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tributing such water as may be necessary for the irrigation thereof, thus enabling each one to have for his land in the district, the benefit of a common system of irrigation, and bringing about the reclamation of the land of the district from aridity to a condition of suitability for cultivation. It was recognized that without such a common system the individual landowners might be unable to obtain water for the irrigation of their lands, and that a work which would be for the public benefit and general welfare. viz., the reclamation from aridity of large portions of the lands of the state, might never be accomplished if left to individual enterprise. The irrigation district legislation, under which a public municipal corporation may be created for the purpose of furnishing water for the irrigation of the land within the district, has been sustained upon the same ground as has the levee and reclamation district legislation, which is, in effect, that the land included within the limits of such a district, requires, by reason of its situation and condition, the protection or reclamation thus made possible, and that it is for the public welfare that such protection or reclamation should be afforded such land. See In re Madera Irr. Dist., 92 Cal. 296, 311-318, 28 Pac. 272, 675, 14 L. R. A. 755, 27 Am. St. Rep. 106.

The ultimate purpose of a district organized under the irrigation act is the improvement. by irrigation. of the lands within the district. It can, under the law, be organized and exist and acquire property only for such purpose. This we think is so clearly apparent as not to require further discussion here. Such a district holds all property ac quired by it solely in trust for such ultimate purpose, and can divert it to no other use. See section 29 of the act of 1897, St. 1897, p. 263, c. 189. It has to do solely with the irrigation of lands within the district, and cannot appropriate water to any other purpose. The right of a landowner of the district to the use of the water acquired by the district is a right to be exercised in consonance with and in furtherance of such ultimate purpose, viz., for the improvement by irrigation of lands within the district, and in no other way. His right is always in subordination to the ultimate purpose of the trust. So far as he proposes to use the water for the irrigation of lands within the district, he is proposing to use it in furtherance of the purpose of the trust, and is entitled to have distributed to him for that purpose, such proportion as his assessment entitles him to. Section 18, Act 1897, St. 1897, p. 259, c. 189. To this extent only can he be held to be the owner of any share or portion of the water, except that, by virtue of the proviso of section 18 (St. 1897, p. 259, c. 189), he may assign the right to the whole or any portion of the share to which he is entitled.

This does not mean, however, that he may make an effectual transfer of his share, free from the trust by which it is incumbered. It still remains subject to that trust, and, therefore, can be used only for the irrigation of lands within the district, and the irrigation district has no authority to distribute it for any other purpose. The right of assignment conferred by the act on a landowner is limited by the whole policy of the statute to an assignment for irrigation within the limits of the district. We do not understand the contrary to have been held in Board of Directors v. Tregea, 88 Cal. 334, 353, 26 Pac. 234.

We are satisfied that plaintiff was not entitled, either as owner or assignee of Burke, to have any water distributed to him by, the defendants for use upon land without the limits of the district. As already stated, the record does not show that he has ever been denied water for use upon his land within the district. Plaintiff alleged

in his complaint that for more than five years prior to the refusal of defendants to apportion and distribute to him water for the irrigation of his land outside the district, he had claimed the right to use and had used under such claim upon such land, more than three-fourths of the water allotted to him, and that such use by him had been adverse to the irrigation district and with its full knowledge. This allegation was, on motion of defendants, stricken from the complaint as irrelevant, and evidence offered in support thereof on the trial was excluded. There was no error in these rulings. If it be assumed that the statute of limitations runs against such a district, plaintiff could not establish title by prescription to this water as against the district in this action, and such plainly was not the object of the allegation or offered evidence. The allegation is not that he ever claimed to own the water as against the district, or in any other capacity than as a landowner of the district, but simply that he had claimed the right, as such landowner, under the law governing such districts, to use his share of the water on the lands outside the district, and had so used it for the five years under such claim and with the knowledge of the district. This could not give him any right by prescription to such use of the water, or afford him any ground upon which he could insist upon a continuance of the unwarranted use. It was wholly irrelevant in this action. In view of our conclusion upon the main question presented and already discussed, the other specifications of error in the record are immaterial, and require no discussion.

The judgment and order are affirmed.

We concur: SHAW, J.; SLOSS, J.

Wash.)

ARTHUR D. JONES & CO. v. SPOKANE VALLEY LAND & W. CO.

(14 Wash. 146)

ARTHUR D. JONES & CO. v. SPOKANE

VALLEY LAND & WATER CO.

(Supreme Court of Washington. Oct. 17, 1906.) 1. APPEAL RIGHT OF APPEAL WAIVERSTIPULATIONS.

