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ers.

STEELE, J. (dissenting). I cannot agree

(28 Wash. 206) with my associates in the disposal of this

OVERLOCK V. SHINN et al. case. I do not think the evidence shows the

(Supreme Court of Washington. April 3, existence of an underground flow of water

1902.) through the sand, in any defined or known

ABATEMENT-REVIVAL-MORTGAGE FORECLOcourse, from the Medano creek to either of SURE SUIT-NEW SUIT BY ADMINISTRA

TOR-STATUTE-CONSTRUCTION. the springs from which the plaintiff made its

1.2 Ballinger's Anu. Codes & St. $ 4837, proappropriations of water. When the Medano viding that no action or cause of action which emerges from its cañon it flows in a south- survives shall abate by the death of a party, and westerly direction in a well-defined channel authorizing the revival thereof within a year for about a mile and a half, where the chan

by or against his personal representative or

successor in interest; does not preclude the adnel widens so that three miles above Mosca

ministrator of a mortgagee who has died pendcreek the stream bed is about 600 feet wide, ing a foreclosure suit from commenciug a suband below Mosca creek it widens to 1,100 sequent foreclosure suit after the expiration of

a year, without any disposition being made by feet. The water usually disappears in the the court of the former suit, as the statute sand before reaching Mosca creek, but when does not prevent the action from abating on the water is very high it flows on the sur- the mortgagee's death, but only authorizes the face to about the point indicated on the map.

continuance of the action within a year by the

personal representative. Former State Engineer Green testifies that 2. Under the Code practice, the rule that acthere is no apparent loss in volume until the tions abate on the death of a party is as apchannel of the creek widens. There is no

plicable to actions of an equitable nature as to

law actions. point in the course where the water disappears with a current, and it all disappears

Appeal from superior court, King county; at varying distances of from three to seven

Wm. Hickman Moore, Judge. miles from the plaintiff's springs. Even if

Mortgage foreclosure suit by W. H. Overit be assumed that a considerable portion lock, as administrator of Emeline Burgett, of the water from the Medano makes its

deceased, against William J. Shinn and othway to the Big Spring by percolation along

From a decree in favor of plaintiff, the an ancient water course, it seems to me that

defendant N. W. Parker appeals. Affirmed. that is merely waste or seepage water, and McClure & McClure, for appellant. Henry that the plaintiff is entitled to it as such B. Madison and Root, Palmer & Brown, for under its prior appropriations, as against respondent. any one taking it from the sands; but that the plaintiff did not acquire the right to FUI LERTON, J. This is action have the water in Medano creek run to waste, brought to foreclose a real estate mortgage. and the defendants are therefore entitled to The mortgage sued upon was executed by use the water from the natural stream, not- the defendants William J. Shinn and May R. withstanding such use may diminish the Shinn, his wife, to one Emeline Burgett, seepage supply of the plaintiff. The reasons since deceased, and the respondent sues as given by the court for the finding that the administrator of her estate. The action was waters of Sand creek do not contribute to the begun on February 10, 1900. To the comsupply of the Big Spring appear to me to ap

plant, which was in the usual form, the apply equally to the waters of the Medano. It pellant, Parker, answered, putting in issue is the merest guesswork to attempt to deter- certain of its allegations, and pleading afmine the source of supply of a spring from firmatively the following: “(1) That on, to comparative elevations and the quantities of wit, the 8th day of November, 1895, the said water flowing in different streams in its Emeline Burgett, mentioned in plaintiff's neighborhood. There was evidence that the complaint, being then and there the owner flow of the springs diminished after the sink- and holder of the note, coupon notes, and ing of artesian wells and before the defend- mortgage mentioned in said complaint, comants took water from the Medano. I think menced an action in the superior court of the it might well be true that the water table state of Washington for King county, in which supplies the artesian wells also sup- which action the said Emeline Burgett was plies the springs, and that the artesian wells plaintiff and the defendants in this action affect the springs more directly than the Me- were defendants, for the purpose of obtaindano creek does. A copy of plaintiff's Ex- ing judgment upon the note and coupon hibit C, which I have attached hereto, will notes and for the foreclosure of the mort. show more accurately than any written de- gage mentioned in plaintiff's complaint herescription the points in controversy in this in. That in said action this defendant was case. The principal elevations necessary to duly served with summons, and duly appearan understanding of the map are:

