former against the change of a few rods in the position of the dam, whereby the head of the ditch was moved up the creek a short distance, but no active nor material steps were taken by Ellis, and the mill was operated and run by said ditch and water-power from the last date above given, (September, 1878,) until the year 1887, when this suit was brought.

defendants (appellants) from obstructing or stated, Ellis apparently acquiescing. There interfering with plaintiff in the full use and were occasional contentions between Ellis and enjoyment of such ditch and water-right the company, and a protest on the part of the claimed by plaintiff, and from interfering with plaintiff and its agents from going upon the right of way, and repairing such ditch, etc., and for further relief. The findings of the court below were all favorable to plaintiff, from which the defendants appeal. The action, while partaking somewhat of the character of one to quiet title, is merely an ordinary application addressed to a court of equity In the forgoing statement we have sugto prevent, by injunction, continuous wrongs gested that this is not merely an action to in the nature of nuisances, and interference quiet title, and but little need be said in diswith the vested rights of another. It appears posing of that proposition and the argument that in the spring of 1878 the land above re- presented by appellants, based on the want ferred to was public and unoccupied lands of of allegation and proof of possession by apthe United States. On May 28th of the same pellee, to sustain an action to quiet title. year, Ellis filed upon this land, and began a However, if consideration of the case in that building, and shortly thereafter took up his particular is at all necessary, the statement residence thereon. He made final proof on and showing made by appellee that it is in April 3, 1880. Patent was issued to him possession and operating said mill by the use November 10, 1882. The patent has the usual of this water-ditch is a sufficient showing exemption of "vested and accrued water- of possession of the ditch to meet fully the rights and rights to ditches and reservoirs objection made, while the statement of deused in connection therewith, as recognized fendant Ellis of forcibly preventing appellee by local customs, laws, decisions," etc., pro- from going along said ditch, and keeping it vided for in act Cong. July 26, 1866. De-in repair, and using such water-way, by which fendant Ellis, with Ritter and Steen, in 1878 the mill is operated,—if it has the right to organized a company or partnership in a plan- use the same,-clearly shows a condition of ing-mill, etc., to be located near Pomeroy. things which, from their very nature, a court The water-power for same, by which it was of equity can alone correct by injunction. to be operated, was to be taken from Pataha To the further contention of want of explicitcreek, which runs through a corner of this ness in the acts asked to be enjoined, a moland, thence to be carried by ditch across said tion at the proper time might have reached land, and they thereupon ordered machinery this, but such objection now made comes too for said mill, built a ditch across said lands, late. Neither do we consider the change from Pataha creek to the mill-site, and also a made in the head of the ditch as material or dam in Pataha creek to turn the water into said affecting the results. It in no way changed ditch, at an expense of about $300. Ellis, the course or general nature of the ditch, the appellant, was an active agent in selecting amount or flow of water,—a slight change the mill-site, arranging the course of the ditch, was made necessary, through wash-outs, at water-right, etc., and about this time was the head, not at all changing the general remaking his own pre-emption, as above-stated. 'sults, as we have stated,-nor affecting maIn August, 1878, Ellis joined Ritter and terially the rights of the parties. If such Steen in a sale to one B. B. Day, as trustee taking and use by appellee was right, the for several others, by which the work done slight change in the dam necessitated may on the ditch, the machinery ordered, the tools properly be considered as an incident of such purchased, and all debts incurred, in all use, as, when a right is acquired, all things amounting to about $3,200, were turned over necessary to a complete enjoyment of that to said Day, with all the rights that said com- right go with it. From the conduct of said pany had acquired in such ditch, mill-site, appellant, as shown in the above statement of facts, sufficient appears to justify athirming the judgment of the court below on the ground of estoppel alone, viz.: Ellis making his pre-emption filing, and, contemporaneous therewith, associating himself with Steen and Ritter in constructing the mill, (of which this water-ditch was as necessary and as essential a part as the machinery of the mill itself,) Ellis being, in fact, the active agent of this company, thereafter selling his interest in the same, and then standing passively by and tacitly acquiescing while large sums are being expended and valuable rights acquired, to attempt, at this late day, and after all this, to claim superior rights, under his patent of November, 1882, (final proof made 1880,) claiming relationship back to his declaratory

etc.

