Wash.) (89 Wash. 514) KALEZ v. SPOKANE VALLEY LAND & WATER CO. KALEZ et ux. v. SPOKANE VALLEY LAND & WATER CO. (No. 12805.) (Supreme Court of Washington. Feb. 7, 1916.) NAVIGABLE WATERS 40-APPROPRIATION -SALE OF SHORE LAND-RIGHTS OF GRANTEES AND APPROPRIATOR. The state having authorized defendant to appropriate for purpose of irrigation the waters of a navigable lake and the shore lands thereof, plaintiffs by their subsequent purchase of such lands from the state took them subject to defendant's right to use for purpose of irrigation, so that its mere maintenance of the water to the line of ordinary high water gave them no right of action. [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. § 245; Dec. Dig. 40.] Department 1. Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge. Action by M. J. Kalez and wife against the Spokane Valley Land & Water Company. Judgment for defendant, and plaintiffs appeal. Affirmed. Robertson & Miller and E. W. Hand, all of Spokane, for appellants. Allen, Winston & Allen, of Spokane, for respondent. MOUNT, J. This action was brought to recover damages alleged to have occurred by reason of the overflowing of plaintiffs' lands by the defendant. The case was tried to the court and a jury. At the conclusion of all the evidence the court discharged the jury and entered a judgment of dismissal. The plaintiffs have appealed from that judgment. The facts are substantially as follows: Liberty Lake is a navigable body of water in Spokane county. This lake has no natural outlet except at extreme high water, when it overflows at the north end through a small lake known as Loomis Lake, toward the Spokane river. Liberty Lake is fed by melting snows in the spring from the adjacent hills, and rises, at extreme high water, to a point 2,057 feet above sea level. Thereafter the water percolates, or evaporates, until late in the summer, when it reaches extreme low water at about 2,050 feet above sea level. About the year 1900 the predecessors in interest of the respondent appropriated under the statute 50 cubic feet per second of time of the waters of Liberty Lake for the purpose of irrigating lands on the plateau between the lake and the Spokane river. The respondent company has succeeded to the rights of the original appropriator. In the year 1903 the respondent constructed a dam across Liberty Lake at the point where Liberty Lake flows into Loomis Lake; the latter lake being nonnavigable. The purpose of this dam was to store the water in Liberty Lake in the winter and the spring seasons for use in irrigation later in the sum 1097 Liberty Lake, and some 2 feet below extreme high water. The effect of this dam was to hold the water in Liberty Lake for a longer period during the dry season than it would ordinarily maintain the higher level. The meander line of Liberty Lake was fixed by the government at about the point of extreme high water. The rights of the Northern Pacific Railroad Company to the upland bordering on this lake attached in the year 1884. In the year 1896 the plaintiffs purchased under a contract from the Northern Pacific Railroad Company fractional section 25, township 25 N., range 45 E. W. M., bordering on Liberty Lake, and in 1900 received a deed from the railway company for the land. In the year 1909 the commissioner of state lands in this state served a notice upon the plaintiffs that they, being the upland owners, would have 60 days' preference right to purchase shore lands on the lake. On January 8, 1913, the plaintiffs entered into a contract with the state to purchase the shore lands abutting upon the lake. These shore lands consisted of lowlands at the south end of the lake which at extreme high water are overflowed, but at low water are bare, and may be used for cultivation. The record shows that before the dam was constructed these lowlands would become dry about the 1st of June, and thereafter crops would mature thereon. The plaintiffs have cleared the lands and have cultivated a part thereof. The effect of the construction of this dam, as stated above, was to cause the water of Liberty Lake to be held for a longer period during the summer season upon these lowlands, and the plaintiffs are thereby prevented from raising crops thereon. The trial court, under these facts, was of the opinion that these lands were shore lands, and that, since the respondent, under the statute, had appropriated the waters of the lake for the purposes of irrigation, and that the state had prior to the sale of the shore lands to the appellants authorized the respondent to appropriate the shore lands between the limits of ordinary high water and ordinary low water for storage purposes, the use of the shore lands for that purpose was rightful, and that the plaintiffs were therefore not entitled to recover. That Liberty Lake is a navigable lake is now beyond question. It was so held to be in Kalez v. Spokane Valley Land & Water Company, 42 Wash. 43, 84 Pac. 395; Madson v. Spokane Valley Land & Water Co., 40 Wash. 414, 82 Pac. 718, 6 L. R. A. (N. S.) 257; and Spokane Valley Land & Water Co. v. Jones & Co., 53 Wash. 37, 101 Pac. 515. This being navigable water, it is plain that the shore lands between ordinary high water and ordinary low water were the property of the state. State Constitution, art. 17. No claim is made that