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property, and on February 14, 1903, a treas- erty at the tax foreclosure sale inured to the urer's deed therefor was issued to her. The benefit of her cotenants, and that such title tax sale was in all respects regular, other has not since lapsed either under the docthan that the land was sold for a sum in trine of laches or by the statute of limitaexcess of the amount due on the decree, "of tions. approximately 50 cents.” After the execu [1] It is a generally recognized rule that tion of the treasurer's deed Mrs. Ross assum- there is such a mutual relation between ed ownership of the entire tract, and on tenants in common of real property that April 7, 1909, conveyed the same by war one of such tenants cannot deprive his coranty deed to R. P. Waldron. The respond tenants of their interests in the common ent H. B. Waldron is the wife of R. P. Wal- property by purchasing an outstanding addron, and these respondents on March 19, verse title thereto, or by the purchase of an 1909, mortgaged the property to the respond- incumbrance thereon which is afterwards conent Ella Waldron, which mortgage had not verted into title, when the purchase is made been paid in full at the time of the com- for the benefit and protection of the common mencement of the present action on Decem-estate. The principle has been frequently recber 8, 1915. Since the execution of the tax ognized by this court. Cedar Canyon Con. deed Mrs. Ross and R. P. Waldron and wife, Min. Co. v. Yarwood, 27 Wash. 271, 67 Pac. as owners, have paid all of the taxes levied | 749, 91 Am. St. Rep. 811; Dahlstrom v. Beard upon and assessed against the property, and Fruit Co., 73 Wash. 13, 131 Pac. 450; Stoll "plaintiff has not, and his predecessors in in- v. Griffiths, 41 Wash. 37, 82 Pac. 1025; Burterest have not, paid or undertaken to pay nett v. Ewing, 39 Wash. 45, 80 Pac. 855; Anany taxes on the said property since the exe derson v. Snowden, 44 Wash. 274, 87 Pac. 356, cution of the said tax deed.". The appellant 120 Am. St. Rep. 998; Stone v. Marshall, 52 acquired such interests in the property as Wash. 375, 100 Pac. 858; Trumbull v. Bruce, he possesses from Arch Murray and the heirs 64 Wash. 614, 117 Pac. 472. at law of Frank and Alex Miller. He made [2] But it is not meant by the rule that no tender of the taxes paid by the respond- the purchase is void, or that the title acquirents and their predecessor in interest, but in ed by the purchase vests by operation of his complaint avers that he is ready and law in the cotenants. The cotenants may bewilling to pay the amount of the taxes, in- lieve that the property is not sufficient in terest, costs, and accrued costs becoming due value to justify the expenditure, or they may and payable on the property on account of believe that the common title is the paralevies of taxes made against the property mount title; hence the title acquired by the since the year 1896.

purchaser is not forced upon them. The rule The complaint contains allegations also but gives the cotenants the right to share in concerning the relations existing between the benefits of the purchase, a privilege Mrs. Ross and the respondents Waldron, and which they may accept or reject. At most, concerning their purposes in acquiring the the title acquired by the purchase is voidtitle to the property through the tax fore-able not void, and they who would complain closure proceedings, but, as no stress is laid must elect whether they will avoid it or not. on these allegations in this court, they need Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, not be further noticed.

23 L. Ed. 328; Starkweather V. Jenner, 216 The complaint contains no allegation con- U. S. 524, 30 Sup. Ct. 392, 54 L. Ed. 602, 17 cerning the possession of the property since Ann. Cas. 1167. the time of the tax foreclosure sale. It is [3] It is a settled rule also that, if the coinferable from the allegations, however, that tenant would share in the adverse title acneither the appellant nor any of his pred- quired by the purchasing tenant, he must pay ecessors in interest has ever had posses- or tender payment of his proportionate share sion of it, and the most favorable deduction of the price necessarily expended in acquirthan can be drawn in his favor is that the ing the title, and must exercise the privilege land has been at all times vacant and unoc within a reasonable time. Starkweather v. cupied.