This sale to Day subsequently results in the title which is now held by the Pomeroy Improvement Company, appellee, and under this transfer an amount of something like $4,500 was subsequently expended in all, and the mill, as now constructed, was completed and begun operations about September 10, 1878. Later, and after said sale to Day, the defendant Ellis set up a claim to said ditch by reason of his pre-emption, etc., and was paid a price for such claim. Again, and when the then owners were completing the ditch, Ellis gave a second notice of a claim based upon his pre-emption, but through fear of possible trouble and complications arising about his patent, not then issued, withdrew this claim, and the work was completed as heretofore

prior appropriation had occurred,) the mere taking up of the land did not work itself a prior appropriation, nor even indicate any purpose so to do; but his not doing so, on the contrary, left such rights subject to appropriation, until he made fina! proof and thereby acquired a vested right, by any one who complied with the law or local custom in an ap

statement of May, 1878, is to ignore the com- | customs and appropriations. It would also monest principles of equitable estoppel. The be subject to such acquisition up to the time fact that he files upon this land, and, simul- of final proof, when, and only when, such taneously therewith, he and others in com- privilege becomes a vested right. It is up to pany assert and appropriate this water-right, such time, therefore, subject to water-rights under an apparently amicable arrangement, being acquired therein by others, unless such estops him; his subsequent sale to others of settler or pre-emptor promptly exercises his these rights estops him; and, finally, his tacit water-right, and makes his appropriation. consent to it all, by standing by and seeing val- While, therefore, Ellis, at the time of filing, uable interests accumulating here, all estop might have also appropriated the water, and him. As said in Kirk v. Hamilton, 102 U. S. thus acquired water-rights by taking steps 79: "He remained silent while the other ex-sufficient to assert his claim to these, (if no pended large sums in improvement, and in effect disclaimed title in himself; he was silent when good faith required him to put the other on guard; he should not now be heard to say that that is not true which his conduct had unmistakably declared to be true, and on the faith of which others acted." The doctrine of relation of rights back of the patent we will refer to later. This doctrine may be in-propriation of such water-right. Appropriavoked when it is necessary to do exact jus- tion, as herein used, may be defined as the tice, but it will not be invoked to do injus- intent to take, accompanied by some open, tice. As is said, “the doctrine of relation is physicial demonstration of such intent, and a fiction of law adopted by the courts solely for some valuable use. It is proper to add for the purpose of justice." Gibson v. Chou- that such intent or demonstration must be teau, 13 Wall. 101; Hill v. Lenormand, 16 followed up with reasonable diligence, and Pac. Rep. 266; Frisbie v. Whitney, 9 Wall. consummated without unnecessary delay. As 187; Farley v. Irrigating Co., 58 Cal. 142; we have stated, from the time of his filing Osgood v. Mining Co., 56 Cal. 571. It could and up to the time of final proof, (April 30, not be invoked to avoid an equitable estoppel 1880,) Ellis' rights were all uncertain. He so clearly right as here. The patent issued might have abandoned or failed to perfect his to Ellis, and on which he relies, excepts, un-claim; the government might have withder the act of congress of 1866, "water-rights, drawn the land from sale, or through other ditches, and rights of way for such, vested causes he might have been defeated; the gov or recognized by local customs, laws," etc. ernment might have sold or granted the land Appellee's rights were vested in it in 1878 by to another. Until final proof, then, he had the unquestioned appropriation of this water, no vested right and his patent could not, the building of the mill, ditch, dam, etc. therefore, relate back, under any circumThese rights were fully recognized by the lo- stances, to his original filing, and back of cal customs which exist, i at that time of this final proof, while long prior to this, by taking water over the public lands, as here. the actual appropriation in 1878, the comThe exception in the patent of Ellis recog-pany (of which he was one) had acquired a nizes this. The rights of appellee, being rec-positive, certain, and vested right. Thereognized by custom, were excepted from the fore, regardless of Ellis' subsequent acts and patent, and the appropriation of the water his estoppel, which we have first referred to, by appellee's grantors simultaneously with we have no hesitancy in saying that on the Ellis' filing on the land; for the company (Ellis, Ritter, and Steen) had quite as much right, through recognized custom, to take the water-right as had Ellis to take the land. These two being, as stated, exercised together, the company could acquire as complete a right to the water as Ellis did to the land.