ed and answered. (2) That thereafter, and Spring, 7,909.32 ft.; Little Spring, 7,897.42 on the 23d day of January, A. D. 1896, the ft.; Medano creek at point due east from said Emeline Burgett died; and that neither Big Spring, 8,450 ft.; Medano creek at point the plaintiff herein, nor did any other person due east from Little Spring, 8,100 ft.; Sand as administrator of the estate of said Emecreek (Rito Arena) at point northwest from line Burgett, or as executor of her last will Big Spring, 7,960 ft

and testament, or as her representative or

an

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successor in interest, continue said action. tive to have the action continued or whether (3) That at the time this action was com it be within the discretion of the court to menced the prior action in this affirmative permit it to be continued, the court may aldefense above mentioned, wherein the said low it to be done, even against the objection Emeline Burgett was plaintiff and the de of the surviving party. After that time this fendants herein were defendants, was and is right or discretion, whichever it may be, now pending and undetermined in this court." ceases; and the court cannot, after the exA general demurrer was interposed and sus piration of the year, permit a representative ta ined to this affirmative defense, and a trial of a deceased plaintiff, over the objection of had on the issues of fact raised by the an the defendant, to continue an action begun swer, resulting in a judgment of foreclosure. | by a plaintiff who dies while the action is

The errors assigned raise the question pending. This much seems clear. It seems whether an action, the cause of which sur clear, also, from the general principles and vives the death of a party, brought by a rules governing the practice in civil cases, plaintiff who afterwards dies, is a bar to an that the representative of a deceased plainother action brought by his representative on tiff would not be heard to move for a disconthe same cause of action after the lapse of tinuance of an action in a case where he one year from the time of the plaintiff's would not be heard to move for its continudeath, no disposition having been made of ance. This being true, it follows, if the apthe first action prior to the commencement pellant's contention be sound, that a defendof the second. The statute applicable to this ant in a case like the one at bar occupies a question reads as follows: "No action shall very advantageous position. He can prevent abate by the death, marriage, or other disa the continuance or discontinuance of the bility of the party, or by the transfer of any original action, and can plead such action in interest therein, if the cause of action sur bar of any subsequent action brought upon vive or continue; but the court may at any the same cause of action. Clearly, the stattime within one year thereafter, on motion, ute was not intended to authorize or permit allow the action to be continued by or such a condition as this. It was intended to against his representativés or successors in be remedial; to promote justice, not to opinterest.” 2 Ballinger's Ann, Codes & St. § erate as a denial thereof; and a proper con4837. The appellant argues that the first struction of its provisions authorizes the conclause of this section is mandatory, and pro clusion that an action after the death of a vides in terms that no action shall abate by party abates if no application is made to the death of a party if the cause of action continue it within one year after the death survives or continues; that the latter clause, of such party. The cases where this precise permitting it to be continued by the de question was involved seem not to be many. cedent's representative, is permissive only, to In so far as they have been called to our be granted or denied in the sound discretion attention, however, they support the conclusion of the court; and, whether it is so continued we have reached. In Alabama, under a stator not, it is still an action pending, and a ute almost the exact counterpart of our own, bar against any subsequent action on the it was held that an action abated if applicasame cause of action, so long as it remains tion was not made to continue it within the undisposed of. But we cannot think this is statutory time. Referring to the statute, the the meaning of the statute. At common law court said: “Its first and main object is to an action abated by the death of a party be provide for cases where a sole plaintiff or fore trial or verdict, whether such party was sole defendant dies, or all the plaintiffs or all plaintiff or defendant. If the cause of ac the defendants die, leaving the suit without tion was one that did not survive, death put a party of record, either plaintiff or defenda final end to the action. If the cause was ant. This, if not cured, causes an abateone that did survive, a new action by or ment; for a suit cannot exist without anagainst the personal representative of the de- tagonizing parties. In such case, if the cause ceased party was required to enforce the of action survive, the statute allows eighteen remedy. The inconvenience resulting from months, and only eighteen months, within this rule of the common law led to the adop which to revive in the name of or against tion of the statute, and it is only by statute the successor or representative of the dethat the right of a representative to con ceased party. Failing, the suit abates." Intinue an action begun by his principal exists. surance Co. v. Moog, 81 Ala. 335, 1 South. The statute conferring the right must, there 108. So, in Kansas, under a somewhat simifore, be read as a whole, and effect be given, lar statute, it is held that, where a party to if possible, to all of its provisions. In the an action has been dead for so long a time statute before us, while it states in the first that the action cannot be revived without clause, as the appellant says, that no action the consent of parties, which consent is not shall abate by the death of a party, it is given, the action abates. Banking Co. v. plain that the second clause is a limitation Ball, 48 Pac. 137. So, in 1 Cyc. Law & Proc. upon the first. By this second clause the p. 104, it is said: “In states prescribing a right of the representative to continue the time within which applications to continue action is limited to one year. Within that or revive an action should be made a failure time, whether it be a right of the representa to apply for a continuance or revival within