Jenner, supra; Freeman on Cotenancy, $ The demurrer was based on two statutory 156. What will constitute a reasonable time grounds of demurrer, want of facts sufficient depends much upon the facts of the particuto constitute a cause of action, and the stat- lar case, but the authorities all agree that ute of limitations. The record does not dis- whatever delay is occasioned must be entire close upon which of these the trial court ly consistent with fair dealing, and not atrested its conclusion, but the appellant con- tributable to an effort to retain the advantends that the conclusion is not sustaina- tages of the purchase while the responsibilible upon either of the suggested grounds. ties attending upon it are shirked. More specifically, he contends that Mrs. Ross [4] In the light of these principles, it became a tenant in common with the pred- seems to us that the judgment of the trial ecessors in interest of the appellant when court can be rested on the ground of lachshe acquired the interests of R. P. Waldron es if not strictly upon the statute of limitaon June 20, 1895, that her subsequent ac- tions. From the dates given it will be ob quisition of the legal title to the whole prop- served that nearly 20 years bad elapsed be

tween the time the appellant's predecessors, she learned of said purchase to the date of the in interest made default in the payment of commencement of this action. As this is an actaxes and the time the appellant sought by

notion wherein she invokes equity, it was incum

bent upon her to show that she had done equity this action to redeem therefrom. This is by paying, or promptly offering to

by paying, or promptly offering to pay, her almost twice the period of the statute of portion of the purchase price." limitations for the recovery of real property held adversely. More than 12 years have

The case of Dahlstrom v. Beard Fruit Co., elapsed since the respondents' predecessor

73 Wash. 13, 131 Pac. 450, does not support

'the appellant's contention, nor does it hold in interest acquired the property at the tax foreclosure sale. At that time they paid the

that the tenant in common acquiring the ad

verse title cannot in any case assert such accumulated taxes, and have since regularly

title short of the period of the statute of limpaid all of the taxes subsequently levied upon the property. They have at all times

itations. In that case the tenant was in since the sale claimed exclusive ownership

possession of the land, collecting the rents

and profits. The rentals had been more than of the property, and have otherwise exercised acts of ownership over it consistent

sufficient to pay the taxes, and the tenant only with a claim of exclusive ownership.

had led the cotenant to believe he would pay The property consists of city lots in a grow

them. It was held that under such circuming city, and its value must necessarily have

stances he could not suffer the taxes to befluctuated, although having a general tend

come delinquent, purchase at the tax sale, ency to increase. It must be remembered

and assert the title so acquired as against also that the tax foreclosure sale at which

the interests of the cotenant short of the the predecessor in interest of the respond

| period of the statute of limitations. This is ents purchased the property was not the or

not the case here. There was here no posdinary tax sale made upon a general notice

session of the property nor rents nor profits, of more or less publicity, but was a judicial

nor did the tenant agree to pay the taxes, sale founded on a decree of foreclosure, in

in and the period elapsing since the tax sale an action in which the cotenants were made

and the open assertion of title exceeds the defendants, and in which all of them found |

| period of the statute of limitations. within the jurisdiction of the court were per

[7] Nor does the fact that the property sonally served with summons. They cannot

was sold for approximately 50 cents in extherefore plead, and do not plead, want of

cess of the amount of taxes due render void notice of the sale. They were charged with the tax foreclosure proceedings or the title notice also that on each succeeding year acquired thereby. Cases can be found where, there were taxes levied against the property in proceedings wholly ex parte, the courts which they must pay if the title to the prop

have set aside tax sales for excessive exacerty was to be preserved in them, and they

tions where the excess was perhaps no great. are chargeable with knowledge that the land er than the excess shown here, but the caswas vacant land, producing no rental, and es are not in accord with the weight of auif the taxes were being paid by their coten thority or the better reasoning, even in the ants, they were being paid from the private

instances to which they are strictly applicafunds of such tenants which they were

ble. We cannot think, however, they have equitably bound to proportionately reim

application to a procedure such as our statburse.