principle alone of prior appropriation we concur in holding that appellee's right was superior, being prior in point of time. It is, however, a satisfaction to know, in this case, that such prior legal right is so completely supported and fortified by the question of the estoppel of Ellis, through his active interest in said company, and his subsequent acts, referred to, which alone would be ample to base like results upon. The decree of the lower court should be affirmed.

But in fact Ellis had no vested right which he could assert against the company's waterright prior to April 13, 1880, that being the time when he made final proof, while they acquired a vested right prior to this, (spring of 1878,) by exercising an actual appropriation of this water. A mere entry upon the public lands gives no vested rights against (Supreme Court of Washington Territory. Jan.

the government until final proof. It makes a prior right of pre-emption, and establishes a privilege as against other claimants, subject until final proof, etc., to the absolute dispossessing power of congress. 9 U. S. St. p. 195. Land thus occupied is subject to the acquisition of prior water-rights, under local

(1 Wash. St. 559) LAURENDEAU v. FUGELLI.

Term, 1889.)

PUBLIC LANDS-ENTRIES-REPLEVIN.

1 An entry upon inclosed and improved land occupied and claimed under a certificate from a railroad company is not authorized by 23 U. S. St. at Large, 321, forbidding the fencing of public land, or preventing settlement thereon, but the person so entering is a naked trespasser.

into.

ty.

Appeal from district court, Kittitass coun

Replevin by P. Laurendeau against Peter Fugelli. Plaintiff appeals.

2. In replevin for hay which plaintiff claims by | and enter such, with or without violence, and reason of his alleged ownership of the land on which it was grown, and of which defendant has acquire rights. The announcement of such possession, the title to the land may be inquired a principle as this is sufficient to refute itself. It is shocking to the moral sense, and would encourage trespass and violence, leading to the gravest of crimes. As suggested, the facts of that case may have justitied the decision which was arrived at, but such a rule, announced for general application, cannot now, and never will, be followed. In any event, it is merely a ruling of the interior department, and is no precedent to control our judgment here. As is well known from the circular of April 5, 1885, the entry, countenanced by bona fide settlers upon unlawfully inclosed lands, was where large areas of pub

Allen, Whitson & Gilliam, for appellant. Daniel Gaby, for appellee.

ALLYN, J. This action was brought by appellant in the district court of Kittitass county to recover possession of 75 tons of hay of the value of $500; the plaintiff claiming to be the owner of the soil, and, by vir-lic and unoccupied lands had been inclosed tue of this, of the hay. It appears that prior without a shadow of claim or right by stockto 1883 the land upon which this crop was men; and to place such persons and such grown had been contracted by the Northern cases outside of the general rule was necesPacific Railroad Company to one Wilcox, who sary, right, and proper. They were no more sold it to one Amlin. The latter, in 1883, entitled to protection than any other offender conveyed it to appellant, (plaintiff.) The against the law. To invoke the act of 1885 land was seeded to grass, fenced, and other- as a license to opposing claimants, pre-emptwise improved. In May, 1885, appellee ors, and the like, of a law unto themselves, broke down a portion of the fence, entered that either may break down the inclosure of upon the land, and took possession,-pre- the other and lawfully enter, is to use a rule sumably on a claim of pre-emption, although made for desperate cases, requiring desperate there is no evidence as to such claim. Ap- remedy, and in itself exceptional; to overturn pellant now sues for the hay cut in 1887, or the law; to bring chaos instead of social orits value, as stated. In the court below, der; to make the court a useless formality, upon the close of plaintiff's case, a motion and the law an object of contempt. This being made for a nonsuit, the same was question has been passed upon in 96 U. S. granted, and from this and the overruling of 513-520, incl., by Justice MILLER, in Athera motion for a new trial plaintiff appeals. It ton v. Fowler, a case of replevin for hay cut is urged by the appellee that this is, in fact, under circumstances quite similar to this. a trial of title to the land, and that this The question of title was there looked into, question cannot be considered in an action as here, and the results of the cases are alike of replevin. Also, that the appellant was generally, as they are in the facts. The within the prohibition of the act of congress learned judge, whose reputation is not limforbidding the fencing of public lands, or pre-ited by the boundaries of our own country, venting settlement thereon. 23 U. S. St. at says, page 516: "It is not to be presumed Large, Feb. 25, 1885, p. 321. The contention that congress intended, in the remote regions of appellee that the title to realty should not where these settlements are made, to invite be tried in a replevin suit is correct in the ab- forcible invasion of the premises of another stract; but the title may certainly be looked in order to confer the gratuitous right of prefinto to determine the rights of the parties, erence of purchase on the invaders. In the and incidentally tried in a transitory action parts of the country where these pre-emptions when necessary to establish the title to per- are usually made, the protection of the law sonal property severed from the realty. Wells, to rights of person and property is generally Rep. §§. 79, 80. See, also, Atherton v. Fow-but imperfect under the best of circumstances. ler, 96 U. S. 513,-an action in replevin, in It cannot, therefore, be believed, without the which the title to realty is practically determined,--a case so like the one at bar that it will be referred to later in extenso.