the time so prescribed is usually fatal;" cit- trap, and measured at a right angle from such ing cases which, if not in point on the precise

line to the nearest point of its trap location,

the distance being 610 feet. Held a compliance question presented, will be found instructive

with the statute, and the location did not enon the principles involved.

croach on plaintiff's location, though, had the It is further contended that the rule of the direction of the trap points been slightly chancommon law relating to the abatement of ac

ged, and the base line thus produced been used

in determining the location, the trap would tions on the death of a party had no appli

have been many feet within the prohibited discation to suits in equity, and hence neither tance. that rule nor the statute can apply to the

2. A statute cannot be ignored by the court case here presented. If, however, it be true

because leading, in its application, to absurd,

incongruous, or even mischievous results. that the common-law rule of abatement did not apply to suits in equity, it does not fol

Appeal from superior court, Whatcom counlow that such is the rule under the code prac

ty; H. E. Hadley, Judge. tice. In this state forms of actions are abol

Injunction by the Alaska Packers' Associaished by statute, and general rules are pre

tion and the Point Roberts Fishing Company scribed, intended to govern rights and pro

against the George & Barker Company and ceedings in all classes of actions, whether

L. D. Pike. The Alaska Packers' Associathe same be of legal or equitable cognizance.

tion, as plaintiff, and Pike, as defendant, were It is, no doubt, true that the courts are com

both dismissed from the action before trial. pelled to and do recognize certain natural in

Judgment for defendant, and plaintiff appeals.

Affirmed. herent distinctions between the different classes of actions which the statutes do not Dorr & Hadley, for appellant. Maxwell & seem to contemplate; but statutes which pro- Connor and Jesse A. Frye, for respondent. vide for the manner of bringing a defendant into court, regulating the procedure therein, FULLERTON, J. This is an action to enfixing limitations upon the right to maintain join the operation and maintenance of a actions, and the like, are usually held to ap- pound net fish trap. The principal question ply to all classes of actions, and should be presented involves the construction of section so held, where they do not conflict with some 4 of the act of 1899 relating to food fishes. fundamental right. The section in question Sess. Laws 1899, p. 197. That section prois fully as applicable to an action of equita- vides, among other things, that there shall be ble cognizance as it is to one purely legal in an end passageway of at least 600 feet, and a its nature, and must be given the same effect lateral passageway of at least 2,400 feet, bein both. As the action pleaded in bar had tween all pound net traps constructed in the abated prior to the time of the commence- waters of Puget Sound; and further provides ment of this action, it was no bar thereto, that, “for the purpose of determining end pasand the court did not err in so holding. sage way a line shall be drawn parallel to the The judgment appealed from is aflirmed. general direction of the shore line for one-half

mile on either side of a proposed location, REAVIS, C. J., and MOUNT, HADLEY, which parallel line shall intersect the outer WHITE, and ANDERS, JJ., concur.

end of any location theretofore made, and maintained as by law provided, and a new lo

cation shall be driven at least six hundred (28 Wash. 200)

feet distant at right angles from such base POINT ROBERTS FISHING CO. V. line." From the record it appears that the GEORGE & BARKER CO.

appellant, plaintiff below, was, at the time (Supreme Court of Washington. April 3,

of the commencement of this action, and for 1902.)

a long time prior thereto, the owner of and FISHING-LOCATION OF TRAPS-END PASSAGE

operating a pound net trap in that part of the WAY-STATUTES.

waters of Puget Sound known as “Boundary 1. Act 1899, relating food fishes, $ 4 (Sess. Bay," under licenses duly issued to it from Laws 1899, p. 197), provides that there shall be

time to time by the fish commissioner of the an end passageway of at least 600 feet, and a lateral passageway of at least 2,400 feet, be- state of Washington. It further appears that tween all pound net traps constructed in Puget the respondent, after the construction of the Sound, and that "for the purpose of determin- appellant's trap, constructed in the same waing end passage way a line shall be drawn parallel to the general direction of the shore line

ters a pound net trap in a northwesterly difor one-half mile on either side of a proposed

rection from the appellant's trap, and distant location, which parallel line shall intersect the therefrom 620 feet, measured between the outouter end of any location theretofore made.

er end of the latter trap and the inner end of and maintained as by law provided, and a new location shall be driven at least six hundred

the former, these points being the nearest feet distant at right angles from such base points between the two traps. The respondline." Defendant, in locating its trap, first ent's trap was also located under a license isascertained the general course the trap would

sued by the fish commissioner, and is in all point when driven, and where a line would intersect the shore it projected along that

respects a lawful structure, if it is not so course, then the general direction of the shore close to the appellant's trap as to be within for one-half mile on each side of the point of

the distance prohibited by statute. In locatintersection, and drew a line parallel with the general direction of the shore, causing such

ing its trap the respondent proceeded by the line to intersect the outer end of plaintiff's following method: (1) It first ascertained the

general course the trap would point when From these facts counsel demonstrate that driven, and ascertained where a line would while the trap is now only 10 feet outside intersect the shore if projected along that of the prohibited distance from the appelcourse from the trap to such shore; (2) it as lant's trap, as measured from the base line certained the general direction of the shore selected, it could be moved 20 feet nearer, for one-half mile on each side of the point of and still remain outside of that distance, by intersection; (3) it then drew a line parallel slightly changing the direction the trap with the general direction of the shore, caus points. Still another change in its direction, ing such line to intersect the outer end of made by swinging the outer end of the trap the appellant's trap; (4) it then ineasured at partially around, using the inner end as a piva right angle from the last-mentioned line to ot, and thus pointing the trap to a different the nearest point of its trap location, being its part of the shore, would produce a base line inner end or end nearest the appellant's trap. which, when measured from according to the The end passageway measured after this rule of the statute, would bring the respondmanner was found to be 610 feet. The trial ent's trap many feet within the prohibited court ruled the meth d of measurement adopt distance, while its actual distance would reed to be correct under the statute, and there main practically unchanged. Still another fore found that the respondent's trap did not change in its course, without making any encroach upon the appellant's location, and change in its actual distance, would leave it refused to enjoin the respondent from main- partially within and partially without the taining and operating it.