ute prescribes. Here the foreclosure is a [5, 6) Equity does not oblige a cotenant to judicial proceeding, had after the service of pay out his money to protect the common ti a summons, in which the adverse party may tle. It rather permits him to do so and con- | | appear and contest the foreclosure. The verts him into a trustee when he has done sale is made after judgment in the cause, so. But it equally lays an obligation upon and the opportunity is given to appear and the other cotenants to reimburse him for question the regularity of the sale before it his outlay, and a failure to reimburse him becomes final by the execution of a deed. within a reasonable time will be taken as Manifestly, it seems to us, it would be a an election on their part to allow him to perversion of the statute to hold that an irtake the title he has acquired for his in regularity such as this renders the entire dividual use. Wilson v. Linder, 21 Idaho, proceeding void. 576, 123 Pac. 487, 42 L, R. A. (N. S.) 242, It is our conclusion that the complaint Ann. Cas. 1913E, 148,

shows no ground for a recovery of the propIn Kershaw v. Simpson, 46 Wash. 313, 89erty, and that the judgment should be afPac. 889, a case similar in principle to the firmed. one at bar, we used this language:

It is so ordered. “Appellant, after learning of the purchase of the property by respondents, did not tender any portion of the purchase price, although some

ELLIS, C. J., and PARKER, MOUNT, and thing over three years elapsed from the time HOLCOMB, JJ., concur.

Wash.) FIREMEN'S FUND INS. CO. v. OREGON-WASHINGTON R. & NAV. CO.

763

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(96 Wash. 113)

the owner of the grain the amount of the FIREMEN'S FUND INS. CO. V. OREGON loss, and, by reason thereof, was subrogated WASHINGTON R. & NAV. CO.

to whatever rights the owner may have had (No. 13872.)

against the defendant company; and that (Supreme Court of Washington. May 2, 1917.) | the company was guilty of negligence in that 1. RAILROADS 484(1)–FIRES NEGLIGENCE

it caused sparks and cinders to be emitted -QUESTION FOR JURY.

| from its locomotive, thereby setting fire to Evidence as to a fire starting 140 feet from the wheat field. The defendant denied any a railroad being negligently set from a locomo

negligence on its part and affirmatively pleadtive held sufficient to go to the jury. [Ed. Note. For other cases, see Railroads

ed that on July 26, 1915, the day on which Cent. Dig. 88 1740, 1746.]

the fire occurred, one of defendant's east2 RAILROADS 484(4) - INJURIES' FROM

bound passenger trains, drawn by engine No. FIRES-INSTRUCTIONS.

262, passed through Boles Station at about The question of a locomotive, claimed to

the hour of 10:40 a. m.; that this was the have set a fire, being equipped with a proper

only locomotive of the defendant passing in spark-arresting device, should not be submitted to the jury, all the evidence agreeing that it that vicinity for a considerable time prior had the best known appliance on the market, to the discovery of the fire; that locomotive and the questions open being proper adjust No. 262 was of first-class construction, was ment of the appliance and operation of the en

equipped with suitable and proper spark-argine. (Ed. Note. For other cases, see Railroads,

resting apparatus, which was in place and Cent. Dig. $ 1743.)

in good repair; and that the engine was 3. RAILROADS C 463–FIRES-NEGLIGENCE | carefully and skillfully operated. The afDEGREE OF CARE REQUIRED.

firmative matter in the answer was denied . Relative to liability for fire set by locomo- by the reply. Upon the issues thus joined tive, a railroad is not roguired to exercise the · highest degree of care in its operation, but only | the cause was tried to a jury, which returnreasonable or ordinary care, that degree which ed a verdict in favor of plaintiff. From the an ordinarily careful and prudent person engag- judgment entered upon the verdict, the deed in the samo business would exercise under similar circumstances and conditions, though

fendant appeals. this is unquestionably a high degree of care,

[1] At the conclusion of the testimony the because the risk when care is not observed is defendant moved the court for a directed very great, and the degree of care in all cases verdict in its favor upon the ground of the must be commensurate with and correspond to the danger incident to the failure to exercise

insufficiency of the evidence. The motion care.

was denied, and this ruling is assigned as [Ed. Note.-For other cases, see Railroads, error. Counsel for defendant contend that Cent. Dig. 88 1657-1660, 1667.]

it was necessary for the plaintiff to prove that 4. TBIAL Om 296(3) - INSTRUCTIONS – CURE the fire originated near defendant's rig -CONFLICTING INSTRUCTIONS.