strongest evidence, that congress has extended a standing invitation to the strong, the daring, and the unscrupulous to dispossess by force the weak and the timid from actual improvements on the public land, in order that the intentional trespasser may secure by these means the preferred right to buy the land of the government."

In relation to the contention of appellee, viz., reliance upon the act of congress above referred to, our attention is called to a late decision from the department of the interior, dated October 2, 1888, reported in Copp's Land-Owner, vol. 15, No. 15, (Stoddard v. In the case at bar appellant was in peaceNeigel,) the syllabus of which is: "A settle-able possession by purchase from the holder ment made without violence, within the un- of a certificate from the railroad company. lawful and unauthorized inclosure of another, He and his grantors had for some years is valid," etc. The facts of that case would appear sufficient to sustain the conclusions arrived at; but it will not do to say broadly that parties may judge for themselves as to the lawful or unlawful inclosure of others,

plowed and seeded it to grass, inclosed it with a fence, and made other improvements thereon. To allow such an occupation and possession to be disturbed by one who breaks down a fence, and violently seizes it, we can

the discretion of the court, and his refusal to hear the other witnesses was not error.

2. In a criminal case, good character should be considered by the jury, and, on a reasonable doubt as to the guilt of the accused, it is their duty to acquit.

Appeal from Fourth district.

Turner, Forster & Turner, for appellant. J. B. Metcalf, Atty. Gen., and W. B. Jones, for the Territory.