these shore lands For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes were patented to any person prior to the adoption of the Constitution. At any rate, there is nothing in the record in this case to show any such patent. When it was shown, therefore, that the state had authorized the appropriation for the storage of water for the purposes of irrigation prior to the time the state sold the lands to the plaintiffs, the plaintiffs, of course, took with notice of that appropriation. In Kalez v. Spokane Val. Land, etc., Co., supra, after holding that this lake was a navigable lake, this court, at page 48 of 42 Wash., at page 396 of 84 Pac., said: "The state would have the right to make such use of the water or of the bed of said lake as to it would seem proper, and could confer upon this respondent the rights of irrigation sought to be exercised by it; due regard being had to the rights of others. Were it made to appear that the dam or gates erected, or about to be constructed, by the respondent had or would raise the water above the ordinary high-water line, and to the injury of appellants' property, the court would doubtless furnish relief. the beds or shore lands of such waters or to take from such waters water for irrigation as against the state, its grantees, or those who have appropriated such water for purposes of irrigation in compliance with the laws of the state." It follows that, when the state authorized the respondent or its predecessors in interest to appropriate the waters of this navigable lake and the shore lands thereof for purposes of irrigation, and when the state sold the shore lands to the plaintiffs, it sold only the interest it then had. The plaintiffs acquired no greater right. They took the lands, therefore, subject to the right of the respondent to use them for purposes of irrigation. This use, if within the limits of ordinary high and ordinary low water, is a rightful use for which damages cannot be claimed. We are satisfied, therefore, that the trial court was right, and the judgment is therefore affirmed. MORRIS, C. J., and ELLIS, FULLERTON, But in this case the court found, and properly and CHADWICK, JJ., concur. we think, that the respondent, in retaining the water during the winter months as aforesaid, had not caused the same to raise above the line of ordinary high-water mark, and that it had not in the summer time or at any time withdrawn a sufficient amount of water to lower the lake below the line of the ordinary low-water mark. These things being true, we think that the respondent has acted within its legal rights, and that the appellants have no legal cause of complaint." The same is true in this case. The evidence conclusively shows that the dam in question is two feet below the line of high water, and at about the line of ordinary high water. The evidence also conclusively shows that the only effect of the dam is to maintain the water in Liberty Lake for a longer period than it would naturally remain at the higher level, and that the use being made of the lake for storage purposes was within the lines of ordinary high water and ordinary low water. In the case of State ex rel. Ham, Yearsley & Ryrie v. Superior Court, 70 Wash. 442, 126 Pac. 945, in referring to the Kalez Case, supra, where it was stated that the government of the United States could not dispose of shore lands below the high-water mark, but that such lands would become the property of the state under section 2, art. 17, of the state Constitution, we said, in referring to those statements: (89 Wash. 593; NORTHWEST MOTOR CO. v. BRAUND. (No. 13114.) (Supreme Court of Washington. 1916.) Feb. 15, 1. CORPORATIONS 499-ACTIONS-RIGHT TO SUE-PAYMENT OF FEES. Where a corporation failed to pay its annual license fee required by Rem. & Bal. Code, §3715, until after trial, but did pay it before the argument for new trial or entry of findings and decree, the payment was sufficient compliance with the statute to enable it to conduct the suit, especially where the defendant therein counterclaimed and took judgment thereon. [Ed. Note.-For other cases, see Corporations, Cent. Dig. 88 1910, 1911, 1913-1919, 2030; Dec. Dig. 499.] 2. REFORMATION OF INSTRUMENTS 45 Where a party to a contract before signing it read a portion of it and objected to the rate of interest provided, though he alleged and the other denied that he was told it was only a whole contract was read, he was not thereafter form, and the other party testified that the entitled to reformation on the ground of fraud. where fraud was not shown by clear and substantial evidence. of Instruments, Cent. Dig. §§ 157-193; Dec. [Ed. Note.