way soon after the locomotive had passed the An instruction erroneously declaring it is defendant's duty to exercise the bighest degree field, and that under all the circumstances it of care consistent with the practical conduct was more probable that the fire originated of its business is not cured by another properly from its locomotive than from any other defining the degree of care resting on it.

cause; that this showing would give rise to [Ed. Note.--For other cases, see Trial, Cent. Dig. $ 709.)

a prima facie presumption of negligence and

render it incumbent upon the defendant to go Department 1. Appeal from Superior

forward with the testimony and show if it Court, Walla Walla County; Edward O.

could that its locomotive was properly equipMills, Judge.

ped, maintained, and operated at the time Action by the Firemen's Fund Insurance

the fire is alleged to have been set out, and Company against the Oregon-Washington Railroad & Navigation Company. Judgment

that in this case the defendant made such

showing; that after the defendant had profor plaintiff, and defendant appeals. Revers

duced such testimony, it then devolved upon ed, and remanded for new trial.

plaintiff to again go forward with the testiA. C. Spencer and W. A. Robbins, both of

mony and produce evidence tending to show Portland, Or., and Evans & Watson, of Walla

that the defendant was guilty of actual as Walla, for appellant. 0. C. Moore, of Spo- distinguished from presumptive negligence in kane, for respondent.

the equipment or operation of the locomo

tive; and that the plaintiff failed to introWEBSTER, J. This is an action brought duce such evidence. The record discloses by the Firemen's Fund Insurance Company that plaintiff introduced testimony to the efagainst the Oregon-Washington Railroad fect that the fire originated in the wheat field & Navigation Company to recover damages

about 140 feet from the center of the railway for the alleged negligent burning of a field track and about 800 feet from Boles Station, of grain located near Boles Station, in this at which the locomotive had stopped; that state. Plaintiff alleged in substance that it the track from the station to a point immediis a fire insurance company, and prior to ately in line with the place in the field the fire in question had insured the grain where the fire was discovered, and beyond, which was destroyed; that thereafter it paid was up a steep grade; that the locomotive

For other cases see sacce topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

manner.

was working heavily and was emitting large, clude that it did. In Abrams v. Seattle & Monvolumes of smoke, soot, and cinders; that hot tana R. Co., 27 Wash. 507, 68 Pac. 78, we said: embers or sparks struck the harvesters at There was no direct evidence that the fire was

started by the appellants' engine, nor was it work in the field ; that the effect of their discovered burning upon the right of way preheat as they lit on the men and on the backs vious to the discovery of the smoke arising from of the teams was noted at the time. For

the roof of the barn. It was in evidence, how

ever, that there was no fire upon the premises example, one witness testified:

prior to the passage of the engine, and no other "As the train passed it threw out quite a few known source from which the fire could probably cinders, and most of them were pretty hot. I have originated. From this record we have no had my shirt open and they went down my hesitancy in saying that, to our minds, the evi. back, and I had a mule that was clipped and ondence justifies the finding of the jury, not only his back and shoulders when they fell on him that the fire which caused the injury escaped I noticed a burn or two where it kind of from the passing passenger engine, but that it scorched the hair."

caught first in the inflammable débris, and It was also shown that the fire was dis- spread from thence to the respondent's barn. covered only a few minutes after the locomo-facts by the direct evidence of an eyewitness,

The respondent was not obligated to prove these tive had passed ; that none of the men in the nor by proofs which would leave them beyond field were smoking or carrying matches; and the possibility of a doubt. It was sufficient if that there was not other known cause for the he established them by the proof of circumstanc

es which lead reasonably to their inference, and fire. An experienced locomotive engineer tes which ordinarily satisfies an unprejudiced mind tified in behalf of plaintiff that an engine of their truth.' properly equipped and operated would not

