between the patent line or line of ordinary high tide and the inner harbor line, irrespective of the location of the line of ordinary low tide; and that the area lying below the low-tide line and out to the inner harbor line, where such low-tide line lies between such inner harbor line and the hightide line, is included in said return and ap

praisement; and that, pursuant to the orders of the state board of equalization and appeal, the respondent, as such commissioner, has issued certificates of purchase for portions of said last-mentioned area, and many deeds have been issued by the state covering such last-mentioned area; this being especially true in Whatcom county. It is also agreed that said map also shows streets crossing said last-mentioned area, both at right angles to and parallel to the inner harbor line. The act in question (1 Hill's Code, § 2162) provides that the tide and shore lands in the state of Washington shall be appraised, and those which are not reserved from sale by the constitution and laws of the state shall be disposed of by the commissioner. The act (sec

tion 2165) also provides: "For the purpose of survey and appraisal the tide lands of the state of Washington are hereby divided into three classes. The first class shall embrace all tide lands situated within or in front of the corporate limits of any city, or within two miles thereof upon either side. The second class shall embrace all tide lands situated at a greater distance than two miles from either side of an incorporated city or town, and upon which are located valuable improvements. The third class shall embrace all other tide lands." The controversy here is as to the meaning of the term "tide and shore lands," used in said act, as applied to tide lands of the first class. The relators claim that the act authorizes the 'sale by the state of the beds of all such waters as lie between the line of ordinary high tide (or the patent line, where the same is below such high-tide line) and the inner harbor line, irrespective of the location of the line of ordinary low tide. The decisions upon this subject are few in number, and the relators cite no case where it has been held that the term "tide. lands" covers any land below ordinary low tide. Respondent insists that said act only provides for the sale by the state of such portion of the beds of such navigable waters as lies between the lines of ordinary low and high tide, and does not authorize the sale of any portion of the beds of such navigable waters as lie below the line of ordinary low tide, as the same are not included within the term "tide and shore lands." The contention of the respondent is supported by the case of People v. Davidson, 30 Cal. 379, and several cases from other states following that decision. The respondent also claims that the legislature has construed the term "tide lands" to mean lands over which the tide ebbs and flows, and which are bare at low tide. Section 6 of an act found on page 731 of the Session Laws of 1890 does contain such definition, but it is limited to the term as used in said act. It further appears that in that act, notwithstanding the definition aforesaid, the term "tide lands" is used in a broader sense than is warranted by such definition. The title of said act and section 1 thereof clearly set

forth that the purpose and object of the act is to establish water ways across the tide flats, and nowhere else. Section 2 provides that "the public ways provided for in section one of this act shall not be less than fifty nor more than one thousand feet wide, and shall commence at the outer or deeper water end, in not less than twenty feet of water at low tide, and shall extend inland across the state's tide lands." It seems that the only purpose of the definition contained in said act was to make it clear that the water way should extend up to the line of ordinary high tide. It is not very material in this controversy, however, what the meaning of the term "tide lands" in the act referred to is, nor what is the common-law meaning of such term. The point to be determined is in what sense the legislature used said term in the tide-land act when applied to tide lands of the first class. In construing statutes, the particular inquiry is not what is the abstract force of words or terms used, or what they may comprehend, but is in what sense they were intended to be used. Suth. St. Const. §§ 245, 246.

