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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 has not since lapsed either under the doctrine of laches or by the statute of limitations.

[1] It is a generally recognized rule that there is such a mutual relation between tenants in common of real property that one of such tenants cannot deprive his cotenants of their interests in the common property by purchasing an outstanding adverse title thereto, or by the purchase of an incumbrance thereon which is afterwards converted into title, when the purchase is made for the benefit and protection of the common The principle has been frequently recognized by this court. Cedar Canyon Con. Min. Co. v. Yarwood, 27 Wash. 271, 67 Pac. 749, 91 Am. St. Rep. 811; Dahlstrom v. Beard Fruit Co., 73 Wash. 13, 131 Pac. 450; Stoll v. Griffiths, 41 Wash. 37, 82 Pac. 1025; Burnett v. Ewing, 39 Wash. 45, 80 Pac. 855; Anderson v. Snowden, 44 Wash. 274, 87 Pac. 356, 120 Am. St. Rep. 998; Stone v. Marshall, 52 Wash. 375, 100 Pac. 858; Trumbull v. Bruce, 64 Wash. 644, 117 Pac. 472.

tax sale was in all respects regular, other than that the land was sold for a sum in excess of the amount due on the decree, "of approximately 50 cents." After the execution of the treasurer's deed Mrs. Ross assumed ownership of the entire tract, and on April 7, 1909, conveyed the same by warranty deed to R. P. Waldron. The respondent H. B. Waldron is the wife of R. P. Waldron, and these respondents on March 19, 1909, mortgaged the property to the respondent Ella Waldron, which mortgage had not been paid in full at the time of the commencement of the present action on Decem-estate. ber 8, 1915. Since the execution of the tax deed Mrs. Ross and R. P. Waldron and wife, as owners, have paid all of the taxes levied upon and assessed against the property, and "plaintiff has not, and his predecessors in interest have not, paid or undertaken to pay any taxes on the said property since the execution of the said tax deed." The appellant acquired such interests in the property as he possesses from Arch Murray and the heirs at law of Frank and Alex Miller. He made no tender of the taxes paid by the respondents and their predecessor in interest, but ined by the purchase vests by operation of his complaint avers that he is ready and willing to pay the amount of the taxes, interest, costs, and accrued costs becoming due and payable on the property on account of levies of taxes made against the property since the year 1896.

The complaint contains allegations also concerning the relations existing between Mrs. Ross and the respondents Waldron, and concerning their purposes in acquiring the title to the property through the tax foreclosure proceedings, but, as no stress is laid on these allegations in this court, they need not be further noticed.

[2] But it is not meant by the rule that the purchase is void, or that the title acquir

law in the cotenants. The cotenants may believe that the property is not sufficient in value to justify the expenditure, or they may believe that the common title is the paramount title; hence the title acquired by the purchaser is not forced upon them. The rule but gives the cotenants the right to share in the benefits of the purchase, a privilege which they may accept or reject. At most, the title acquired by the purchase is voidable not void, and they who would complain must elect whether they will avoid it or not. Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, 23 L. Ed. 328; Starkweather v. Jenner, 216 U. S. 524, 30 Sup. Ct. 382, 54 L. Ed. 602, 17 Ann. Cas. 1167.

The complaint contains no allegation concerning the possession of the property since 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, § 156. What will constitute a reasonable time depends much upon the facts of the particular case, but the authorities all agree that whatever delay is occasioned must be entirely consistent with fair dealing, and not attributable to an effort to retain the advantages of the purchase while the responsibilities attending upon it are shirked.

The demurrer was based on two statutory grounds of demurrer, want of facts sufficient to constitute a cause of action, and the statute of limitations. The record does not disclose upon which of these the trial court rested its conclusion, but the appellant contends that the conclusion is not sustainable upon either of the suggested grounds. More specifically, he contends that Mrs. Ross became a tenant in common with the predecessors in interest of the appellant when she acquired the interests of R. P. Waldron on June 20, 1895, that her subsequent acquisition of the legal title to the whole prop

[4] In the light of these principles, it seems to us that the judgment of the trial court can be rested on the ground of laches if not strictly upon the statute of limitations. From the dates given it will be observed that nearly 20 years had elapsed be

commencement of this action. As this is an acbent upon her to show that she had done equity tion wherein she invokes equity, it was incumby paying, or promptly offering to pay, her portion of the purchase price."

