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4. DEDICATION C 35(5)-BY Plat - ACCEPT- | her inherited the block. Seattle was incorANCE-EVIDENCE.

| porated in 1869, and Hanford's addition to Where there has been no acceptance, formal or otherwise, by the city or by the public, of

South Seattle was then within its corporate land dedicated for public use, the levy and 'col- | limits and so continued until 1875, when the lection of taxes and special assessments shows i limits of Seattle were reduced to such an exan intention not to accept the dedication.

tent as to exclude the Hanford addition to [Ed. Note.-For other cases, see Dedication, Cent. Dig. 8 68; Dec. Dig. 35(5).)

South Seattle, and so remained until 1883

when the corporate limits were again erDepartment 2. Appeal from Superior tended so as to include it. It has remained Court, King County ; J. T. Ronald, Judge. within the limits of Seattle to this time. No

Action to quiet title by Frank W. R. Han | taxes were levied against the platted tract ford against the City of Seattle. Judgment known as East Park prior to 1882. Taxes for plaintiff, and defendant appeals. Afwere levied against it and paid by the origifirmed.

nal owners, or the Waits, or descendant, to Jas. E. Bradford. Howard A. Hanson, and and including 1905. A certificate for 1906 Geo. A. Meagher, ail of Seattle, for appellant. and subsequent taxes to and including taxes C. H. Hanford and P. V. Davis, both of Se

for 1913 was sold and issued to another. attle, for respondent.

| Appellant in its governmental capacity has

twice assessed block 32, or East Park, for HOLCOMB, J. Respondent brought action | local public improvements, as late as 1913. and had judgment to quiet title in him to a The town plat law in force at the time of certain block of land known as “East Park” | the dedication of the plat of this land is or block 32. Hanford's addition to South found in the Code of 1881, 88 2332, 2329.

e The city claims this land as a pub. The first section contains the following: lic park. It is a part of the same plat of

"All streets, lanes and alleys, laid off and re

corded in accordance with the foregoing proviland involved in the case of Meacham v.

sions, shall be considered, to all intents and purSeattle, 45 Wash. 380, 88 Pac. 628, but the

poses, public highways. * * * status of this particular tract as a public

The second section is as follows: ground was not there involved' or considered. "Every donation or grant to the public, or to The contention of appellant, briefly stated, is any individual or individuals, religious society that a parcel of ground, included within a or societies, or to any corporation or body polplat of lots and blocks, streets and alleys,

itic, marked or noted as such on the plat of the

town, or wherein such donation or grant may dedicating the streets and alleys and "other have been made, shall be considered, to all inpublic grounds" to the public, which plat tents and purposes, as a quitclaim deed to the designates the tract involved as “East Park,” |

lzusaid donee or donees, grantee or grantees, for

his, her or their use, for the purposes intended ex vi termini dedicates the tract to the pub- by 'the donor or donors, grantor or grantors, as lic as a park or “public ground."

aforesaid.” [1] This plat was acknowledged by Edward [2] By these provisions of the law then in Hanford on June 9, 1869, and filed for record force it will be noted that the first provision in the King county records of deeds on June constituted a legislative acceptance of all 8, 1869, and afterwards re-recorded in the streets, lanes, and alleys laid off in accordplat book of towns, “Per Order of County ance with the law providing for the platting Com’rs," on March 16, 1875. The patent to and subdivision of land. But as to the secthe land from the United States was not is- ond section it will be observed that, if any sued until August 27, 1871. On July 1, 1878, grounds other than those designated as Edward Hanford and his wife executed a streets, lanes, or alleys are intended to be “Deed of Dedication" to the platted lands, to donated or granted to the public or to any particularly identify the land with reference other person or concern, it was necessary to to the legal government description and fur- mark or note on the plat that such grounds ther describe the plat and dedication. Be- were donated or granted, and for what use tween the dates of the filing of the original or purposes intended by the donor or grantor. plat and the later deed of dedication the Three things were essential: (1) An affirmaplattors sold lots with reference to the plat tive act of donation or grant by the donor or and joined in deeds therefor, which acts con- grantor noted as such on the plat or expressstituted ratification of the plat as filed. Mea- ed in some other instrument; (2) the donee cham v. Seattle, supra. In 1881 Edward or grantee must be named or specifically inHanford and wife conveyed all they then dicated; (3) the specific use to which the had remaining of the platted land “excepting donated or granted property is to be devoted the block in the platted land marked 'East according to the intention of the donor or Park,' or block 32,” which they expressly re- grantor must be expressed or provable in served. In 1882 they conveyed this block 32, some way. There was not in this plat, or in or East Park, to Aaron A. Wait. In 1884 the subsequent dedication by deed, any af. Wait conveyed the block to his daughter firmative words or expressions indicating an Anna E. Wait. She intermarried with Frank intent on the part of the plattors, who were Hanford in 1886, and died intestate in 1894, the grantors of the public grounds, streets, or leaving as her heir the respondent, who from alleys, to donate East Park or block 32 to the public or to any individual or body poll- , to accept the dedication. Spokane v. Securtic, for public purposes or any specific use. ity Savings Society, 82 Wash. 91, 143 Pac. Authorities are cited by appellant to the ef- 435. fect that dedication is shown by spaces on Appellant also relies upon Thonney v. Rice, plats designated by the words "Park,” “Public 43 Wash. 708, 86 Pac. 713, which we do not Square," "Public Ground," "Common,” “Coun- consider an authority because in that case ty Block," "College Square," "Plaza," "Place," it was held that there was timely acceptance etc. Rhodes v. Brightwood, 145 Ind. 21, 43 of the dedication. We consider this case N. E. 942; Archer v. Salinas City, 93 Cal. more analogous to that of Spokane v. Se43, 28 Pac. 839, 16 L. R. A. 145; Steel v. curity Savings Society, supra. As was obPortland, 23 Or. 176, 31 Pac. 479; Bayonne served by the lower court: v. Ford, 43 N. J. Law, 292; Ehmen v. Goth- "The city has never done a single act to evienburg, 50 Neb. 715, 70 N. W. 237; Pry v. dence its understanding that the property was Mankedick, 172 Pa. 535. 34 Atl. 46: Thax. a donation to the public.” ter v. Turner, 17 R. I. 799, 24 Atl. 829; 6

We conclude that there was in this case at Words and Phrases, 5177. In the text of the

best nothing but an ambiguous grant to the authority last cited it is said:

public by deed or other written conveyance. "The word 'park,' written on a block on a

There was never any acquiescence in the map of city property, indicates a public use, and use of it by the public. There was no user conveyances made by the owner of the platted or improvement or adverse possession of the land by reference to such map operates conclu

block by the public. There has never been sively as a dedication of the block.”

any expressed acceptance of the supposed [3] The situation here, however, is distin- I dedication of the block for public purposes. guished from that in most of the cases above The property has not been separated from cited by the positive terms of the statutes

the mass of other taxable property. The city which we have quoted. We have here, in ad-never, during the 45 years elapsing after the dition to that situation, the fact that, prior

, the fact that, prior platting of the land showing “East Park," to any use indicating an acceptance by the exercised any proprietorship over it. The public or the city acting for the public, what-doubtful and incomplete dedication has been ever indicia of dedication to the public there revoked by subsequent .effective action on had been by the plattors and dedicators of

the part of the dedicators. It was not prior this land had been revoked by subsequent

thereto confirmed and made certain by ac- . reservation of this particular block by their

ceptance and use by the public or the city. deed more than 37 years ago. After having

The incomplete dedication, if any, was rereserved this particular block by expressions

jected by the inclusion of the block in the in a deed, they transferred the land, and it

mass of taxable property, and the city is eswas again transferred. If the dedication

topped to assert it as a part of the public was ever a donation in intention, it was a

property of Seattle by its act in assessing revocable donation prior to acceptance or use

the same as private property. by the donee. Revocation may be effected in

The judgment of the trial court is right, such case by conveying the land as private

and is affirmed. property. 9 Am. & Eng. Enc. Law, 78.

[4] Since 1882 the county, which has at' PARKER. BAUSMAN. MOUNT. and FULall times been a taxing power within the LEPTON

icur. state, has levied and collected taxes upon this block. Tax receipts, showing that the city has collected taxes upon this block since

(92 Wash. 153) its coming into the city limits in 1882, are

HOLLOWAY et ux. v. GECK et ux. in evidence. The city has levied two spe

(No. 13020.) cial assessments upon this property within (Supreme Court of Washington. July 11, 1916.) the last 3 or 4 years for public improvements,

| 1. APPEAL AND ERROR Om889(2)—SCOPE OF and caused it to be placed upon the assess

REVIEW-PRESUMPTIONS. ment rolls therefor. It is contended by ap

Where objections urged against the compellant that the city could do this without plaint were met by the proofs offered on the being understood as waiving any of its rights,

trial, the complaint will on appeal be deemed

amended to conform to such proofs. for the reason that it can assess itself upon

[Ed. Note.-For other cases, see Appeal and its parks for local improvements, and that

Error, Cent. Dig. § 3621; Dec. Dig. Om 889(2); it customarily does so, in order to assist the Pleading, Cent. Dig. $ 1355.] property owners in paying for public im- 2. WATERS AND WATER COURSES 124-SURprovements. The answer to that is that the FACE WATERS-RIGHT TO DISCHARGE-REcity did not assess itself, but assessed this

| LIEF-INJUNCTION

Defendants' act, at tbe time they owned particular property as if the property of an- lands adjoining plaintiffs' lands, in constructing other, and so placed it upon the assessment a ditch which turned surface waters drained roll. Where there has been no acceptance by from a marsh upon plaintiffs' land, was the efthe city or the public, either formal or oth

ficient cause of the injury to such land, which

was a continuing one and a subject for injuncerwise, the levy and collection of taxes and

|tion against defendants, though they sold the special assessments shows an intention not ) portion of their land immediately adjoining

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

plaintiffs' land, if they retained the land upon / year 1915, defendants constructed a ditch which the marsh was situated.

from the south marsh which caused it to Ed. Note. For other cases, see Waters and drain at a lower level. The north and s Water Courses, Cent. Dig. 8 142; Dec. Dig. w124.)

marshes are on higher land than the center 3. WATERS AND WATER COURSES O126(3),

marsh, and all of the marsh lands are higher SURFACE WATERS-RELIEF-INJUNCTION.

than the lands to the westward, the natural Where the court refused to require ditches surface of the lands having a downward to be filled up, a discharge of surface waters I slone in a northwesterly direction the depresfrom which injured plaintiffs' land, but enjoined the discharge of any waters therefrom, plaintiffs

sion continuing westward beyond the lands of could not complain, especially where the court plaintiffs. Before the construction of the conceded , plaintiffs' right to another action ditches, when the waters accumulated in the should subsequent events show resultant dam

center marsh sufficient to overflow a barrier age. [Ed. Note.-For other cases, see Waters and

of about 142 feet in height, they flowed Water Courses, Cent. Dig. 88 141, 142; Dec. through a depression in the surface till they Dig. Om 126(3).)

reached about the center of the Adams 40, 4. WATERS AND WATER COURSES_C 126(3)—when they deflected more sharply to the SURFACE WATERS-RIGHT TO DISCHARGE

northwest, and were cast by the natural RELIEF-INJUNCTION.

Where defendants, owning land not immedi- course of drainage across the northeast corately adjacent to plaintiffs' land, were enjoined ner of the plaintiffs' land. When the defendfrom discharging surface waters from a marsh ants constructed their ditch from the center onto plaintiffs' land, plaintiffs, who failed to make the immediate adjoining owner a party,

marsh, they followed the natural course of cannot complain that the decree failed to require drainage as far as the center of the Adams the ditch on her land to be filled up.

40, and there turned the ditch directly west, (Ed. Note. For other cases, see Waters and casting the waters against the lands of the Water Courses, Cent. Dig. $$ 141, 142; Dec. Dig. Ow126(3).]

plaintiffs at a point some 500 feet south of

where such waters would naturally drain. Department 1. Appeal from Superior

In the spring of 1913, the defendants turned Court, Island County; John M. Ralston,

the marsh waters into the ditch, and they Judge.

were discharged against the county road Suit for injunction by I. C. Holloway and

which separated the Adams 40 from plainwife against Jacob H. Geck and wife. From

tiffs' land, from which point the water flowthe decree rendered, both parties appeal. Af

ed northward, filling the road ditch and firmed.

seeping under the road, causing the premises James Zylstra, of Coupeville, for plaintiffs. about the house of plaintiffs to become wet LeCocq & LeCocq, of Lynden, and J. A. Cole- and miry. To avoid this, the plaintiffs atman and James M. Hogan, both of Everett, tempted to take care of the water by placing for defendants.

a culvert under the road some 22 feet south

of the end of the ditch, and led the waters FULLERTON, J. The plaintiffs are the that way into a short open ditch onto their owners of 40 acres of land in Island county, land. The defendant Jacob Geck assisted described as the northeast quarter of the in this work. As the waters were dischargsouthwest quarter of section 23, in township ed from the last-mentioned ditch, they spread 33 north, range 1 east of the Willamette out fan-shaped by seepage and flow through Meridian. The defendants in the year 1912 and over the land, rendering it boggy and unowned the whole of the southeast quarter of fit for cultivation. The plaintiffs could have the same section, and at present own all so ditched their own land as to leave themthereof except the northwest quarter, which selves practically unharmed, but that would has passed into the ownership of a Mrs. have necessitated casting the water onto Adams. While the defendants held the own- their western neighbor. The discharge from ership and possession of the entire tract, they the ditches has since recurred at every seaconstructed a ditch on their lands which led son when the rains increase the accumulation up to the county road dividing those of plain- of surface waters in the marshes. In 1914, tiffs from that part of the defendants' lands the defendants constructed another ditch now owned by Mrs. Adams. The ditch, as it from the south marsh which led to a point runs through the Adams tract, is covered. where its waters were so cast as to flow The purpose of this ditch was the drainage upon the southern portion of the plaintiffs' of surface waters from marshes on the de land, increasing the dampness of the soil fendants' land. There are three of these on that portion. The water in this ditch bemarshes, designated by the witnesses as the gan to flow about January 1, 1915, but at the north, center, and south marshes. For the time of the trial this ditch had been plugged purposes of draining the north marsh into up and no water was escaping therefrom. the center marsh, a ditch was constructed This ditch did not follow the natural course in 1913 through a four-foot barrier. The of drainage, and was, in fact, cut through a south marsh has a natural outlet into the barrier of cement gravel. center marsh, when the accumulation of wa- The plaintiffs brought this action to enjoin ter rises to a sufficient height; but, in the the maintenance of the ditches, and to re

Int

cover damages claimed to have been suffered has been completed and is no longer a threatby their maintenance. Mrs. Adams, the presened injury, as it is plain that the injury inent owner of the land upon which was con- volved in the instant case is a recurring one structed the ditch draining the center marsh, and as such subject to restraint by injunc. was not made a party defendant. The court, tion. in giving judgment, ignored the question of [3] The plaintiffs contend that the decree damages. It decreed that the defendants does not go far enough, because it does not should be enjoined from diverting the waters restrain the drainage from the north and from such marshes so as to flow upon the south marshes into the center marsh. Inasplaintiffs' land at any place other than much as the casting of these surface waters where, the natural drainage course causes upon any other part of their land than where such water to enter or flow thereon, and re- they were accustomed to flow by natural fused to require the ditches to be filled. It drainage was enjoined, they can suffer no reserved, however, another action in the injury by this act, since the evidence does plaintiffs should subsequent events show a not disclose that the volume of water passnecessity for filling the ditches.. Both par- ing over their land in the natural course of ties appeal.

drainage has been increased by the junction [1] The first contention of the defendants of the three marshes. The waters of the is that the complaint does not state facts suf- south marsh, in case of heavy rains raising ficient to constitute a cause of action; but their level, found their natural outlet into we think that all the objections urged by center marsh before the construction of the them have been met by the proofs offered on ditch between them. True, the effect of the the trial, and we will deem the complaint ditch was to allow it to drain at a lower level amended to conform to such proofs.

than it did formerly, but there is no proof [2] The next contention is that the judg- of a resultant injury. Moreover, the trial ment of the superior court is contrary to the court in dişmissing this branch of the case evidence. This is based largely on the fact conceded plaintiffs the right of another acthat the ditch which causes the damage is tion should subsequent events show a resultnot located on land belonging to the de- ant damage. fendants, but is upon land intervening be- [4] The plaintiffs further contend that the tween the lands of the parties whose title court should have required defendants to fill and possession rests in a third person. But the ditch on the Adams land from the the evidence shows that defendants were the where it departs from the natural depression owners of this intermediate land at the time of the ground; but it is sufficient answer the ditch was constructed, and that they still to this to say that the owner of the land make use of the ditch for the purpose of through which this ditch passes was not draining the marsh waters. Their act of | made a party to the action, and the court turning the waters from the marshes into the would not be warranted in authorizing an enditch is the efficient cause of the injury to the try on her land for such purpose. More than land of plaintiffs, and, since the injury is a this, the defendants are restrained from uscontinuing one, it is a subject for injunctive ing the ditch for the purpose of ridding the relief. The principles governing the case marshes of the waters. If they cannot use it have already been enunciated by this court. for that purpose, it matters not to the plainCases presenting almost parallel facts will tiffs whether it is filled or left open. be found in Noyes v. Cosselman, 29 Wash. The judgment is affirmed. 635, 70 Pac. 61, 92 Am. St. Rep. 937, and Sullivan v. Johnson, 30 Wash. 72, 70 Pac. 246. MORRIS, C. J., and MOUNT, ELLIS, and In the second of these cases the rule is stat-CHADWICK, JJ., concur. ed as follows:

"Where surface waters are confined by natural barriers so that the same do not run from such

(92 Wash. 180) confinement naturally, the upper proprietor may not construct a ditch so as to cast such waters | INTERNATIONAL MORTGAGE BANK v. upon his neighbor, to the latter's] material in

MATTHEWS et al. jury of such neighbor.' See, also, Peters v. Lewis, 28 Wash. 366, 68

Appeal of MOORE. Pac. 689, where it is said:

(No. 13214.) “When surface water is collected and discharged upon adjoining lands in quantities greater

S| (Supreme Cou.. of Washington. July 11, 1916.) than, or in a manner different from, the natural 1. MORTGAGES 561 – ACTIONS AGAINST flow, a liability accrues for the injury occasioned

SUBSEQUENT GRANTEE-EVIDENCE-SUFFIthereby. Injunction is also held to be a proper

CIENCY. remedy where the injury is a continually recur

On cross-complaint of a junior mortgagee, ring one, and cannot be compensated in dam seeking to enforce a deficiency judgment against ages."

a subsequent grantee, evidence held insufficient This last citation disposes of defendants'

to justify a holding that the subsequent gran.

tee had assumed the mortgage. contention that plaintiffs should be relegated TED. Note. For other cases, see Mortgages, to an action for damages because the ditch | Cent. Dig. $$ 1609-1621 ; Dec. Dig. ww561.) 2. ESTOPPEL Om 29(1)-TRANSFER OF PROP-parted with title before this suit was ERTY-ASSUMPTION OF MORTGAGE DEBT. brought. The deed to Moore contains the Where the position of a junior mortgagee

for other cases see some topic aus KEY-NUMBER in all Key-Numbered Digests and indexes

assumption clause which gives rise to this had not been changed to his disadvantage by reason of a clause in a deed to a subsequent controversy. grantee assuming the mortgage, or by conduct The International Mortgage Bank elected of the subsequent grantee, the grantee was not to declare the whole of the principal mortestopped to show that the clause assuming incumbrances was inserted by mistake; the ele- 8

gage to be due by reason of default in payment essential to estoppel of reliance on the ment of interest, and on July 14, 1914, filed conduct of another to the detriment of the par- its complaint in foreclosure, making parties ty complaining being wanting.

defendant the mortgagors, Louis F. Hachez [Ed. Note.--For other cases, see Estoppel, Cent. Dig. 88 69–71, 73; Dec. Dig. Om 29(1).]

and wife, the junior mortgagee, W. H. Mat

thews, and certain junior lien claimants. Department 1. Appeal from Superior

The senior and junior mortgagees entered Court, Spokane County; J. Stanley Web

into a stipulation by which they agreed to ster, Judge.

make the subsequent grantees, Shotwell and Action by International Mortgage Bank

wife, Sprague, and Moore, parties defendant, against Louis F. Hachez and others. From

and the court on October 15, 1914, made an a judgment against defendant C. C. Moore on

order to that effect, and granted defendant the cross-complaint of W. H. Matthews, said

Matthews leave to amend his answer so as Moore appeals. Judgment on cross-com

to conform to the order. The amended anplaint reversed and remanded, with direc

swer and cross-complaint of Matthews, the tions to dismiss as to appellant.

junior mortgagee, was filed October 22, 1914, R. P. Woodworth, Seabury Merritt, and 0. together with the summons requiring Moore, C. Moore, all of Spokane, for appellant. Sprague, and the Shotwells to appear and John M. Gleeson and A. G. Gray, both of defend such cross-complaint. Spokane, for respondent.

The cross-complaint alleged the execution

of the two junior mortgages in favor of W. FULLERTON, J. This appeal is founded H. Matthews, one for the sum of $1,200, on on the cross-complaint of a junior mortgagee, which a 'balance of $30, with interest, is alseeking to enforce a deficiency judgment leged to be unpaid, and one for $660, on against 0. C. Moore as a subsequent grantee, which it is alleged that no payments have who is alleged to have assumed the mortgage been made except interest up to December indebtedness. There was no contest over 30, 1913; that the mortgagee had elected to the foreclosure of the senior mortgage, and declare the whole amount due, under the no deficiency judgment sought by the senior terms of the mortgages; that Moore, as a mortgagee against the subsequent grantees subsequent grantee, assumed and agreed to of the original mortgagor.

pay the mortgages; and that Moore had [1] On. June 7, 1910, Louis F. Hachez and paid all installments of principal and inwife executed a mortgage on lot 3, block 2, terest thereon up until November 28, 1913. Jerome Park addition to Spokane, Wash., The prayer of the cross-complaint was for to secure the payment of a promissory note foreclosure of the two junior mortgages, with for the sum of $3,000. The loan was made attorney fees on each foreclosure, and for a by the Union Mortgage Company, and the deficiency judgment against Moore. mortgage to that company was assigned on Moore in his answer admitted the conveyJune 23, 1910, to the International Mortgage ance of the property to him, but denied that Bank, the plaintiff in the foreclosure pro he agreed to assume or pay the mortgages, ceedings. The Hachez mortgage provided and affirmatively alleged that it was disthat the mortgagor should be liable to a de- tinctly understood and agreed between him ficiency judgment. On September 30, 1910, and his grantor, at the time the property Hachez and wife executed a second mort- was conveyed to him, that he would not pergage on the same property to W. H. Mat-sonally assume or obligate himself to pay thews to secure a note for $1,200, payable in such mortgages, and that any provision in monthly installments of $30 each. On De- said deed to the contrary was inserted by cember 9, 1910, Hachez and wife conveyed fraud or mistake, without consideration, and the property to C. D. Sprague, who assumed without his knowledge, consent, or approval; the mortgages thereon. On December 19, that he had agreed to purchase the equity 1910, Sprague executed an additional mort- only of his grantors, and that he had made gage on the same premises to Matthews to payments on the principal and interest of secure a promissory note for $660, payable the mortgages merely to protect such equity; in monthly installments of $30 each, begin- that he did not see or come into possession ning March 1, 1914. On June 22, 1911, of the deed to himself until after the same Sprague conveyed the premises to J. K. Shot had been placed of record; and that he had well, who assumed and agreed to pay the transferred and disposed of all interest in three mortgages and the outstanding city as the mortgaged premises long prior to the insessments. In October, 1911, Shotwell and stitution of the present suit. The reply of wife conveyed the property by warranty deed Matthews denied all the affirmative allegato 0. C. Moore, appellant here, who himself I tions of Moore's answer, except the allega

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