From an examination of the constitution and legislation of the state it will be seen that the term "tide lands" has frequently been used in a broader sense than its literal meaning, which must be conceded to be those lands over which the tide ebbs and flows, and which are bare at low tide, and that such term has been used to embrace and include the beds of navigable salt waters lying below the line of ordinary low tide. Sess. Laws 1890, p. 428, contains an act entitled, "An act granting to the United States, for public purposes, the use of certain tide lands belonging to the state of Washington." This act proceeds to grant to the United States tide lands so long as the United States continues to own the land adjoining such tide lands, but provides that "this grant shall not extend to or include any lands covered by more than four fathoms of water at ordinary low tide," and, further, that "whenever the government of the United States shall cease to hold for public purposes any such tract, piece or parcel of land, the use of the tide lands bordering thereon shall revert to the state of Washington." The only things designated as granted by this act are tide lands, but it is provided that the same may include lands covered by not more than four fathoms of water at ordinary low tide. In this act the legislature certainly used the term "tide lands" in a sense broader than its literal meaning, and as including the beds of navigable waters below the lowtide line. This act was approved March 20, 1890, six days previous to the tide-land act before us.

The term "tide and shore lands" was also used in a similar sense in an act approved March 9, 1893. See Laws 1893, p. 241 §§ 1, 2, 9. Const. art. 15, refers to the area lying between the harbor reserve and the high-tide line as "intervening tide lands":

"Sec. 3. Municipal corporations shall have the right to extend their streets over intervening tide lands to and across the area reserved as herein provided." This space between the harbor reserve and the high-tide line must be considered as "intervening tide lands," irrespective of the location of the low-tide line, or, where the low-tide line intervenes between the inner harbor line and the high-tide line, the right to extend streets, it would seem, must end with the low-tide line; for the easement or grant is only over "tide lands," and, if tide lands end at the low-tide line, streets must also end there. It may be contended that the grant is also "to and across" the harbor reserve, and therefore the right to extend streets exists, though they may in part pass over tide waters, and not tide lands. But this court has held, in the case of Columbia & P. S. R. Co. v. City of Seattle, 6 Wash. 332, 33 Pac. 824, and 34 Pac. 725, that by virtue of this constitutional provision, aided by the act of Feb. 28, 1890 (Sess. Laws, 1890, p. 733), cities may extend existing streets paralleling the harbor reserve; and if such street should be located below the low-tide line, and tide lands are only such as lie above low-tide line, then such street does not pass over "intervening tide lands," and has no constitutional grant on which to stand, for that confers only a grant over "tide lands." There is no good ground for believing that there was any intention to so limit the grant in the constitution. In that case the street in controversy was, for the greater portion of its length, over the tide waters below the low-tide line. This court in that case, and in a number of others where tide lands were under consideration, did not confine such term to the narrow and literal meaning contended for by the respondent, and which, no doubt, it should receive generally where it is not affected by the context of the act, the object of its enactment, or the system or plan with which it is dealing. Const. art. 17, § 1, also states: "The state of Washington asserts its ownership to the beds and shores of all navigable waters in the state up to and including the line of ordinary high tide." This assertion embraces a claim of title extending below the low-tide line. Section 2 of said article, however, only disclaims title to tide, swamp, and overflowed lands. The term "swamp and overflowed lands" is used in contradistinction to "tide lands." Hence, in salt waters "tide lands" for which patents have been given are the only lands to which title is disclaimed. Therefore, if "tide lands" are only such as lie above low-tide line, even though the calls of the patent extended below such line, title would not be disclaimed. But this court has held that this disclaimer of title is as broad as the claim of title in section 1, supra. Scurry v. Jones, 4 Wash. 468, 30 Pac. 726. Again, Const. art. 27, § 2, after continuing territorial laws in force, adds this provision: "Provided that this section shall