The case of Dahlstrom v. Beard Fruit Co., 73 Wash. 13, 131 Pac. 450, does not support 'the appellant's contention, nor does it hold

them. It was held that under such circum

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 taxes and the time the appellant sought by this action to redeem therefrom. This is almost twice the period of the statute of limitations for the recovery of real property held adversely. More than 12 years have elapsed since the respondents' predecessor in interest acquired the property at the tax foreclosure sale. At that time they paid the that the tenant in common acquiring the adaccumulated taxes, and have since regularly title short of the period of the statute of limverse title cannot in any case assert such paid all of the taxes subsequently levied up-itations. In that case the tenant was in on the property. They have at all times 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-stances he could not suffer the taxes to being city, and its value must necessarily have fluctuated, 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 not the case here. There was here no posents purchased the property was not the ordinary tax sale made upon a general notice session of the property nor rents nor profits, nor did the tenant agree to pay the taxes, of more or less publicity, but was a judicial sale founded on a decree of foreclosure, 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 personally served with summons. They cannot therefore plead, and do not plead, want of notice of the sale. They were charged with notice also that on each succeeding year there were taxes levied against the property which they must pay if the title to the property was to be preserved in them, and they are chargeable with knowledge that the land was vacant land, producing no rental, and if the taxes were being paid by their coten-thority or the better reasoning, even in the ants, they were being paid from the private funds of such tenants which they were equitably bound to proportionately reimburse.

[5, 6] Equity does not oblige a cotenant to pay out his money to protect the common title. It rather permits him to do so and converts him into a trustee when he has done so. But it equally lays an obligation upon the other cotenants to reimburse him for his outlay, and a failure to reimburse him within a reasonable time will be taken as an election on their part to allow him to take the title he has acquired for his individual use. Wilson v. Linder, 21 Idaho, 576, 123 Pac. 487, 42 L. R. A. (N. S.) 242, Ann. Cas. 1913E, 148.

In Kershaw v. Simpson, 46 Wash. 313, 89 Pac. 889, a case similar in principle to the one at bar, we used this language:

"Appellant, after learning of the purchase of the property by respondents, did not tender any portion of the purchase price, although something over three years elapsed from the time

[7] Nor does the fact that the property was sold for approximately 50 cents in excess of the amount of taxes due render void the tax foreclosure proceedings or the title acquired thereby. Cases can be found where, in proceedings wholly ex parte, the courts have set aside tax sales for excessive exactions where the excess was perhaps no greater than the excess shown here; but the cases are not in accord with the weight of au

instances to which they are strictly applicable. We cannot think, however, they have application to a procedure such as our statute prescribes. Here the foreclosure is a judicial proceeding, had after the service of a summons, in which the adverse party may appear and contest the foreclosure. The sale is made after judgment in the cause, and the opportunity is given to appear and question the regularity of the sale before it becomes final by the execution of a deed. Manifestly, it seems to us, it would be a perversion of the statute to hold that an irregularity such as this renders the entire proceeding void.

It is our conclusion that the complaint shows no ground for a recovery of the property, and that the judgment should be affirmed.

It is so ordered.

ELLIS, C. J., and PARKER, MOUNT, and HOLCOMB, JJ., concur.

Wash.)

FIREMEN'S FUND INS. CO. v. OREGON-WASHINGTON R. & NAV. CO. 765

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[Ed. Note. For other cases, see Railroads, Cent. Dig. § 1743.] 3. RAILROADS

453-FIRES-NEGLIGENCE

DEGREE OF CARE REQUIRED.

Relative to liability for fire set by locomotive, a railroad is not required to exercise the highest degree of care in its operation, but only reasonable or ordinary care, that degree which an ordinarily careful and prudent person engaged in the same business would exercise under similar circumstances and conditions, though this is unquestionably a high degree of care, because the risk when care is not observed is very great, and the degree of care in all cases must be commensurate with and correspond to the danger incident to the failure to exercise

care.

the owner of the grain the amount of the loss, and, by reason thereof, was subrogated to whatever rights the owner may have had against the defendant company; and that the company was guilty of negligence in that it caused sparks and cinders to be emitted from its locomotive, thereby setting fire to the wheat field. The defendant denied any negligence on its part and affirmatively pleaded that on July 26, 1915, the day on which

the fire occurred, one of defendant's eastbound passenger trains, drawn by engine No. 262, passed through Boles Station at about the hour of 10:40 a. m.; that this was the only locomotive of the defendant passing in that vicinity for a considerable time prior to the discovery of the fire; that locomotive No. 262 was of first-class construction, was equipped with suitable and proper spark-arresting apparatus, which was in place and in good repair; and that the engine was carefully and skillfully operated. The affirmative matter in the answer was denied by the reply. Upon the issues thus joined the cause was tried to a jury, which returned a verdict in favor of plaintiff. From the judgment entered upon the verdict, the defendant appeals.

[1] At the conclusion of the testimony the defendant moved the court for a directed verdict in its favor upon the ground of the The motion insufficiency of the evidence.

was denied, and this ruling is assigned as

[Ed. Note.-For other cases, see Railroads, error. Counsel for defendant contend that Cent. Dig. §§ 1657-1660, 1667.]

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4. TRIAL 296(3) INSTRUCTIONS CURE
-CONFLICTING INSTRUCTIONS.
An instruction erroneously declaring it is
defendant's duty to exercise the highest degree
of care consistent with the practical conduct
of its business is not cured by another properly
defining the degree of care resting on it.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 709.]

Department 1. Appeal from Superior Court, Walla Walla County; Edward C. Mills, Judge.

Action by the Firemen's Fund Insurance Company against the Oregon-Washington Railroad & Navigation Company. Judgment for plaintiff, and defendant appeals. Revers

ed, and remanded for new trial.

A. C. Spencer and W. A. Robbins, both of Portland, Or., and Evans & Watson, of Walla Walla, for appellant. O. C. Moore, of Spokane, for respondent.

WEBSTER, J. This is an action brought by the Firemen's Fund Insurance Company against the Oregon-Washington Railroad & Navigation Company to recover damages for the alleged negligent burning of a field of grain located near Boles Station, in this state. Plaintiff alleged in substance that it is a fire insurance company, and prior to the fire in question had insured the grain which was destroyed; that thereafter it paid

it was necessary for the plaintiff to prove that the fire originated near defendant's right of way soon after the locomotive had passed the field, and that under all the circumstances it was more probable that the fire originated from its locomotive than from any other cause; that this showing would give rise to a prima facie presumption of negligence and render it incumbent upon the defendant to go forward with the testimony and show if it could that its locomotive was properly equipped, maintained, and operated at the time the fire is alleged to have been set out, and that in this case the defendant made such

showing; that after the defendant had produced such testimony, it then devolved upon plaintiff to again go forward with the testimony and produce evidence tending to show that the defendant was guilty of actual as distinguished from presumptive negligence in the equipment or operation of the locomotive; and that the plaintiff failed to introduce such evidence. The record discloses that plaintiff introduced testimony to the effect that the fire originated in the wheat field about 140 feet from the center of the railway track and about 800 feet from Boles Station, at which the locomotive had stopped; that the track from the station to a point immediately in line with the place in the field where the fire was discovered, and beyond, was up a steep grade; that the locomotive

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

was working heavily and was emitting large, volumes of smoke, soot, and cinders; that hot embers or sparks struck the harvesters at work in the field; that the effect of their heat as they lit on the men and on the backs of the teams was noted at the time. For example, one witness testified:

"As the train passed it threw out quite a few cinders, and most of them were pretty hot. I had my shirt open and they went down my back, and I had a mule that was clipped and on his back and shoulders when they fell on him I noticed a burn or two where it kind of scorched the hair."

It was also shown that the fire was discovered only a few minutes after the locomotive had passed; that none of the men in the field were smoking or carrying matches; and that there was not other known cause for the fire. An experienced locomotive engineer testified in behalf of plaintiff that an engine properly equipped and operated would not throw live cinders a distance of 140 feet, and the engineer in charge of engine No. 262 at the time the fire is alleged to have been started testified on cross-examination that, if the fire was set out by his engine in the manner claimed by plaintiff, it would indicate either that something was wrong with the locomotive, or that it was not operated in a proper

manner.

These facts bring the case squarely within the rule announced by this court in Northwestern Mutual Fire Association v. Northern Pacific Ry. Co., 68 Wash. 292, 123 Pac. 468, Ann. Cas. 1913E, 968. In that case the railway company introduced evidence to the effect that the engine there charged with having caused the fire was equipped with a suitable spark-arresting device which was in excellent state of repair; that the engine was in first-class condition in all respects; and that it was carefully and skillfully operated. A verdict was rendered in favor of the plaintiff. A motion for judgment notwithstanding the verdict was granted. In reversing the judgment the court said:

"Appellant insists that its evidence made a prima facie case of negligence sufficient to shift to respondent the burden of showing that its engine and spark arrester were in good repair, that the engine was properly operated, and that respondent exercised due care. It also contends that, upon all the evidence, it was for the jury to determine whether respondent had been negligent, and whether it had successfully overcome the prima facie case made by appellant. Respondent, in substance, contends: (1) That the cause of the fire was a matter of mere conjecture; (2) that negligence on its part was not proven; and (3) that, conceding appellant by its evidence made a prima facie case as to the origin of the fire, yet the burden of proof would not then shift to respondent, but respondent would only be required to show that it had used reasonable care in the equipment and operation of its engine; that when it had done so, and had thus disposed of appellant's prima facie case, the burden still rested upon appellant to sustain its charge of negligence, which it failed to do; and that it was the duty of the trial judge to so hold, as a question of law. "The first question presented for our determination is whether appellant made a prima facie case of negligence against respondent. We con

clude that it did. In Abrams v. Seattle & Montana R. Co., 27 Wash. 507, 68 Pac. 78, we said: "There was no direct evidence that the fire was started by the appellants' engine, nor was it discovered burning upon the right of way previous to the discovery of the smoke arising from the roof of the barn. It was in evidence, however, that there was no fire upon the premises prior to the passage of the engine, and no other known source from which the fire could probably have originated. From this record we have no hesitancy in saying that, to our minds, the evidence justifies the finding of the jury, not only that the fire which caused the injury escaped from the passing passenger engine, but that it caught first in the inflammable débris, and spread from thence to the respondent's barn. The respondent was not obligated to prove these facts by the direct evidence of an eyewitness, nor by proofs which would leave them beyond the possibility of a doubt. It was sufficient if he established them by the proof of circumstanc es which lead reasonably to their inference, and which ordinarily satisfies an unprejudiced mind of their truth.'

"The evidence now before us leads reasonably to the inference that the fire was caused by sparks from respondent's engine. Respondent attempts to distinguish the Abrams Case, and other cases decided by this court, by calling attention to the fact that, in the cases mentioned, inflammable débris was on the right of way, a fact not shown in this record. The evidence here does show that the engine was working heavily; that it was emitting large cinders and sparks which were carried towards the house by a strong wind; that within a few minutes the fire was discovered; and that no other cause for the fire has been suggested or shown. These facts are sufficient to sustain the finding of the jury.

* * *

"As above stated, the respondent further contends that, even though the evidence offered by appellant be held sufficient to make a prima facie case of negligence on respondent's part, so as to require respondent to offer proof in rebuttal, the undisputed evidence which it offered so completely overcame and disposed of appellant's case that it was the duty of the trial would be an unauthorized invasion of the provjudge to direct a judgment of dismissal. This ince of the jury. Respondent's showing which it made was nothing more than evidence opposed of respondent's records and the testimony of to evidence. It was made through the medium witnesses who were respondent's employés. It was for the jury to pass upon the credibility of the witnesses, and determine whether this evidence was sufficient to rebut the prima facie case made by appellant."

The evidence in the case before us is more strongly in favor of the plaintiff than it was in the case from which we have just quoted. The question presented was one of fact for the determination of the jury, and the ruling of the trial court denying the motion for a directed verdict was clearly right.

Defendant assigns numerous errors based upon the instructions of the court defining the duty resting upon defendant to equip its locomotive with approved appliances to prevent the escape of sparks and cinders. As we read the record and in view of the fact that the judgment must be reversed upon another point, it will not be necessary to consider these assignments.

[2] At the trial defendant introduced evidence to the effect that engine No. 262 at the time in question was equipped with a master mechanic's front end, which was one of

Wash.) FIREMEN'S FUND INS. CO. v. OREGON-WASHINGTON R. & NAV. CO. 767

to exercise the highest degree of care in the operation of its locomotives consistent with the practicable conduct of its business, and likewise to employ and provide competent, skillful, and careful men to operate same."

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, which is the finest netting that it is practicable to use on a locomotive. Plaintiff's only expert on this point testified that he was familiar with the master mechanic's front end spark arrester, and that he knew of no better device on the market, and that a netting 3×3 would be proper equipment, a 3x3 netting being of much larger mesh than one 7×7. Consequently there was no dispute or conflict in the testimony as to the character of the appliance with which the engine was equipped. The sole issues for the consideration of the jury were whether the fire had been set out by defendant's loco motive, and, if so, whether the spark-arresting appliances at the time were properly adjusted, in place, and in good repair, and whether the locomotive was carefully and skillfully operated.

There is evidence in the record that the adjustment of the deflector plate in the spark-arresting apparatus and the position of the diaphragm or draft plates were matters to be taken into consideration in determining whether a locomotive is properly equipped to prevent the escape of sparks. As we have already said the engineer in charge of the locomotive testified that, if the fire was set out in the manner claimed by plaintiff, it would indicate either that some thing was wrong with the engine or with the manner in which it was operated, and plaintiff's expert testified that a locomotive properly equipped, adjusted, and operated would not throw sparks or live cinders a distance of 140 feet. Overacker v. Northern Pac. R. Co., 64 Wash. 491, 117 Pac. 403; Chicago & E. R. Co. v. Ohio City Lumber Co., 214 Fed. 751, 131 C. C. A. 57.

There being no conflict in the evidence as to the character of the spark-arresting device with which the engine was equipped, that is, there being no contention that it was not a suitable and proper device, but all of the evidence agreeing that it was the best-known appliance on the market for the purpose for which it was designed, that question should not have been submitted to the jury. But the case should have been permitted to go to the jury upon the questions of whether the locomotive in fact caused the fire, and, if so, whether the defendant was guilty of negligence in failing to exercise ordinary and reasonable care and caution in properly adjusting the appliance and keeping it in repair, and whether the locomotive at the time was operated with ordinary and reasonable care and skill.

[3] In its charge to the jury the trial court instructed in part as follows:

"It is the duty of a railroad company to equip its locomotives with approved mechanical inventions and appliances to prevent the escape of sparks, fire, and cinders therefrom, and to exercise reasonable diligence and precaution in keeping such equipment in place and proper repair.

Defendant complains of this instruction upon the ground that it imposed upon the company a higher degree of care in the premises than the law sanctions. It will be seen that the jury was instructed that it was the duty of defendant to exercise the highest degree of care in the operation of its locomotives consistent with the practicable conduct of its business, and to exercise the same degree of care in employing and providing competent and skillful men to operate the same. This is not the law. The instruction imposed upon defendant the duty to exercise the same degree of care exacted by law of carriers of passengers. The law, in its tender regard for human life and limb, holds railway companies as carriers of passengers to the exercise of the highest degree of care and caution consistent with the practical operation of the business in which they are engaged, but in a case such as is now before us the defendant is required only to exercise ordinary care and caution. Ordinary or reasonable care in a case of this kind is unquestionably a high degree of care, because the risk of injury when care is not observed is very great. In this, as in all cases of negligence, the degree of care must be commensurate with and corresponding to the danger incident to the failure to exercise care. It is, however, only that degree of care which an ordinarily careful and prudent person engaged in the same business would exercise under similar circumstances and conditions. The standard of care is ordinary and reasonable caution. But whether this standard is observed depends upon the attendant facts of the particular case. Abrams v. Seattle & Montana Ry. Co., 27 Wash. 507, 68 Pac. 78. Thompson, in his Commentaries on the Law of Negligence (volume 2, §§ 2232 and 2233), announces the rule supported by the great weight of authority in this language:

"The modern law has so far departed from ancient conceptions that, instead of the railroad company being liable as an insurer against damages arising from its use, it is liable only for what the books describe as reasonable or ordinary care, which may be said to mean, in this connection, the care which will under given circumstances be exercised by a competent specialist having a due regard for the rights of others. But for the lack of this measure of care it is liable. In the absence of a statute making it such, it is not an insurer against loss by fire of all the combustible property situated along the line of its road, but is required to exercise only such care and caution in providing machinery, in the employment of agents in operating its road, and in caring for its right of way, as an ordinarily prudent person would exercise under all the circumstances if all the property to be affected belonged to himself. This obligation to use reasonable or ordinary care includes the obligation to use reasonable care and skill in the construction of its locomotives, by the adoption of approved appliances

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