The parties to a suit may bind themselves by a stipulation waiving the right of appeal, provided such stipulation is in writing based on a sufficient legal consideration and made a part of the record in the cause.

[Ed. Note. For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 1008-1014.] 2. ATTORNEY AND CLIENT-AUTHORITY OF ATTORNEY-RIGHT OF APPEAL-WAIVER-STIPULATIONS.

An attorney of record may bind his client without specia! authority by a stipulation waiving the right of appeal.

[Ed. Note.-For cases in point, see vol. 5, Cent. Dig. Attorney and Client, § 156.]

3. APPEAL-WAIVER-STIPULATIONS - AVOID

ANCE.

Where parties to a suit made a valid stipulation that any appeal from the judgment entered should be taken in time to be heard at the October. 1906, term of the Supreme Court, otherwise the appeal should be dismissed, the dismissal of an appeal not so taken could not be avoided because appellant's counsel was mistaken as to the date of the commencement of the October term of the Supreme Court, which resulted in his failure to perfect his appeal in time for hearing at such term.

Fullerton, J., dissenting.

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by Arthur D. Jones & Co. against the Spokane Valley Land & Water Company. From a judgment for plaintiff, defendant appeals. On motion to dismiss. Granted. Happy & Hindman and Allen & Allen, for appellant. Gallagher & Thayer, for for respondent.

MOUNT, C. J. The respondent moves to dismiss the appeal in this case upon ground that the appellant has failed to perfect the appeal so that the same might be assigned for hearing upon the October, 1906, calendar of this court. It appears that, while the cause was pending in the lower court, the parties by their attorneys entered into a stipulation which was in writing and filed as a part of the records in the cause, as follows, omitting the title of the cause and the signatures: "It is hereby stipulated by and between said plaintiff and said defendant the Spokane Valley Land & Water Company that the above entitled cause shall be tried on July 2, 1906, and that if either party desires to have the testimony of D. C. Corbin, the trial shall be adjourned for completion until a later day in July, 1906, at which time his testimony may be taken as a part of the trial. It is further stipulated that either party desiring to appeal from the final judgment in said cause must perfect any such appeal and serve their briefs and file their transcript in time so that said cause may be assigned and heard at the October, 1906, term of the Supreme Court of said state and if the appellant fail so to do, the 87 P.-5

65

appeal shall be dismissed and no new appeal taken. This provision not to apply if appeal is dismissed for any other reason. Dated June 20, 1906." The record on appeal was not filed in this court in time to be assigned for hearing, and the case was not assigned upon the October calendar. Respondent thereupon moved to dismiss.

"The parties may bind themselves by a stipulation waiving the right of appeal," and "the attorney of record may bind his client without special authority by a stipulation waiving the right of appeal." 20 Enc. Pl. & Pr., pp. 636, 637. "An agreement of a party to waive the right of appeal will be recognized as a binding contract by the courts. It must be supported by a sufficient legal consideration, and the contract must be expressed in writing, and made part of the record in the cause." 2 Enc. Pl. & Pr., p. 173. The foregoing rules seem to be supported by abundant authority cited in the foot notes in the volumes from which the rules are quoted. Counsel for appellant does not contend that the stipulation was invalid or without consideration or authority, but seeks to avoid a dismissal of the case upon the ground that he supposed the October term began upon the fourth Monday instead of the second Monday in October, 1906. We think this is not a sufficient excuse. It was counsel's duty to know exactly when the term began. The Statute (section 4652, Ballinger's Ann. Codes & St.) and the rules clearly provide the dates for the beginning of each session. If counsel did not know the dates upon which the sessions began when he entered into the stipulation, it was his duty to inform himself and to comply with his stipulation to have the appeal in this court in time. Counsel for respondent are in no wise to blame. They have placed nothing in the way, but the record shows they have expedited the appeal whenever possible to do so, and no blame for the delay can attach to the respondent.

The appellant having wholly failed to comply with the stipulation, the respondent is clearly entitled to have the appeal dismissed, and it is so ordered.

DUNBAR, CROW, ROOT, and HADLEY, JJ., concur.

FULLERTON, J. (dissenting). If the record in this cause presented the question decided by the majority, I would have no hesitancy in concurring in the conclusion reached, as I think a litigant may, for a valuable consideration, stipulate away his right of appeal, as he may other rights the law affords him. But as I view the record it presents an entirely different question than the one determined. In addition to the stipulation recited in the main opinion the parties, by their attorneys, at a later date, entered into another stipulation by which they agreed that the cause should be set down for hearing at the present session

of this court. Through the inadvertence of counsel this stipulation did not reach the clerk in time to comply with the rule, and he very properly did not place the cause upon the calendar. After it was learned by counsel that the cause was not placed on the calendar, the motion to dismiss was filed. At the hearing counsel for the moving party frankly stated that the purpose of these stipulations, as must be apparent from the very stipulations themselves, was to procure a hearing of the appeal at the present session of this court, and he proffered, in case the court would permit the appeal to be heard at this session, to waive his motion to dismiss and allow the case to go on the calendar, on such terms as this court might deem just. The opposing counsel on this statement being made consented to the imposition of termsin fact he had previously indicated that he ought to be punished by the imposition of terms rather than by a dismissal of his appeal. The question presented to the court, therefore, is not, may a litigant waive his right of appeal, but is, rather, will this court, to save the penalty of dismissal, consent that a cause not technically entitled to go upon the present calendar be put thereon?

On the question actually before us, I think the decision wrong. It seems to me, not only to strike too harshly at the particular litigant, but to be contrary to the purpose and spirit for which the court was created. This court, like an inferior court, has for its primary purpose the hearing of causes upon their merits, and when it dismisses appeals for a mere failure to comply with some rule governing the practice not going to its jurisdiction it does violence to the purposes for which it was created. Here the question presented is not jurisdictional. It is one on which the court may exercise its discretion, and to deny the appellant a hearing of his appeal on its merits seems to me to be so far arbitrary as to give him just grounds for complaint. In my opinion the cause should be placed on the calendar and heard at this term of court, and I therefore dissent from the ruling of the majority.

(44 Wash. 150)

STATE ex rel. McDONALD v. STEINER, Judge.

(Supreme Court of Washington. Oct. 18, 1906.) 1. MANDAMUS-INFERIOR COURTS-CONTROL OF

PROCEEDINGS.

Mandamus will not lie to control the discretion or revise the judicial action of an inferior court, though it is the proper remedy to compel such court to proceed with the trial of a cause when it refuses to do so either arbitrarily or on an erroneous view that it has no jurisdiction.

[Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Mandamus, §§ 61-64.]

2. SAME ASSESSMENT OF DAMAGES ON DEFAULT.

Where a plaintiff who has suffered a nonsuit in an action for the possession of land in which a temporary injunction was granted

brings a second suit against the defendant on the original cause of action after such defendant has instituted an action on the injunction bond filed in the first action, the trial court acts within its discretion in postponing the assessment of damages on a default in the action on the bond until the second suit on the original cause of action has been tried, and mandamus will not lie to compel such assessment of damages before trial of the second action.

[Ed. Note. For cases in point, see vol. 33, Cent. Dig. Mandamus, § 95.]

Application by the state, on relation of J. II. McDonald, for a peremptory writ of mandamus against R. S. Steiner, judge of the superior court. Application denied.

Peter McPherson, for plaintiff.

CROW, J. This is an application for a writ of mandamus to be directed to the Honorable R. S. Steiner, judge of the superior court of the state of Washington in and for Okanogan county, commanding him to proceed with the trial of an action. The relator, J. H. McDonald, alleges that he is the plaintiff in an action for damages on an injunction bond now pending in the superior court of Okanogan county, wherein C. A. Blatt, as principal, and Burt Hawthorn and H. G. Bragg, as sureties, are defendants; that after personal service the defendants filed their motion to quash the summons; that prior to the hearing of said motion the relator filed his motion for a default; that the motions for default and to quash service were heard and overruled, the defendants being granted 15 days within which to plead; that, the defendants having failed to answer or demur, the relator filed a second motion for default; that prior to the hearing thereof the defendants demurred to the complaint; that afterwards the second motion for default was granted, whereupon the relator moved the court to impanel a jury to fix the amount of his damages; that the defendants made an application to set aside the default, which application was, on February 13, 1906, denied. and the cause was continued until the May, 1906, term of the court; that on May 9, 1906, the relator renewed his request to the court to set a time for taking evidence in support of his claim for damages, but that the respondent peremptorily refused to set any time for the taking of evidence, and also refused to hear the cause until another action wherein C. A. Blatt was plaintiff and the relator J. H. McDonald was defendant should be tried and determined. Upon the relator's application an alternative writ of mandamus was issued, directing the respondent to proceed with the trial, or appear in this court and show cause why he should not do so. The respondent has filed his answer, from which it appears that during the year 1905, one C. A. Blatt, being the C. A. Blatt mentioned in the relator's affidavit, instituted an action in the superior court of Okanogan county against J. H. McDonald, the relator herein, to determine Blatt's right to the ex

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clusive possession of a tract of land embraced within certain mining claims in Okanogan county; that in said action a temporary order was granted, enjoining McDonald from fencing the land in controversy; that an injunction bond was given, in which Blatt was principal and Hawthorn and Bragg were sureties; that, upon trial, a nonsuit was entered upon the motion of McDonald, the action was dismissed, and the restraining order was dissolved; that the action now prosecuted by McDonald, concerning which complaint is made herein, was brought on the injunction bond to recover damages against Blatt as principal and Hawthorn and Bragg as sureties; that shortly thereafter Blatt instituted a second action against McDonald, setting forth the same cause of action alleged in his former suit, but that issue of fact has not been joined therein; that at the May, 1906, term, McDonald demanded of the respondent that his damage suit be set for trial; that thereupon the respondent stated to McDonald that in respondent's opinion McDonald's right to damages would depend in a large degree upon a determination of the issue whether Blatt was in fact the true owner of the mining claims during the time involved in the controversy; that the question of Blatt's ownership and right of possession was raised in his second action against McDonald; that respondent considered it necessary to determine such question before there could be an intelligent consideration of McDonald's claim for damages; that, if McDonald would join issue with Blatt in his second action, the court would set both cases for trial and would either try them together or in consecutive order, the respondent's intention being to first try the Blatt case; that the respondent had declined to set the damage suit for trial until both actions were at issue; that respondent further stated to McDonald as a reason for his action that the increasing volume of business in the four counties of his judicial district made it necessary for him to economize his time as much as possible; that the two pending actions were between the same parties; that the same witnesses would be necessary in the trial of each; that the issues in the one would materially affect the issues in the other; and that he deemed it proper to set the two cases for trial at the same time.

This proceeding is now before us for determination upon the relator's affidavit and the respondent's answer. Certified copies of the pleadings and orders in the case of McDonald against Blatt et al. have been filed in this court for our consideration in connection therewith. These records show that the principal damages claimed by the relator, McDonald, in his action on the injunction bond, are alleged to have been incurred by reason of the loss of crops from the land involved in the controversy between himself and Blatt. The merits of the alleged right of Blatt to either ownership or possession were not determined

in the original action in which the nonsuit was granted, but the respondent contends that the same will necessarily be determined in the second action brought by Blatt against McDonald. Respondent doubtless entertained the view that, if Blatt was at all times entitied to the possession of the land, the amount of damages which the relator McDonald would otherwise be entitled to recover would be materially decreased. It is not necessary for us to pass upon the correctness of this view. It does appear, however, that the respondent, in refusing to immediately call a jury and try the cause, was exercising his judicial discretion. A writ of mandamus will not issue to control the discretion or revise the judicial action of a trial judge, although it is a proper remedy to compel a court to proceed with the trial of a cause when it refuses to do so, upon the erroneous view that it has no jurisdiction, or when it makes such refusal arbitrarily. Mr. Spelling, in the second edition of his work on Injunctions and Other Extraordinary Remedies, at section 1394, uses the following language: "Mandamus is the appropriate remedy at the hands of superior and supervisory courts to set the machinery of inferior courts in motion. It does not direct how such courts shall act, or to what effect they shall exercise their powers, but only to compel action when they refuse to act at all, and have come to a standstill. Superior courts having general superintending control of all inferior courts may, in the maintenance of such control, issue, hear, and determine writs of mandamus, whenever there is a failure or a refusal of an inferior tribunal to act in the matter in which it is its plain duty to act and its refusal deprives or bars any one of a substantial, legal, or equitable right." Again, at section 1409, the same author says that the granting of a continuance or a stay of proceedings is for the most part a matter within the discretion of inferior courts, not subject to control by mandamus. "As a general rule a continuance should be granted upon facts that show that justice requires that the cause should await the trial and conclusion of another between the same parties; but the parties to the two actions must be identical, the issues must be the same, and it is essential that the entire relief demanded and sought for in the first action can be awarded in the other. It seems that the granting of a continuance or motion to stay in such cases is governed by the same rules as in the plea of another action pending, and the test lies in the fact whether the evidence would support both actions. The granting or refusal of a stay of proceedings in such cases is in a measure discretionary with the court, but this discretion should not be so extended as to deprive a party of all remedy for his cause of action." 9 Cyc. 88, 89.

We think the respondent was exercising his judicial discretion in refusing to impanel a jury to assess damages until an issue could

be obtained and trial also had in the second action brought by said Blatt against McDonald, and we fail to find that he acted arbitrarily, or that he has abused such discretion. The parties and the issues in the two actions are substantially the same, and it may be that before entire relief can be granted the second action instituted by Blatt against McDonald should be tried. The respondent has not arbitrarily refused to proceed, nor has he refused to take jurisdiction. If the relator is anxious for a trial, he can obtain the same at an early date by forcing an issue in the second action brought by Blatt. When he does this, the respondent will proceed to try both actions with such promptness as the business of his court will permit.

The application for a peremptory writ is denied.

MOUNT, C. J., and ROOT, DUNBAR, RUDKIN, FULLERTON, and HADLEY, JJ.,

concur.

(44 Wash. 179)

MCALLISTER v. SEATTLE BREWING & MALTING CO.

(Supreme Court of Washington. Oct. 19, 1906.) 1. NEW TRIAL-TIME FOR APPLICATION-EXTENSION.

The trial court has power to extend the time in which a motion for a new trial may be filed notwithstanding the statute requiring a judgment on a verdict to be entered immediately on the return of the verdict.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. New Trial, § 242.] 2. NEGLIGENCE - DANGEROUS CARE REQUIRED PLACES ATTRACTIVE TO CHILDREN.

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MACHINERY

Where dangerous machinery, of a character likely to excite the curiosity of children and allure them into danger, is left unguarded in an exposed place where children are likely to be, though on the premises of the owner, and a child is attracted to it and meets with injury, the owner is liable.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 33, 34, 21.]

8. SAME QUESTIONS FOR JURY.

Whether a sheave wheel over which passed a pulley used in moving cars along a railroad track belonged to the class of dangerous machinery, whether it was attractive or alluring to children, and whether it was placed and operated without guards so close to a public highway that it must have been foreseen that it would attract and injure a child nine years old, were questions for the jury.

[Ed. Note. For cases in piont, see vol. 37, Cent. Dig. Negligence, § 313.]

Appeal from Superior Court, King County; Geo. E. Morris, Judge.

Action by Orville McAllister, an infant, by his guardian ad litem, Lavica McAllister, against the Seattle Brewing & Malting Company. From an order granting a new trial after verdict in favor of plaintiff, he appeals. Reversed, with instructions to enter judgment on the verdict.

John W. Roberts, for appellant. C. A. Reynolds and W. H. Brinker, for respondent.

FULLERTON, J. The appellant, a minor of the age of nine years, lost two of his toes on a pulley or sheave wheel operated by the respondent, a brewing company, and brought this action to recover for the injury suffered. The pulley in question was placed in the center of one of the spur tracks of the Northern Pacific Railway Company, and was used by the respondent in connection with a wire cable and donkey engine to move cars up and down the track for the more convenient operation of its brewing plant. The brewing plant of the respondent is situated at Georgetown, in King county, just east of the main tracks of the railway company which run parallel with, and immediately in front of, the plant. There is a street in Georgetown called Nora avenue which runs at right angles to the railway tracks crossing them just south of the brewery company's plant. This street had never been condemned across the railway company's right of way, and all that part lying east of the track had been vacated by ordinance of the town council some time prior to the accident, the vacated portion becoming thereby the private property of the respondent. The street, however, was not closed to travel, and at the time of the accident was used by a considerable number of the people who found it the most convenient means of passing to and from their own property and the business section of the town. The street had never been improved, and travel over it took the most convenient way. Where the street abutted on the railway right of way there was an embankment of considerable height, to avoid which the travel turned, one track going next to the brewing company's property and the other some distance the other way, neither passing any nearer than perhaps 25 feet of the center of the street where it crossed the right of way. The sheave wheel in question was placed in the center of the street on the railway company's right of way, where these tracks diverged, having been placed there by the respondent with the railway company's permission. It had no covering or protection of any kind, and was used at all times of the day the business of the respondent required it. While motionless the pulley was harmless, but when in motion it had all the dangers incident to machinery of its class. Just prior to the accident the minor appellant in company with another boy of about his own age, while passing over the railway track on the path next the respondent's property, was attracted to the wheel and went over to examine it. The boys do not agree in their testimony as to the conditions immediately preceding the accident; but the boy who accompanied the appellant seems to have the clearer idea of what happened. He testifies that the cable was being drawn slowly through the pulley when they reached it, and that the appellant put his foot on when it started up rapidly drawing

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