not be so construed as to validate any act of the legislature of Washington Territory granting shore or tide lands to any person, company or any municipal or private corporation." It will not be contended that, if the territorial legislature had granted a portion of the beds of tide waters lying below the low-tide line, such grant is not within the scope and intent of this proviso because it was not a grant of "shore or tide lands," as such term is generally construed. This court in the case of Eisenbach v. Hatfield, 2 Wash. 236, 26 Pac. 539, took it for granted that this proviso, notwithstanding its language deals only with shore and tide lands, is as broad as the claim of title to the beds and shores, etc., asserted in article 17, § 1, supra. This court also said in the case of Globe Mill Co v. Bellingham Bay Imp. Co. (Wash.) 38 Pac. 1112, that the constitution (article 15, § 3) "confers upon municipal corporations the absolute right to extend their streets over tide lands intervening between the upland and the harbor area," and "that the legislature, in proposing to dispose of the inner harbor lands' under the provisions of the constitution in regard to harbor areas, acted on the supposition that all these tide lands are, in course of time, to be converted into solid lands." And, if this were so, it must have meant that the same were to be extended to the inner harbor line, and not to the more or less uncertain, irregular, and shifting lowtide line, thereby, in many instances, leaving an irregular space between said low-tide line and the inner harbor line, varying from a few inches to many rods, as the case might be.

The foregoing is sufficient to show that the term "tide and shore lands" has frequently been used in the constitution and laws of this state, and referred to in the decisions of this court, as capable of having a broader meaning than the one contended for by the respondent. If the term "tide lands" can be construed as broad enough to carry a grant to the United States to lands covered by not exceeding four fathoms of water at low tide, and to embrace in the disclaimer clause of the constitution land below the low-water mark; and is broad enough to annul any grant of the territorial legislature of lands below low-water mark; and if the term "intervening tide lands" is broad enough to permit cities to extend streets below the low-tide line,-certainly the term "tide and shore lands" is broad enough to include "intervening tide lands," or lands, which the state owns by reason of its sovereignty, lying between high-tide line and the inner harbor reserve. Construing the act relating to the sale of tide lands in the light of the constitution and existing legislation and the peculiar harbor policy of the state, it is apparent that the term "tide and shore lands"-at least as to tide lands of the first class-was used therein in its generic sense, as embracing those lands

which the state owns lying below high-water mark, and that by said act provision was made for the sale of all such lands as were not expressly, by the constitution and laws of the state, reserved from sale; the reservation contemplated being the area within the harbor reserve, streets, water ways, gov. ernment grants, and such lands as have been patented by the United States. This act was passed after a committee of the leg. islature had personally inspected nearly every harbor in the state, and the legislature could not have been unmindful of the fact that the harbor reserve must in many cases be located considerably below the line of low tide, and that within that area many valuable improvements have been erected, and the right to purchase the ground beneath these was doubtless intended to be granted thereby. Certainly, had the legislature intended to reserve from sale all areas lying between the low-tide line and the inner harbor line in front of incorporated cities, it would have provided therefor in clear and express language. There is no reason for believing the legislature intended to reserve from sale an irregular, uncertain strip lying between the low-tide line and the inner harbor line. The contrary is clearly apparent, and such an intent could only be made to appear by giving a literal and technical construction to the words "tide and shore lands." This would defeat the scheme of the state in the development and improvement of its harbors, retard commercial advancement, and force a condition of affairs never contemplated by the constitution or intended by the legislature. A construction which must necessarily occasion great public and private mischief must never be preferred to a construction which will occasion neither, or not in so great a degree, unless the terms of the instrument absolutely require such preference. Suth. St. Const. § 323. Statutes will be construed in the most beneficial way which their language will permit, to prevent absurdity, hardship, or injustice, to favor public convenience, and to oppose all prejudice to public interests. Id. § 324.

The argument and contentions of the relators, which we have largely set forth herein, should be sustained, even though the term in question must receive a different and more limited meaning as to tide lands of the third class. We are of the opinion that said act, as to tide lands of the first class, when construed in the light of the policy of the state with reference to its harbors, is capable of being, and should be, construed as if it had incorporated therein a proviso to the effect that as to tide lands of the first class the same should extend to the inner harbor line, and that by the establishment of harbor reserves the line of low tide is arbitrarily fixed as coincident with the inner harbor line, and that all lands lying within such inner harbor line and the high-tide line were fairly designated as

TRESPASS TO LAND-CUTTING TIMBER-MEASURE OF DAMAGES-HARMLESS ERROR-OBJECTIONS TO EVIDENCE.