-For other cases, see Reformation Dig. 45.] Department 2. Appeal from Superior Court, Pierce County; Ernest M. Card, Judge. "It is suggested that these remarks were largely dictum, and not necessary in the decision of Action by the Northwest Motor Comthat case. There is some reason for that sugges-pany against Charles Braund, in which the tion in view of the facts there involved. Never- defendant filed a counterclaim. Judgment theless the view there expressed seems to be fully in accord with the views of the Supreme for defendant thereon, and plaintiff appeals. Court of the United States as expressed in Reversed and remanded, with instructions. Shiveley v. Bowlby, 152 U. S. 1 [14 Sup. Ct. 548, 38 L. Ed. 331]. We are of the opinion that common-law riparian rights in navigable waters, if it can be said that the common law recognized such rights, have not existed or been recognized in this state since the adoption of our Constitution; at least so far as the upland owner having any right to occupy in any way Knight & Muscek and George R. Biddle, all of Tacoma, for appellant. Burkey, O'Brien & Burkey, of Tacoma, for respondent. BAUSMAN, J. Action at law tried without a jury, plaintiff suing for the balance upon a conditional sale contract of a second- I tiff as requested by plaintiff in its first conhand automobile. Defendant, admitting that clusion of law, less the sum of $25 adjudged he had made the contract, answered that it due defendant by the court in its sixth findcontained terms expressly excluding guaran- ing on account of tools constituting a part ties, when in point of fact it should have con- of the car and not delivered with it. Retained those guaranties. Demanding refor-manded accordingly. mation, he sets up violated guaranty of workmanship, materials, and condition, and counterclaims for damages. Judgment was ren- and PARKER, JJ., concur. dered in his favor on these counterclaims. [1] Plaintiff's annual corporation license fee, under Rem. & Bal. Code, § 3715, was unpaid until after trial. It was, however, paid before the argument for new trial and before the entry of the findings and the decree. We hold this to be a sufficient compliance with the statute to enable plaintiff to conduct this suit, for as we have previously held, the statute is but a revenue measure and we have no hesitation in extending to this situation the doctrine of Eastman v. Watson, 72 Wash. 532, 130 Pac. 1144. There is additional reason here because defendant has not only counterclaimed, but takes judgment under that counterclaim against this plaintiff in consequence of which plaintiff, being forced to defend, is in substantially a similar situation to that of plaintiff in North Star Co. v. Alaska Co., 68 Wash. 457, 460, 123 Pac, 605. [2] The lower court found that plaintiff signed the contract under false assurance as to its contents, and that it should have contained the guaranties. But this is another case in which we must insist that fraud be made out by the substantial weight of the testimony. To begin with, defendant not only was able to read, but admits that, before signing the contract, he looked into it and objected to the rate of interest. others refusing to change it, he submitted to that, so if the thing does not speak defendant's mind the fault is his own. The If they are to be set aside or altered upon no stronger showing than is made here the sanctity of writings is done for. Substantially the most that can be said of defendant's testimony is that at the time of the signing he did not read the contract and was assured that it was only a form. But the plaintiff company for its part denies this, claims that the paper was actually read to the man, produces the writing itself with his signature, and asserts that they understood it to mean what it says. It is not even pretended that cunning or unusual means were employed to keep him from reading the contract. No man shall escape his bargain on testimony like this. It is to avoid just these disputes that contracts are put in writing. To overturn these there must be not merely some though roundly asserted testimony, but a preponderance of testimony, substantial and clear. The cause is reversed, with instructions that judgment be entered in favor of plain MORRIS, C. J., and MAIN, HOLCOMB, (89 Wash. 582) (No. 13127.) STATE v. BROWNLOW. (Supreme Court of Washington. Feb. 9, 1916.) 1. CRIMINAL LAW 519-EVIDENCE-CONFESSION. The confession of one charged with grand larceny, voluntarily made to a police officer while under arrest and in jail, though she was not reminded that she was under arrest, that she was not obliged to reply, and that her answers would be used against her, was admissible. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1163-1174; Dec. Dig. 519.1 2. WITNESSES 301-PRIVILEGE of DefendANT-IMPEACHING QUESTION. In a prosecution for grand larceny, the on cross-examination question to defendant to which she answered she had, was not an inwhether she had ever suffered conviction before, vasion of any constitutional right, since by taking the stand defendant invited the question to impeach her credibility. Cent. Dig. §§ 1043-1046; Dec. Dig. 301.] [Ed. Note.-For other cases, see Witnesses, 3. WITNESSES 305-APPEAL AND ERROR RESERVATION OF GROUNDS OF REVIEW-OBJECTION TO QUESTION. In a prosecution for grand larceny, where defendant did not object to the question to her fered conviction before, she acquiesced therein. on cross-examination whether she had ever suf [Ed. Note.-For other cases, see Witnesses, Cent Dig. §§ 1053-1057; Dec. Dig. 305.] 4. CRIMINAL LAW 783-TRIAL-INSTRUC TION. In a prosecution for grand larceny, a charge showing previous conviction, but that it was no mentioning that there was evidence introduced proof of defendant's guilt, but only touched her credibility, was proper. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1734, 1735, 1872-1876; Dec. Dig. 783.] 