prohibited distance. It is upon these and Counsel for the respndent, while they crit similar incongruities that the argument is icise and object to the construction put by the founded upon which we are asked to hold the trial court upon the statute quoted, offer no statute inoperative. But courts are not at other solution by which effect can be given liberty to ignore statutes because it may find to it. On the contrary, they contend that no that their application leads to absurd, inconrule can be formulated out of the words used

gruous, or even mischievous results. The which will not lead to uncertain, ambiguous, wisdom of a statufe, its expediency and polior absurd results, when attempt is made to cy, are legislative, not judicial, questions. apply the rule to some one or more of the ac When, therefore, the meaning of a statute is tual existing conditions; and, for these rea clear, the courts can but give it effect, unless, sons, they contend that this part of the stat

of course, it violates some principle of fundaute should be ignored, and the terms "end" mental law which the legislature is bound to and “lateral" passageways be given their nat observe. To do otherwise “is not to interpret ural meaning: and that to give them their law, but to make it.” Turning to the statute natural meaning is to hold that no new lo itself, we think the trial court correctly incator can locate a trap within a space sur terpreted it. In fact, we can hardly see how rounding an existing trap bounded by lines it could be given any other meaning. But it forming a parallelogram run 2,400 feet from

is said to give it this meaning is to make it each side, and 600 feet from each end, of the

contradictory of what is said before in the trap as it is located and maintained; that is same section; that the section first provides to say, if the existing trap was of the full for an end passageway of 600 feet, and that length permitted by statute, i. e., 2.500 feet, an end passage means a passageway measthe parallelogram would include a space 3,700 ured in a right line on the course the trap feet in width and 4,800 feet in length. With takes. Doubtless this would be true if nothing out the use of maps and diagrams, which can more had been said. But the same authority not be well reproduced here, it is difficult if that had power to provide for an end passagenot impossible to make clear the reasoning of

way had power to define the meaning of the counsel by which they seek to show the un term. When, therefore, it provided for such certainties and absurdities following an at

passageway, and further provided that it tenipt to apply the rule of the statute to con should be determined by measurements made ditions as they actually exist. Some of the

in a particular way, the end passageway is more startling results, however, may be stat. one found by measurements made in the preed. The record shows that the shore bound

scribed way. The statute is a whole, and ary of Boundary bay is of a general, though must be read as a whole. Generals are connot quite uniform, circular shape, making al trolled by particulars; and, when a general most a semicircle. As the course of the “base term is used in a statute which is afterwards line” nientioned in the statute is governed by defined, its meaning is as it is defined to be, the general course of the shore line for one even though the definition may vary or enbalf mile on each side of the place at which tirely change its natural meaning. To vary the proposed new trap will point when con or change the natural meaning of a term is, structed, it is evident that the locator of the in truth, the very purpose of definition when new trap may, where the shore is of the definition is resorted to by the lawmaking shape this is shown to be, determine the di body. rection of this base line by the point on the It is also objected that the trial court erred shore at which he points his trap, and has in finding the course of respondent's trap, and the choice of almost as many different direc it is urged that its true course would suffitions as there are degrees in a semicircle. ciently change the base line to bring the trap

within the prohibited distance. To exemplify Action by A. J. Wolf and another, copartThe evidence on this point would require the ners under the firm name of the Home Supuse of maps, which, as we have said, cannot ply Company, against the Hemrich Brothers well be reproduced. We have carefully ex- Brewing Company. Judgment for plaintiffs, amined it, however, and fail to find any error and defendant appeals. Affirmed. In the trial court's conclusions.

Preston & Embree, for appellant. E. D. The judgment is affirmed.

McLaughlin and Morris & Southard, for reREAVIS, C. J., and MOUNT, WHITE, and

spondents. ANDERS, JJ., concur. HADLEY, J., having

FULLERTON, J. This is an action for presided at the trial below, did not sit at the

damages. In their complaint the respondhearing here.

ents, who were plaintiffs below, alleged, in

substance, that they were engaged in busi(28 Wash. 187)

ness in the city of Seattle, and were owners WOLF et al. v. HEMRICH BROS. BREW- of a horse, wagon, and harness, which they ING CO.

used in connection therewith; that on the (Supreme Court of Washington. April 2, morning of the 15th of February, 1900, the 1902.)

horse was hitched to the wagon and left NEGLIGENT DRIVING - PLEADING AMEND- standing in front of their place of business MENTS-NONSUIT-INSTRUCTIONS.

tied to a strap fastened to a heavy weight; 1. Ballinger's Ann. Codes & St. $4951, provides that before a variance between pleadiugs

that while the horse was so standing a heavy and proof shall be fatal it must appear that

brewery team and wagon, owned and used the cause of action "is not proved, not in some by the appellant, was driven along the street particular or particulars only, but in its entire

by one of its servants, along the side of a scope and meaning." A complaint alleged that, while plaintiff's wagon was standing at the

street car track, and ahead of a street car side of a street, defendant's wagon was driven going in the same direction; that the appelalong the street "along the side of a street car

lant's servant, instead of stopping the team going in the same direction, that [defendant's] servant, instead of stopping

and al

before reaching the respondents' horse and lowing the street car

to pass,

at- wagon, and allowing the street car to pass, tempted to drive between the car and (plain- carelessly, negligently, and recklessly attempt. tiff's] horse and wagon," causing the injury. The proof showed that defendant's wagon had

ed to drive between the car and respondents' been following the car, and that the servant

horse and wagon, colliding with the latter. attempted to pass it by driving between the and thereby damaging the harness and wag. car and plaintiff's wagon. Held not a fatal

on, and so injuring the horse that its future variance, and that it was proper to permit an

usefulness was destroyed. For answer, the amendment.

2. A witness who was riding in the car stated appellant denied the material allegations of that defeudant's wagon approached from the the complaint, and pleaded affirmatively conrear; that, just before reaching plaintiff's wagon, defendant's driver attempted to pass by

tributory negligence on the part of the regoing between plaintiff's wagon and the car,

spondents. A trial by jury was had, reand that the space was not wide enough. An- sulting in a verdict and judgment for the other testified that defendant's team was "go- respondents. ing pretty lively." Held proper to refuse a nonsuit.

On the trial of the cause the respondents' 3. Permitting counsel to ask a witness wheth- evidence tended to show that the street car er defendant's driver "seemed to have" his had passed the brewery wagon some distance team upder control, instead of asking whether he "had" it under control, was not prejudicial

down the street from the place where their error.

horse was standing, and proceeded ahead of H. A charge that, if plaintiff's harness "was it, stopping occasionally to permit passenjujured to an extent, if at all, so as to be gers to get on and off, until opposite the reperfectly worthless, and the preponderance of the evidence of the testimony shows that, then

spondents' horse, when the driver of the you will give the value of the harness," brewery wagon attempted to get ahead of not erroneous, as in effect telling the jury that the car by driving between it and the horse a preponderance of the evidence showed that

and wagon of respondents, and that the acthe harness was damaged so as to be worthless, where the court elsewhere distinctly and clear

cident was caused by the driver's inability ly defined the issues and charged that the jury to pass between the car and the horse and were the sole judges of the facts.

wagon, The respondents, at the conclusion 5. A charge: "It is no defense to this action at all that this car company was guilty of neg

of their case in chief, moved the court for lect; noue at all. It should not be considered leave to amend their complaint, so as to by you,”-given in connection with a charge make it allege that the brewery wagon came that before the jury could find for plaintiffs they must find that defendant's servant was

up the street behind, instead of in front negligent, and that the jury must consider all

of, the car, and to further allege that the the facts in determining the question of negli- cause of the injury was the careless, negli. gence,--was pot erroneous, as telling the jury gent, and reckless attempt of the driver to that the negligence of the car company could not be considered in determining the question

pass the street car at that point. This of the negligence of defendant's servant. amendment was permitted, over the objection

6. Requested instructions are properly re- of the appellant, and constitutes the first erfused where covered by the general charge.

ror assigned. It is argued that the effect Appeal from superior court, King county; of the amendment was to change the cause 0. Jacobs, Judge.

of action; that the negligence originally ab

was

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