of action, or to entitle it to any relief. This demurrer was overruled, and an exception noted. The relator, Smith, now seeks by certiorari to review the action of the superior court in overruling the demurrer to the petition of the Seattle Electric Company, and in entering the interlocutory judgment declaring the public use and necessity, and ordering a jury to assess the damages; and he alleges that the court erred in overruling the demurrer and entering the judgment and order above specified. The respondent moves to quash the alternative writ heretofore issued and dismiss the proceeding for certiorari, or, if it be entertained, that the order of the superior court be affirmed.

It is insisted on behalf of the respondent that, inasmuch as there is no statute providing for an appeal from the judgment of the superior court determining the question of public use and necessity, the constitutional and statutory provisions are sufficiently complied with if that question is judicially determined by the superior court, and that such determination may not be reviewed by certiorari. But this same point was made in the recent case of Seattle & M. R. Co. v. Bellingham Bay & E. R. Co., 69 Pac. 1107, and was there decided adversely to the contention of the respondent after a careful consideration by this court. In that case the superior court adjudged that the use for which the property in question was sought to be condemned was a public use, and that the public interest required the prosecution of the enterprise, and the respondent in that proceeding applied to this court for a writ of certiorari to review the judgment of the superior court. The petition for the writ was demurred to for the alleged reasons that this court had no jurisdiction to issue the writ, and that the application did not state facts sufficient to constitute a cause of action. After quoting section 16 of article 1 of our constitution, which defines and limits the right of eminent domain, and section 4 of article 4, defining the jurisdiction of the supreme court, and reviewing its former decisions bearing upon the questions under consideration, this court observed: "It having been adjudged that no review on appeal of the question of public use and interest involved in the exercise of eminent domain proceedings now exists, it follows that the writ of certiorari may be issued to bring up the record for review in the proceedings for appropriation of the right of way through petitioner's real property. The application for the writ states sufficient cause for its issuance." That case is directly in point here, and is decisive of the question of the power and authority of this court to review the decision of the superior court in condemnation proceedings upon the subject of public use and necessity. It appears clear to us that the petition for condemnation stated sufficient facts to constitute a cause of action, as it alleged all the facts required by the

statute to be stated in such proceedings. And it is equally clear that the superior court had jurisdiction of the particular subject-matter of the proceedings, and that the petitioner therein was vested with legal capacity to prosecute said proceeding. In the year 1899 the power of eminent domain was granted to electric railway corporations by an act of the legislature. Laws 1899, p. 147. But a proviso in section 1 of said act declares "that said right of eminent domain shall not be exercised with respect to any residence or business structure or structures, public road or street"; and it is claimed by the learned counsel for the relator that the Seattle Electric Company is endeavoring to appropriate a public street for the purposes of its railway, in contravention of the above-quoted provision of the statute; or that it is at least undertaking to build an elevated railway in a public street of the city, which it has no right to do, in the absence of direct legislative sanction. But we do not think that the company is either attempting to condemn and appropriate to its own use a street, or to construct an "elevated railroad" on a street, within the meaning of that phrase, as understood in localities where such railways are in common use. An elevated railroad, properly speaking, is one which is placed above the surface of the street which is used by the general public; but such is not the character of the structure which the company is required by the city to erect. Fourth avenue south, at the point in question, is a street in name only, and it became such, as we have said, by the mere act of dedication. It can never be used by the public as a street until it is filled in or planked over at an elevation above the rise of the tides. The city, by ordinance, granted to the electric company the privilege of laying its tracks in this platted and dedicated street,-as it was clearly empowered to do by law,-but it required the company, as compensation for such privilege, to construct a plank roadway or bridge (designated in the record as a "trestle and bridge") not less than 22 feet in width, and upon a grade and at a height specified in the ordinance, and to maintain the same for the use of the public as a street as well as for its railroad tracks. It appears from the findings of fact made by the lower court that the natural surface of the ground in Fourth avenue south in front of the relator's lots is 33% feet below the present grade of Jackson street, the nearest traveled street, and could not be traveled either by pedestrians or teams; that there is now no roadway or structure of any kind in that part of said avenue; and that the city of Seattle has never established any grade for said avenue in those portions of said avenue which are to be occupied by said trestle and bridge, or taken any steps for the construction of a roadway therein, except by the passage of said Ordinance No. 7,015. And it would seem, from the record in this case, that what

the company is really seeking to do, and what the city requires it to do, under its franchise, is, not to condemn and appropriate a street, but virtually to make a street where none has heretofore existed. It is claimed, however, by the relator that no necessity for taking or injuring his property was shown by the company in the superior court. But that question was determined by the court, in the light of the evidence adduced by the respective parties, in favor of the company, and we see no reason for disturbing its judgment. The electric company does not seek to appropriate the corpus of the relator's property, but it is claimed that relator's easements of light, air, and access will be injuriously affected by the building of the proposed structure. Such easements are property, and cannot be taken for public use "without just compensation having been first made, or paid into court for the owner"; but the amount of such compensation must be ascertained by a jury, unless a jury be waived, in the manner provided by law.

The order and judgment is affirmed, at the cost of the relator.

REAVIS, C. J., and DUNBAR, FULLERTON, and MOUNT, JJ., concur.

(29 Wash. 50)

BASH v. CASCADE MIN. CO. (Supreme Court of Washington. Oct. 6, 1902.) MINING CLAIMS-CONTRACT OF SALE-TITLE

REQUIRED.

1. The parties to a contract of sale of a mining claim, to be conveyed on final payment "by good and sufficient deed in fee simple," will be held to have contracted for such title only as the vendor could convey, the vendee going into possession, making improvements and payments, obtaining an extension for making final payment, and offering a bonus for a further extension, all the time knowing the condition of the title, which was perfect, except that no patent had issued.

Dunbar, J., dissenting.

Petition for rehearing. Denied.

For former report, see 69 Pac. 402.

MOUNT, J. The reason for the opinion heretofore filed herein July 5, 1902, is probably not as clearly stated as it ought to be. The case turns on the contract to convey. This contract provides that upon the final payment the vendor shall convey the property described "by good and sufficient deed in fee simple." The meaning of this phrase, as intended by the parties, is the gist of the action. Ordinarily, when a person sells and agrees to convey lands to another by good and sufficient deed in fee simple, and when there are no circumstances to take the case out of the general rule, these words are held to mean a perfect title, both legal and equitable. Rawle, Cov. (5th Ed.) § 32; Powell v. Conant, 33 Mich. 396; Moore v. Williams, 115 N. Y. 586, 22 N. E. 233, 5 L. R. A. 654, 12 Am. St. Rep. 844; Younie v. Wal

rod, 104 Iowa, 475, 73 N. W. 1021; Easton v. Montgomery, 90 Cal. 309, 27 Pac. 280, 25 Am. St. Rep. 123. But where, as in this case,. the vendee has notice and knowledge of the condition of the title, knows that the title is perfect in the vendor with the exception of the issuance of the patent, goes into possession of the property and makes improvements thereon, makes payments, asks for and is given an extension of time in which to make his final payment, and, when this extension has expired, asks for and offers a bonus of $500 for further extension, when he knows patents have not issued, and that his time for payment has expired, such facts show clearly that the parties themselves not only intended that the contract to convey by good and sufficient deed in fee simple meant such title as the vendor could convey, and that the vendee was to rely upon the covenants contained in the deed to indemnify himself against loss by reason of the nonissuance of the patent, but also that the parties themselves so construed it by their subsequent acts and conduct. 1 Warv. Vend. § 24; Godding v. Decker, 3 Colo. App. 206, 32 Pac. 832; Rader v. Neal, 13 W. Va. 373; Younie v. Walrod, supra.

It is insisted in the petition for rehearing that appellant made no offer to convey the property to respondent at the time the tender was made. We have carefully examined the evidence with reference to this point, and find there is practically no dispute upon it. The respondent himself testified that at a meeting of the appellant company, called for the purpose of considering his tender, a quitclaim deed was offered him, and that "they would take the money in escrow until they could perfect the title and deliver me patents." R. W. Emmons, representing a large interest in appellant company, and a witness for respondent, testified substantially that at this meeting they offered to give respondent a regular deed, a quitclaim deed, a warranty deed, "or any kind of a deed he wanted." T. M. Reed, president of appellant company, and a witness for respondent, testified substantially to the same effect.

Petition for rehearing denied.

REAVIS, C. J., and WHITE, HADLEY, FULLERTON, and ANDERS, JJ., concur. DUNBAR, J., dissents.

(30 Wash. 227)

F. CHEVALIER & CO. v. WILSON. (Supreme Court of Washington. Oct. 18, 1902.)

APPEAL RECORD-REVIEW.

1. Affidavits on a motion to vacate a judgment, not made part of the record by statement or bill of exceptions, cannot be considered on appeal.

2. An order overruling motion to vacate a judgment by reciting that it was made after consideration of the argument, affidavits, and briefs, does not identify affidavits in the transcript as all or any of those considered.

Appeal from superior court, Mason county; Mason Irwin, Judge.

Action by F. Chevalier & Co. against J. H. Wilson. From an order denying a motion to vacate a judgment for plaintiff, defendant appeals. Affirmed.

W. I. Agnew and J. W. Robinson, for appellant. H. S. Tremper, for respondent.

DUNBAR, J. This appeal is from an order of the superior court of Mason county overruling a motion to vacate a judgment, set aside a sale which had been made thereunder, and dismiss the action. The respondent interposes a motion to strike from the records and transcript certain affidavits and certified copies of articles of incorporation appearing therein, and moves for an order affirming the order and judgment of the court appealed from, for the reason that the assignments of error sought to be reviewed by the appeal herein and discussed in appellant's brief are based solely and wholly on evidence submitted to the lower court by affidavits and papers at the time of the hearing of the motion upon which such order was based, and that such alleged evidence is not properly before this court for consideration for the reason that said order was based wholly upon evidence, and that said evidence was never settled by the trial court by bill of exceptions or statement of facts, has never been authenticated in any manner by the lower court, and does not, in law, constitute any part of the transcript or record herein. This motion must be sustained. The record does not contain any certification or settlement of a statement of facts or bill of exceptions. The only certificate furnished by the judge is as follows: "This cause coming on regularly for hearing upon defendant's motion for an order setting aside and annulling the execution levy and sale in this cause, setting aside and vacating the judgment, and dismissing the action, and the court having heard the argument of counsel, and having examined the affidavits and briefs furnished by the respective parties, and having duly considered the same, the court finds that said H. S. Tremper was duly authorized to appear for the plaintiff in said action, and it is considered and ordered that the said motion be, and the same is hereby, overruled. Mason Irwin, Judge." It is not ascertainable from this certificate that the affidavits and evidence appearing in the transcript are the affidavits and evidence upon which the judge acted, and, conceding that they were, it does not appear that they were all the affidavits and evidence upon which the conclusion reached by the judge was based. We held in Windt v. Banniza, 2 Wash. St. 147, 26 Pac. 189, that affidavits used upon the hearing of the motion to discharge an attachment are not part of the record, and, in order to be available on appeal, must be brought up by a statement or

bill of exceptions. In Spokane Falls v. Curry, 2 Wash. St. 541, 27 Pac. 477, which was, as is this case, a motion to set aside a judg. ment, it was held that the affidavits, not hav ing been made a part of the record by statement or bill of exceptions, could not be considered. In Clay v. Irrigation Co., 14 Wash. 543, 45 Pac. 141, in speaking of this same question, it was said: "There is nothing to show that they (the affidavits) were all presented or read to the court below on the hearing of the motion, and, in order to entitle them to consideration here, the fact that they were so presented should have been certified to by the court in some manner, and the motion to strike them is granted." In State v. Howard, 15 Wash. 425, 46 Pac. 650, in discussing a motion to strike from the transcript what purported to be copies of motions and affidavits for continuance, it was said: "Such papers, unless authenticated by the certificate of the trial judge, and brought into the record upon proper bill of excep tions or statement of facts settled upon notice, cannot be considered, because in no other way can it be determined that they formed any part of the proceedings below, or that the attention of the trial court was ever directed to them. It is not enough that such papers had been filed by counsel with the clerk of the superior court. It does not follow from such findings that the court's attention has been directed to them. The act of filing is ex parte, and all such papers (other than the technical record or judgment roll) upon which reliance is had in this court, or to which the attention of this court is to be directed upon appeal, should be brought into the record by an appropriate bill of exceptions or statement of facts." In Jacobson v. Lunn, 16 Wash. 487, 48 Pac. 237, in discussing this proposition, it was said: “If appellants desired to have this court review the order appealed from, which upon its face shows that it was made upon affidavits and 'upon all the facts and records of this cause,' they should have had a statement of facts settled by the judge." In Norfor v. Busby, 19 Wash. 450, 53 Pac. 715, it was held that affidavits introduced in the lower court would not be considered on appeal unless included in the statement of facts by the certificate of the trial judge. To the same effect, State v. Anderson, 20 Wash. 193, 55 Pac. 39; Armstrong v. Van De Vanter, 21 Wash. 682, 59 Pac. 510. So it would seem that this question is pretty well settled in this state. It is conceded by counsel for the appellant that the testimony sought to be introduced was not settled by statement of facts or bill of exceptions, but it is claimed that such settlement was not necessary, under the rule announced by this court in State v. Vance (Wash.) 70 Pac. 34, and that under such rule it is sufficient if the affidavits appear in the transcript. But what was said in State v. Vance on this subject is easily distinguished from the holdings in

the cases above cited. In that case one McAnally had made written motion, with affidavit attached, for a continuance. The respondent, upon the appeal, moved to strike the affidavit for the reason that it had not been preserved and made a part of the record in the case by any bill of exceptions or

statement of facts; and this court, in overruling that motion, said: "It appears from the order of the court made upon the motion

and the motion itself that the affidavit was considered by the court in passing upon the motion. From this it can be readily determined that the affidavit formed part of the proceedings in the court below, and that the attention of the trial court was directed to it. The affidavit was an integral and inseparable part of the motion, attached thereto, constituting a part thereof, and setting forth, in verified form, the grounds of the motion; and the order of the court expressly recites that the court had read the same in support of the motion.' The order of the court is a part of the record. It furnishes conclusive evidence that the affidavit was presented to and considered by the trial court in passing on the motion for a continuance." Of course, the object in excluding alleged testimony of this kind is, as stated in the opinions above cited, that it does not appear to this court that such alleged testimony was considered by the court, or, if it was, that it was not all the testimony that was considered; and this court would not be empowered to review a decision of the lower court based upon testimony when it did not have before it the testimony upon which the lower court acted. But it is shown in the Vance Case, just referred to, that the court did act upon such affidavit without any question, and the objection to the testimony being received here would not obtain. That there was no intention on the part of this court to change the rule laid down in the cases above cited is shown by the fact that it distinguished the case there under consideration from all the cases above cited, and pointed out that the reason which prompted the rule announced in those cases did not obtain in the case under consideration.

The evidence upon which the order of the court was made not having been certified to this court, the motion will be sustained, and the judgment affirmed.

probate in the county of which deceased was a resident, or in which he may have died, leaving an estate therein, and not being a resident of the state, the residence of deceased is not a jurisdictional fact; and a petition alleging that deceased died in the county in which probate was asked, and left an estate therein, was suf

ficient, without an allegation that deceased

was a resident of the county at the time of his death.

2. The formal proof on the probate of a will that it was made on the day it was dated, and was signed by the testator, his signature being written by one of the witnesses in the presence of the witnesses; that testator thereupon declared to them that the same was his will, and requested the witnesses, in attestation thereof, to sign the will as such, which they then and there did in the presence of the testator and in the presence of each other, sufficiently showed that the testator's name was signed as required by 1 Ballinger's Ann. Codes & St. § 4595, to support an order admitting the will to probate.

3. Where the record of a proceeding admitting a will to probate shows that the court had jurisdiction, and all the facts necessary to show prima facie a valid will, the burden is on contestants to show that testator did not execute the will, or that he was not of sound mind, or was under undue influence at the time. 4. Nonexpert witnesses, who had been well acquainted with deceased, knowing him personally for a considerable period of time, and who had associated with him on many occasions, were competent to testify as to his mental condition prior to his death aud at or about the time his will was made.

Appeal from superior court, Chehalis county; Mason Irwin, Judge.

Action by Nellie Higgins and others against Mary L. Nethery to contest the will of D. W. Organ, deceased. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

W. H. Abel and A. M. Abel, for appellants. J. A. Hutcheson, for respondent.

MOUNT, J. On January 5, 1899, D. W. Organ died in Chehalis county, leaving an estate therein. Prior to his death, and on May 15, 1893, deceased made a will, by which he left one half of his property to one daughter and the other half to his remaining children, share and share alike. On petition of the executrix named therein, the will was admitted to probate by the superior court of Chehalis county on March 13, 1899. This action was begun by the appellants on February 15, 1901, to set aside the will upon the grounds that the deceased did not make it; that the same is void, because the testator at the time the will was made was not of sound mind, and that undue influence was exercised by the respondent upon the testator prior to the making of the will. On the trial the court found the facts against the contestants, and dismissed the action. From this judgment appeal is prosecuted.

Five errors are assigned, substantially as follows: (1) Error in imposing the burden of proof upon the contestants; (2) error in the admission of evidence of nonexpert wit

4. See Evidence, vol. 20, Cent. Dig. §§ 2198, 2242.

nesses; (3) error in the findings of fact; () error in the conclusions of law; and (5) error in dismissing the cause. When the cause was called for trial, appellants (plaintiffs below) requested the court to impose the burden of proof upon defendant because of certain irregularities which they claimed appeared on the face of the proceedings by which the will in question was admitted to probate, and which it is claimed rendered the proceedings void. The court denied this request, and the ruling is alleged as error. It is claimed that the superior court had no jurisdiction to admit the will to probate, because the petition for the probate of the will failed to state the residence of the deceased, and because residence of the deceased in Chehalis county at the time of his death was necessary to give that court jurisdiction. The petition shows that the deceased died in Montesano, in Chehalis county, Wash., and that said deceased left a will, and an estate consisting of real property within said Chehalis county. The court, when the will was admitted to probate, found that deceased at the time of his death was a resident of said county and state. The statute provides, at section 6087, 2 Ballinger's Ann. Codes & St.: "Wills shall be proved and letters testamentary or of administration shall be granted:-(1) In the county of which deceased was a resident or had his place of abode at the time of his death; (2) in the county in which he may have died, leaving estate therein, and not being a resident of the state; (3) in the county in which any part of his estate may be entered, he having died out of the state, and not having been a resident thereof at the time of his death." The residence of deceased was not a jurisdictional fact under this statute. The superior court had jurisdiction to probate the will whether the deceased resided in Chehalis county or not, provided an estate was left in that county. It is not claimed that the deceased left no estate in Chehalis county.

It is next objected that the execution of the will was not proved at the time it was admitted to probate. The name of the testator was not signed by himself, but was signed, at his request, by another. The statute in reference to the execution of wills (section 4595, 1 Ballinger's Ann. Codes & St.) requires that a will shall be signed by the testator, or by some other person under his direction, in his presence. The evidence of the subscribing witnesses to the will was reduced to writing at the time of the hearing for probate, and is substantially as follows: That they identified the will; that the same was made on the day it bears date, and was signed by the testator, his signature being written by one of the witnesses in the presence of the witnesses; that the testator thereupon declared to them that the same was his last will and testament, and requested the witnesses, in attestation thereof, to sign the will as witnesses, which

We

they then and there did in the presence of the testator and in the presence of each other; that at the time of executing the said will the testator was 74 years of age, of sound and disposing mind, and not under duress, menace, fraud, or undue influence; that subsequently, in January, 1899, the testator died, leaving real estate in Chehalis county. The court found these facts to be true, and made an order admitting the will to probate. Counsel for appellant contends that this evidence does not fairly indicate that Daniel W. Organ was present when his name was signed to the will. think the clear import of this evidence is that the name of the deceased was signed in his presence. It was certainly sufficient for the court to act upon in admitting the will to probate, and sufficient to support an order of probate until it was shown that the contrary was true. The rule is settled in this state that when a will is offered for probate there must be proof that the deceased was of sound mind when the will was made. In re Baldwin's Estate, 13 Wash. 666, 43 Pac. 934. But the rule announced in that case does not go to the extent claimed in the case at bar. When the record shows, as it does in this case, that the court had jurisdiction, and all the facts appear to show prima facie a valid will, the order of the court admitting the will to probate must have some force. For that reason the burden must be upon the plaintiffs to show that the will was invalid by reason of the facts alleged, viz., that the testator did not execute the will, or that he was not of sound mind, or was under undue influence, at the time he made it. The order admitting the will to probate is not conclusive of the facts necessary to support it, but when the facts appear of record they must be taken as true until the contrary is shown.

Nonexpert witnesses were permitted to state their opinion as to the mental condition of the testator during his lifetime. Each of these witnesses testified, in substance, that he was well acquainted with the deceased prior to his death; that he had known him personally for a considerable period of time, and associated with him and conversed with him on many occasions. Under these circumstances it was not error to receive the opinions of such witnesses as to the mental condition of the deceased prior to his death, and at or about the time the will was made. Schouler, Wills, § 201; Sears v. Railway Co., 6 Wash. 231, 33 Pac. 389, 1081; 1 Greenl. Ev. (16th Ed.) § 430p.

At the trial of this case no attempt was made to show that the testator did not in fact make the will, or that he was not present when the will was executed, and no evidence was offered by the plaintiffs to show that any undue influence of any kind was used by any person or exercised in any way on the deceased to cause him to make the will in question. Some slight evidence