1. A plat of land is not necessarily inadmissible because not made by a civil engineer.

2. Where the only objection made to the admission of a map was based on the incompetency of the person who made it, it cannot be contended on appeal that it was inadmissible because of extraneous matter on its face.

3. In an action for the wrongful cutting of timber on plaintiff's land, an instruction that "the measure of damages would be the value of the trees or timber standing on the lands, and the diminished value of the land, if any, by reason of their having been cut," and "that if, by reason of the cutting" of the trees, "plaintiffs have suffered damages to their freehold, other than the market value of the trees," "then you should render a verdict for plaintiff equal to such damages, in addition to such market value of the trees," is erroneous. Dunbar, J., dissenting.

4. Where the verdict shows that the jury did not take into consideration any injury to the freehold, such error is unprejudicial, and therefore not ground for reversal.

Hoyt, C. J., dissenting.

Appeal from superior court, King county; R. Osborn, Judge.

Action by Samuel D. Gustin and others against Thomas Jose and another. There was a judgment for plaintiffs, and defendants appeal. Affirmed.

of timber, but alleging that it was so cut and removed by them under a license from plaintiffs, and by an agreement between the plaintiffs and themselves that the defendants were to pay plaintiffs for said timber at a certain price, to wit, 50 cents per 1,000 feet. They also allege a further agreement, made after the cutting of the timber, that the price of the timber taken should be $784, to be paid in cedar logs; and that afterwards, pursuant to said agreement, defendants delivered to plaintiffs a certain number of logs reasonably worth $146.25, afterwards refusing to receive the remainder of the logs. The reply of the plaintiffs denied the license or authorization of any kind, or that there was any contract as to value, or that they had ever agreed to or had received any cedar or any logs in payment of their demand. So upon this issue the case went to trial.

Dur

There are, however, two exceptions which we think should be especially noticed. ing the testimony of witness Guilfoil, a certain plat of the land from which it was alleged the timber was taken was introduced by the plaintiffs, and its introduction was objected to by the defendants. It is claimed here in the argument of the case that this plat was objectionable, from the fact that, in addition to the description of the land, the number of trees that were alleged to have been taken was marked on the plat, and also the computation of the number of feet cut by the defendants. This is the objection, and all the objection, that is raised in this court to the admission of this plat. The plat, we think, was evidently objectionable; and had it been admitted over the objections of the appellants, for the reasons urged here, it would warrant a reversal of this case. But an investigation of the record shows that the objection to the admission of the plat was not to the plat itself, but to the competency of the person offering it to make the same. After the witness had testified that he had made a rough plat of the land described in the complaint, the

DUNBAR, J. This is an action brought by the respondents for damages for the unauthorized and unlawful cutting of timber by the appellants off land alleged to be the land of respondents. The latter recovered judgment for the sum of $1,748.42, from which judgment the appeal is taken to this court.

Under the pleadings in this case, many of the exceptions taken seem to us to be taken entirely without warrant of law or reason. The proof of ownership of the land was ample, and the testimony rightly admitted. The fact is that the only material issue in this case was the value of the property taken; the defendants admitting in their answer that they cut and removed from the land described in the complaint a certain amount

sir.

and the following colloquy ensued: "Mr. Turner (appellants' attorney): Mr. Guilfoil, you say that you have been a contractor and logger for the past four and a half years? Ans. I have been a logger for the past four and a half years; previous to that time, a railroad contractor. Q. Are you a civil engineer by profession? A. No, Mr. Turner: I object to the introduction of this plat. Mr. Barnes: You say you made it? Witness: Yes, sir. Q. You made the survey yourself? A. Yes, sir. The court: Objection overruled. The plat received in evidence." So that it will be seen that the objectionable features in the plat were never called to the attention of the court. The court had no occasion to examine the plat at all, and did not do so, so far as this record indicates; the only question being as to the competency of the witness to make the plat.