"The evidence now before us leads reasonably throw live cinders a distance of 140 feet, and to the inference that the fire was caused by

sparks from respondent's engine. Respondent the engineer in charge of engine No. 262 at attempts to distinguish the Abrams Case, and the time the fire is alleged to have been start- other cases decided by this court, by calling ated testified on cross-examination that, if the tention to the fact that, in the cases mentioned,

inflammable débris was on the right of way, a fire was set out by his engine in the manner fact not shown in this record. The evidence claimed by plaintiff, it would indicate either here does show that the engine was working that something was wrong with the locomo-heavily; that it was emitting large cinders and

sparks which were carried towards the house tive, or that it was not operated in a proper by a strong wind; that within a few minutes

the firo was discovered; and that no other cause These facts bring the case squarely within for the fire has been suggested or shown. These the rule announced by this court in North-facts are sufficient to sustain the finding of the

jury. western Mutual Fire Association v. Northern

"As above stated, the respondent further conPacific Ry. Co., 68 Wash. 292, 123 Pac. 468, tends that, even though the evidence offered by Ann. Cas. 1913E, 968. In that case the rail- appellant be held sufficient to make a prima way company introduced evidence to the ef- so as to require respondent to offer proof in re

facie case of negligence on respondent's part, fect that the engine there charged with hav- buttal, the undisputod evidence which it offering caused the fire was equipped with a suited so completely overcame and disposed of apable spark-arresting device which was in ex- pellant's case that it was the duty of the trial cellent state of repair; that the engine was would be an unauthorized invasion of the prov

judge to direct a judgment of dismissal. This in first-class condition in all respects; and ince of the jury. Respondent's showing which that it was carefully and skillfully operated. it made was nothing more than evidence opposed A verdict was rendered in favor of the plain- of respondent's records and the testimony of

to evidence. It was made through the medium til. A motion for judgment notwithstanding witnesses who were respondent's employés. It the verdict was granted. In reversing the was for the jury to pass upon the credibility judgment the court said:

of the witnesses, and determine whether this "Appellant insists that its evidence made a

cvidence was sufficient to rebut the prima facie prima facie case of negligence sufficient to shift

case made by appellant." to respondent the burden of showing that its The evidence in the case before us is engine and spark arrester were in good repair, that the engisie was properly operated, and that more strongly in favor of the plaintiff than respondent exercised due care. It also contends it was in the case from which we have just that, upon all the evidence, it was for the jury quoted. The question presented was one of to determine whether respondent had been neg- fact for the determination of the jury, and ligent, and whether it had successfully overcome the prima facie case made by appellant. the ruling of the trial court denying the moRespondent, in substance, contends: (1) That tion for a directed verdict was clearly right. the cause of the fire was a matter of mere con

Defendant assigns numerous errors based jecture; (2) that negligence on its part was not proven; and (3) that, conceding appellant upon the instructions of the court defining by its evidence made a prima facie case as to the duty resting upon defendant to equip its the origin of the fire, yet the burden of proof locomotive with approved appliances to pre would not then shift to respondent, but respondent would only be required to show that it vent the escape of sparks and cinders. As had used reasonable care in the equipment and we read the record and in view of the fact operation of its engine; that when it had done that the judgment must be reversed upon anso, and had thus disposed of appellant's prima other point, it will not be necessary to confacie case, the burden still rested upon appellant to sustain its charge of negligence, which it sider these assignments. failed to do; and that it was the duty of the [2] At the trial defendant introduced evitrial judge to so hold, as a question of law. "The first question presented for our determi

dence to the effect that engine No. 262 at the nation is whether appellant made a prima facie time in question was equipped with a mascase of negligence against respondent. We con- ter mechanic's front end, which was one of

Wash.) FIREMEN'S FUND INS. CO. v. OREGON-WASHINGTON R. & NAV. CO.

767

the best-known devices for arresting sparks, , And it is the further duty of a railroad company and that it was supplied with a 7x7 netting, to exercise the highest degree of care in the opwhich is the finest netting that it is prac- practicable conduct of its business, and likewise