not consent to. In the case in 96 U. S., from which we have just quoted, the learned judge, under almost exactly parallel facts, says: "Unless some reason is shown, these were the persons (those who had settled on it, improved and cultivated it) entitled to make pre-emption, and no one else. But suppose they were not: does the policy of the preemption law authorize a stranger to thrust these men out of their houses, seize their improvements, and settle exactly where they BURKE, C. J. John Klehn, the appellant, were settled, and by these acts acquire the was indicted for the crime of murder in the initiatory right of pre-emption? The gener- first degree. He was tried upon that indictosity by which congress gave the settler the ment, convicted of manslaughter, and judgright of pre-emption was not intended to give ment was given against him. He appeals to him the benefit of another man's labor, and this court. Upon the trial, the territory ofauthorize him to turn that man and his fam-fered proof of the dying declarations of the ily out of their home. It did not propose to deceased. Before admitting this evidence, give its bounty to settlements obtained by the court properly instituted a preliminary violence at the expense of others. The right examination as to whether the alleged declato make a settlement was to be exercised on rations were made by the deceased under a unsettled land; to make improvements on un- sense of speedy death. This examination improved land. To erect a dwelling-house was not conducted in the presence of the did not mean to seize some other man's dwell-jury; the court, on motion of the defendant, ing. It had reference to vacant land, to un- having previously ordered the jury to retire. improved land; and it would have shocked The examination made by the court seems to the moral sense of the men who passed these have been very full and thorough, the testilaws, if they had supposed that they had ex-mony on this issue covering six pages of the tended an invitation to the pioneer popula-record. tion to acquire inchoate rights to the public counsel for defendant, and the court, being lands by trespass, by violence, by robbery, satisfied that the declarations were made by by acts leading to homicides, and other crimes deceased under a sense of impending dissoluof less moral turpitude." We quoted largely tion, ruled that they should be admitted in from Justice MILLER, as that case is a clear evidence. The defendant thereupon offered precedent for this, and also because it is based "to prove by other witnesses, before the teson a similar state of facts. The powerful and timony of this witness should go to the jury, convincing reasoning of the learned justice, the nature of the wound; that the intestines breathing as it does a just indignation against were not cut, and that the wound was not outrage and oppression, thoroughly com- necessarily fatal; that nothing was said on mends itself to us, and, as concluded in that the part of the attendants or physicians that case, so in this. It follows that the defend- would give rise to the belief in the mind of ant could not have made any lawful entry on the deceased that he was going to die, but, the land where the hay was cut. No law ex- on the contrary, expressions were indulged ists which gave him any right to such entry. in by his physicians that he would recover, He was a naked trespasser, making an un- and that he expressed the belief that he warranted entry upon the inclosure of an- might possibly recover. The court refused other; an inclosure and occupation of years, to hear this testimony, and appellant insists upon which time, labor, and money had been that this refusal was error. When the adexpended. In such wrongful attempt to seize missibility of dying declarations is brought the fruits of another man's labor there could in question, it is the duty of the court to debe no bona fide claim of right whatever. The termine, as a preliminary issue, whether the action of the court below in granting a non-alleged declarations were made by the desuit to the defendant was error, and the judgment must therefore be reversed.

(1 Wash. St. 584)

TERRITORY v. KLEIN.

The witness was cross-examined by

ceased in view of speedy death. The extent of such preliminary examination is a matter within the judicial discretion, and reviewable here only when it appears that such discretion has been abused. There was no abuse of discretion in this case. The trial court seems to have conducted this preliminary in

(Supreme Court of Washington Territory. Jan. quiry properly, and with a tender considera

6, 1859.)

HOMICIDE-DYING DECLARATIONS-CHARACTER.

tion for the rights of the defendant. The court had a right, in the exercise of a sound

1. On a preliminary issue, to determine whether judicial discretion, to say how far the exalleged dying declarations were made by the de-amination should extend, "in order to ascerceased in view of speedy death, the court, after sending the jury out, made a full and thorough ex-tain with accuracy and reasonable certainty amination, the witness being cross-examined by the mental condition and belief of the declardefendant's counsel. Defendant offered to prove ant." People v. Smith, 104 N. Y. 491, 10 by other witnesses that the deceased at the time N. E. Rep. 873. It may be added here that he made the declarations expected to recover. Held, that the extent of the examination was in subsequently the defendant introduced on his

own behalf evidence of the dying declarations | not be seen by the gravel train until meeting it. of the deceased.

The second assignment of error relates to the refusal of the court to give the instructions asked for by the defendant, on the right of a person in defendant's situation, at the time of the killing, to act on appearances as they presented themselves to him. We think the charge of the court fully covered this point, and was in fact more favorable to the accused than the instructions asked for by his own counsel, and refused by the court. Upon the trial evidence was given as to the defendant's good character, and the instructions given by the court to the jury on that subject, and the refusal of the court to give the instructions asked for by the defendant, are assigned here as error. Evidence of the good character of the defendant is always admissible in a criminal case, and the correct rule as to the weight to be attached to this class of evidence was laid down by the supreme court of Iowa in the case of State v. Northrup, 48 Iowa, 583, where the court says: "Good character, like all other facts in the case, should be considered by the jury, and, if therefrom a reasonable doubt is generated in the mind of the jury as to the guilt of the accused, it is their duty to acquit." Com. v. Leonard, 140 Mass. 473, 4 N. E. Rep. 96. The charge of the court to the jury in this case comes within the rule. It is true that in the hurry of the trial the court may not have used the most apt and felicitous words in which to state the law on this subject, but, upon any fair construction of the whole charge, it must appear that the law was given correctly. Indeed, the charge of the court throughout was most strongly in favor of the defendant,--far more favorable to him than the instructions asked for by his own able counsel. There certainly was nothing in the charge, from beginning to end, to which the defendant could properly except. The exceptions to the refusal of the court to grant a continuance and to grant a new trial are not well taken. The showing in each case falls short of the requirements of the law, and the court properly denied both motions. We find no error in the record, and the judgment of the court below will there

fore be affirmed.

ALLYN and NASHI, JJ., concur.

(1 Wash. St. 599)

NORTHERN PACIFIC R. Co. v. O'BRIEN. (Supreme Court of Washington Territory. Jan. Term, 1859.)

MASTER AND SERVANT-NEGLIGENCE-PLEADING

-EVIDENCE.

1. Plaintiff, with others who were engaged in "surfacing" defendant's track, was taken to and from his work on a gravel train provided by defendant for the purpose, and while being so carried at the usual hour was injured by a collision with a "wild train," which had orders to flag the gravel train. The rules required flagging to be three-fourths of a mile ahead of the flagging train, but the wild train followed within 400 feet of its flag-man, whose signal, by reason of a curve, could

The engine of the wild train was disabled so that it could not start or stop promptly. The facts being undisputed, held, that a charge that the wild train had no business to be where it was when the collision occurred, but should have remained where it was when the flagman alighted until he had proceeded a sufficient distance forward, and that this was gross negligence on the part of those in charge, was not error; especially as the jury were afterwards cautioned against passion or prejudice. ALLYN, J., dissenting.

2. By one of defendant's rules, trains are to be run under the direction of the conductor, except when such direction conflicts with the rules, or involves hazard, when the engineer is equally responsible. Held, that the conductor and engineer of the wild train were not plaintiff's fellow-servants, or engaged in the same common employutory negligence. 3. Defendant has the burden of proving contrib

ment.1

4. Evidence of the defects in the engine was admissible, under the complaint, which alleged, generally, that the collision was caused by defendant's gross negligence, and, though the allegations were not broad enough to cover it, its admission would be no ground of exception under Code Wash. T. 8 105.

5. The complaint alleging that plaintiff was permanently disabled to follow his occupation, and rendered unable to earn a livelihood, evidence of his prior occupation and wages is admissible, and, the admission of the evidence would not be ground though such allegations were not broad enough, of exception under section 105.

Error to district court, Fourth district.

Action by David O'Brien against the Northern Pacific Railroad Company for inju ries sustained by the collision of defendant's gravel train, which was in charge of O. C. Hulett, with a "wild train." The complaint alleged "that while plaintiff was so being conveyed to his work by the defendant, and about two and a half miles from said station of Cle-Alum, in said Kittitass county, a collision occurred on the said railroad, and between said work train, on which plaintiff was being so conveyed, and a locomotive and tender coming from an opposite direction, under authority and direction of defendant, and meeting the said work train, which collision was caused by the gross negligence and carelessness of the defendant and its servants, and the plaintiff was thereby greatly injured. That his ribs were broken, his shoulders broken, his head and spine were bruised and fractured, and other parts of his body were bruised and fractured, from which injuries he suffered intense and long continued pain, and still suffers great pain, and will always continue to suffer great pain, and was permanently disabled from following his occupation, and rendered unable to earn a livelihood for himself." Defendant brings

error.

McNaught & Mitchell, and N. T. Caton, for plaintiff in error. Reavis, Mires & Graves, for defendant in error.

As to who are fellow-servants within the rule exempting the master from liability to one for injuries caused by the negligence of the other, see Anderson v. Bennett, (Or.) 19 Pac. Rep. 765, and note; Sullivan v. Railway Co., (Mo.) 10 S. W. Rep. 852, and note; Railway Co. v. Welch, (Tex.) Id. 529, and note; Railway Co. v. Farmer, (Tex.) 11 S. W. Rep. 156.