5. CRIMINAL LAW 1056-APPEAL AND ERROR-RESERVATION OF GROUNDS OF REVIEW -INSTRUCTION. A defendant in a criminal case, who failed to except to a charge, cannot complain thereof on appeal. [Ed. Note.-For other cases, see Criminal Law, Cent. §§ 2668, 2670; Dec. Dig. 1056.] Superior Department 2. Appeal from Court, King County; Kenneth MacKintosh, Judge. Nellie Brownlow was convicted of grand larceny, and she appeals. Affirmed. Will H. Thompson, of Seattle, for appellant. Alfred H. Lundin, John D. Carmody, and Joseph A. Barto, all of Seattle, for the State. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 357.] 3. MASTER AND SERVANT 145-INJURIES TO SERVANT-DUTY OF SECTION MAN. BAUSMAN, J. [1] Appellant, convicted of most reasonable care under existing circumgrand larceny, presents as a first grievance stances, taking into consideration his other duties. the lower court's admitting her confession [Ed. Note. For other cases, see Railroads, made to a police officer during arrest and in Cent. Dig. § 1235; Dec. Dig. jail. The confession was properly admitted. It was not necessary to remind her that she was under arrest, that she was not obliged to reply, and that her answers would be used against her. There was no inducement, fear, or threat. The statement was voluntary. Rem. & Bal. Code, § 2151; State v. Barker, 56 Wash. 510, 106 Pac. 133; State v. Royce, 38 Wash. 111, 80 Pac. 268, 3 Ann. Cas. 351; State v. Wilson, 68 Wash. 464, 467, 123 Pac. 795. [2-5] Testifying for herself she was asked on cross-examination whether she had ever suffered conviction before, to which she answered that she had. No objection was made. Nevertheless, it is argued that here was an invasion of a constitutional right. The court, it is said, should have itself protected her. This we cannot sustain. Defendant, taking the stand on her own behalf, warrants her credibility as a witness and invites the impeaching question. There was no error in that question, and failure to object to it, moreover, is acquiesence. The situation is clearly not that in State v. Jackson, 83 Wash. 514, 145 Pac. 470, where it was the trial judge himself who put certain questions and where we held that exceptions against his course were not necessary for reasons peculiar to his relation to trial. Neither did the judge in the present case bring himself within the rule of that case when in charging the jury he mentioned that there was evidence introduced showing previous conviction, for he was careful to add that it was no proof of defendant's guilt in the pending trial but only touched her as a witness. Besides, to this also no exception was taken. Judgment affirmed. Railroad trains have the right of way over section men, and such men, where the rules require them to look out for trains, are bound to do so. [Ed. Note.-For other cases, see Master and Servant, Century Dig. 288; Decennial Dig. 145.] 4. MASTER and Servant 278-INJURIES TO SERVANT. In an action for the death of a track inspector run down while riding on a speeder by an engine which was proceeding tender first, evidence held to warrant a finding that those in charge of the engine were guilty of negligence in not keeping proper lookout. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960–969, 971, 972, 977; Dec. Dig. 278.] 5. NEGLIGENCE 101-COMPARATIVE NEGLIGENCE - INTERSTATE COMMERCE FEDERAL EMPLOYERS' LIABILITY ACT. -- Act, the contributory negligence of an injured Under the Federal Employers' Liability or deceased servant will not bar recovery, but will only reduce recovery proportionally. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 85, 163, 164, 167; Dec. Dig. 101.] 6. NEGLIGENCE 98 COMPARATIVE NEGLIGENCE-INJURIES TO SERVANT. Where the rules of a railroad company required section men to keep a lookout for trains, deceased, who was inspecting the track on a speeder, is guilty of negligence in not maintaining a lookout for trains, regular or irregular, particularly where he wore a cap which covered his ears so as to affect his hearing, and his negligence is at least equal to that of the railroad company in running an engine backwards without maintaining a proper lookout. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 93, 165; Dec. Dig. ~98.] 7. MASTER AND SERVANT 226-INJURIES TO SERVANT-ASSUMPTION OF RISK. While a section man inspecting a track MORRIS, C. J., and MOUNT, HOLCOMB, used for interstate commerce who was required and PARKER, JJ., concur. to keep a lookout for trains regular and irregu lar assumes the risk of injury from trains, be does not asume the risk of injury from trains negligently operated. [Ed. Note.-For other cases, see Master and Feb. 15, 8. MASTER AND SERVANT 180-EMPLOYERS' 1. COMMERCE 27-"INTERSTATE COMMERCE" -PERSONS ENGAGED IN. One inspecting the main track of a railroad engaged in intra and inter state commerce is engaged in "interstate commerce," and an action for his death or injury falls within the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665). [Ed. Note.-For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. 27. For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.] 