eration of its locomotives consistent with the ticable to use on a locomotive. Plaintiff's to employ and provide competent, skillful, and only expert on this point testified that he careful men to operate same.' was familiar with the master mechanic's Defendant complains of this instruction upfront end spark arrester, and that he knew on the ground that it imposed upon the comof no better device on the market, and that pany a higher degree of care in the premises a netting 3x3 would be proper equipment, a than the law sanctions. It will be seen that 3x3 netting being of much larger mesh than the jury was instructed that it was the duty one 7x7. Consequently there was no dis- of defendant to exercise the highest degree pute or conflict in the testimony as to the of care in the operation of its locomotives character of the appliance with which the en-consistent with the practicable conduct of its gine was equipped. The sole issues for the business, and to exercise the same degree consideration of the jury were whether the of care in employing and providing compefire had been set out by defendant's loco tent and skillful men to operate the same. motive, and, if so, whether the spark-arrest- This is not the law. The instruction imposed ing appliances at the time were properly ad- upon defendant the duty to exercise the same justed, in place, and in good repair, and degree of care exacted by law of carriers of whether the locomotive was carefully and passengers. The law, in its tender regard skillfully operated.

for human life and limb, holds railway comThere is evidence in the record that the panies as carriers of passengers to the exeradjustment of the deflector plate in the cise of the highest degree of care and caution spark-arresting apparatus and the position of consistent with the practical operation of the diaphragm or draft plates were mat- the business in which they are engaged, but ters to be taken into consideration in de- in a case such as is now before us the determining whether a locomotive is properly fendant is required only to exercise ordinary equipped to prevent the escape of sparks. care and caution. Ordinary or reaşonable As we have already said the engineer in care in a case of this kind is unquestionably charge of the locomotive testified that, if the a high degree of care, because the risk of infire was set out in the manner claimed by jury when care is not observed is very great. plaintiff, it would indicate either that some In this, as in all cases of negligence, the dething was wrong with the engine or with the gree of care must be commensurate with and manner in which it was operated, and plain- corresponding to the danger incident to the tiff's expert testified that a locomotive prop- failure to exercise care. It is, however, only erly equipped, adjusted, and operated would that degree of care which an ordinarily carenot throw sparks or live cinders a distance ful and prudent person engaged in the same of 140 feet. Overacker v. Northern Pac. R. business would exercise under similar cirCo., 64 Wash. 491, 117 Pac. 403; Chicago &cumstances and conditions. The standard of E. R. Co. v. Ohio City Lumber Co., 214 Fed. care is ordinary and reasonable caution. But 751, 131 C. C. A. 57.

whether this standard is observed depends There being no conflict in the evidence as upon the attendant facts of the particular to the character of the spark-arresting device case. Abrams v. Seattle & Montana Ry. Co., with which the engine was equipped, that is, 27 Wash. 507, 68 Pac. 78. Thompson, in his there being no contention that it was not a Commentaries on the Law of Negligence suitable and proper device, but all of the evi- (volume 2, $8 2232 and 2233), announces the dence agreeing that it was the best-known rule supported by the great weight of authorappliance on the market for the purpose for ity in this language: which it was designed, that question should "The modern law has so far departed from not have been submitted to the jury. But the ancient conceptions that, instead of the railroad case should have been permitted to go to the company being liable as an insurer against damjury upon the questions of whether the loco what the books describe as reasonable or ordi

ages arising from its use, it is liable only for motive in fact caused the fire, and, if so, nary care, which may be said to mcan, in this whether the defendant was guilty of negli- connection, the care which will under given

circumstances be exercised by a competent gence in failing to exercise ordinary and rea- specialist having a due regard for the rights of sonable care and caution in properly adjust- others. But for the lack of this measure of ing the appliance and keeping it in repair, care it is liable. In the absence of a statute and whether the locomotive at the time was making it such, it is not an insurer against loss

by fire of all the combustible property situated operated with ordinary and reasonable care along the line of its road, but is required to exand skill.

erciso only such care and caution in providing (3] In its charge to the jury the trial court machinery, in the employment of agents in opinstructed in part as follows:

erating its road, and in caring for its right of

way, as an ordinarily prudent person would ex"It is the duty of a railroad company to equip ercise under all the circumstances if all the its locomotives with approved mechanical in- property to be affected belonged to himself. ventions and appliances to prevent the escape of This obligation to use reasonable or ordinary sparks, fire, and cinders therefrom, and to aver care includes the obligation to use reasonable cise reasonable diligence and precaution in keep- care and skill in the construction of its locomoing such equipment in place and proper repair. tives, by the adoption of approved appliances

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