2. RAILROADS 357-INJURIES TO PERSONS ON TRACKS-DUTIES OF FIREMEN. The degree of care to be exercised by a locomotive fireman in watching the track is the 10. API'EAL AND ERROR 1151-DETERMINA- | brakes, and brought the engine to a stop TION-POWER OF SUPREME COURT. In a death action under the federal Employers' Liability Act tried without a jury, the Supreme Court may, where no deduction for the deceased's contributory negligence, which was equal to that of defendant railroad company; was made, make such deduction from the award and affirm the judgment; the case being tried de novo on the record. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4498-4506; Dec. Dig. 1151.] Department 2. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge. Action by Gust Anest, administrator of the estate of Keneages Flengern, deceased, against the Columbia & Puget Sound Railroad Company. From a judgment for plaintiff, defendant appeals. Modified and affirmed. Farrel, Kane & Stratton and Stanley J. Padden, all of Seattle, for appellant. Revelle, Revelle & Revelle, Higgins & Hughes, and James McCabe, all of Seattle, for respondent. HOLCOMB, J. On Sunday, December 15, 1912, Keneages Flengern, while employed in inspecting appellant's railroad track by the order of his immediate superior, the section foreman, was killed. He was riding eastward from Renton upon a "speeder," or handcar, operated by himself at the time. The morning was cold and stormy, and the deceased had on, when found immediately after the accident, a Swedish cap with flaps fastened over his ears and tied under his chin. At a point about 1,000 feet east of a bridge called bridge No. 7 there is a curve to the south in the track. An engine without any car attached was backing down across the bridge, eastward and around the curve, at a speed of about 20 miles per hour. It was running from Renton to Maplewood Farm to "pick up" a car. There were on this engine the engineer, fireman, and a - brakeman. The engineer was in his place on the seat box at the right side of the engine when facing toward its head or left side of it as it was going, and the fireman and brakeman sat on a seat box on the opposite side, except when the fireman was attending to his duties. There was no man stationed on the rear of the tender or tank of the engine to ascertain if the track was clear and give signals to the engineer. An engine such as that one, running as it was, can be stopped, according to the condition of the track, in from 150 to 300 feet, if properly equipped. The engineer, a witness for plaintiff, said that, when just at the end of and coming out of the curve, the fireman saw the speeder ahead on the track, and called out to the engineer to whistle. They were then about two car lengths from the speeder. He immediately applied the emergency within about 300 feet. Before stopping the locked wheels slid some distance, and the rear of the engine, being the end of the tank, struck the speeder upon which deceased was riding, knocking him off, and inflicting upon him fatal injuries. The engineer could not see the speeder before the fireman called out, because he was on the left-hand side and in the bend of the curve. The fireman and brakeman for the appellant both state that they did not see the speeder until the moment the fireman called to the engineer. The deceased had his back to the engine. The evidence is undisputed that the track upon which deceased was riding, which he was inspecting, and upon which he was killed, was appellant's main line track, and, although its railroad lies wholly within King county, state of Washington, it was then being used in transporting cars that went out of the state carrying both intrastate and interstate commerce. The deceased was 45 years of age at the time of his death, and left surviving him a widow and three minor children, all dependent upon him, but living in Greece. The case was tried to the court without a jury, and the court, after the conclusion of the testimony, and, as he certifies, "with the consent of and accompanied by both parties hereto and their respective counsel, viewed the premises where the accident occurred, and also Columbia & Puget Sound engine No. 5, which ran down the deceased." There were findings and conclusions and judgment against appellant for damages in the sum of $3,700, apportioning $2,835 thereof to the widow, $115 to a minor daughter, $350 to one minor son, and $400 to another minor son. The complaint charges, in effect, that the appellant was negligent: (1) Because it failed to station a man on the rear of the engine to ascertain if the track was clear; and (2) because it failed to exercise reasonable care in the operation of its engine and tender to avoid the collision and consequent injury to the decedent after the company, its agents and officers, became aware of the presence of the decedent upon its track. The answer pleads assumption of risk and contributory negligence, and denies the allegations of negligence, relationship, and damages, and the further allegation that the things which the decedent was doing were incident and necessary to the carrying on of the business of interstate commerce by appellant, and that the decedent was employed by appellant, aiding and assisting it in carrying on its interstate commerce business. [1] 1. It is contended by appellant that respondent failed to show a cause under the Employers' Liability Act. This contention is without merit. It was alleged in the amended complaint, and not denied in the answer, that appellant was at the time of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |