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

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. Gothenburg, 50 Neb. 715, 70 N. W. 237; Pry v. Mankedick, 172 Pa. 535, 34 Atl. 46; Thaxter v. Turner, 17 R. I. 799, 24 Atl. 829; 6 Words and Phrases, 5177. In the text of the authority last cited it is said:

"The word 'park,' written on a block on a map of city property, indicates a public use, and conveyances made by the owner of the platted land by reference to such map operates conclusively as a dedication of the block."

"The city has never done a single act to evidence its understanding that the property was a donation to the public."

We conclude that there was in this case at best nothing but an ambiguous grant to the public by deed or other written conveyance. There was never any acquiescence in the use of it by the public. There was no user or improvement or adverse possession of the block by the public. There has never been any expressed acceptance of the supposed dedication of the block for public purposes. The property has not been separated from the mass of other taxable property. The city never, during the 45 years elapsing after the platting of the land showing "East Park," exercised any proprietorship over it. The

[3] The situation here, however, is distinguished from that in most of the cases above cited by the positive terms of the statutes which we have quoted. We have here, in addition to that situation, the fact that, prior to any use indicating an acceptance by the public or the city acting for the public, what-doubtful and incomplete dedication has been ever indicia of dedication to the public there had been by the plattors and dedicators of this land had been revoked by subsequent reservation of this particular block by their deed more than 37 years ago. After having reserved this particular block by expressions in a deed, they transferred the land, and it was again transferred. If the dedication was ever a donation in intention, it was a revocable donation prior to acceptance or use by the donee. Revocation may be effected in such case by conveying the land as private property. 9 Am. & Eng. Enc. Law, 78.

[4] Since 1882 the county, which has at all times been a taxing power within the state, has levied and collected taxes upon this block. Tax receipts, showing that the city has collected taxes upon this block since its coming into the city limits in 1882, are in evidence. The city has levied two special assessments upon this property within the last 3 or 4 years for public improvements, and caused it to be placed upon the assessment rolls therefor. It is contended by appellant that the city could do this without being understood as waiving any of its rights, for the reason that it can assess itself upon its parks for local improvements, and that it customarily does so, in order to assist the property owners in paying for public improvements. The answer to that is that the city did not assess itself, but assessed this particular property as if the property of another, and so placed it upon the assessment roll. Where there has been no acceptance by the city or the public, either formal or otherwise, the levy and collection of taxes and special assessments shows an intention not

revoked by subsequent .effective action on the part of the dedicators. It was not prior thereto confirmed and made certain by ac-. ceptance and use by the public or the city. The incomplete dedication, if any, was rejected by the inclusion of the block in the mass of taxable property, and the city is estopped to assert it as a part of the public property of Seattle by its act in assessing the same as private property.

The judgment of the trial court is right, and is affirmed.

PARKER, BAUSMAN, MOUNT, and FULLERTON, JJ., concur.

(92 Wash. 153) HOLLOWAY et ux. v. GECK et ux. (No. 13020.)

(Supreme Court of Washington. July 11, 1916.) 1. APPEAL AND ERROR 889(2)-SCOPE OF

REVIEW-PRESUMPTIONS.

Where objections urged against the complaint were met by the proofs offered on the trial, the complaint will on appeal be deemed amended to conform to such proofs.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3621; Dec. Dig. Pleading, Cent. Dig. § 1355.]

889(2);

124-Sur

2. WATERS AND WATER COURSES
FACE WATERS-RIGHT TO DISCHARGE-RE-
LIEF INJUNCTION.

Defendants' act, at the time they owned lands adjoining plaintiffs' lands, in constructing a ditch which turned surface waters drained from a marsh upon plaintiffs' land, was the efficient cause of the injury to such land, which was a continuing one and a subject for injunction against defendants, though they sold the portion of their land immediately adjoining

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

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

[Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. § 142; Dec. Dig.

.-124.]

3. WATERS AND WATER COURSES 126(3)

SURFACE WATERS-RELIEF INJUNCTION. Where the court refused to require ditches to be filled up, a discharge of surface waters from which injured plaintiffs' land, but enjoined the discharge of any waters therefrom, plaintiffs could not complain, especially where the court conceded plaintiffs' right to another action should subsequent events show resultant dam

age.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. 88 141, 142; Dec. Dig. 126(3).]

4. WATERS AND WATER COURSES 126(3) — SURFACE WATERS-RIGHT TO DISCHARGE RELIEF INJUNCTION.

Where defendants, owning land not immediately adjacent to plaintiffs' land, were enjoined from discharging surface waters from a marsh onto plaintiffs' land, plaintiffs, who failed to make the immediate adjoining owner a party, cannot complain that the decree failed to require the ditch on her land to be filled up.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 141, 142; Dec. Dig. 126(3).]

Department 1. Appeal from Court, Island County; John M. Judge.

Superior
Ralston,

Suit for injunction by I. C. Holloway and wife against Jacob H. Geck and wife. From the decree rendered, both parties appeal. Af

firmed.

James Zylstra, of Coupeville, for plaintiffs. LeCocq & LeCocq, of Lynden, and J. A. Coleman and James M. Hogan, both of Everett, for defendants.

from the south marsh which caused it to drain at a lower level. The north and south marshes are on higher land than the center marsh, and all of the marsh lands are higher than the lands to the westward, the natural surface of the lands having a downward slope in a northwesterly direction, the depression continuing westward beyond the lands of plaintiffs. Before the construction of the ditches, when the waters accumulated in the center marsh sufficient to overflow a barrier of about 1% feet in height, they flowed through a depression in the surface till they reached about the center of the Adams 40, when they deflected more sharply to the northwest, and were cast by the natural course of drainage across the northeast corner of the plaintiffs' land. When the defendants constructed their ditch from the center marsh, they followed the natural course of drainage as far as the center of the Adams 40, and there turned the ditch directly west, casting the waters against the lands of the plaintiffs at a point some 500 feet south of where such waters would naturally drain. In the spring of 1913, the defendants turned the marsh waters into the ditch, and they were discharged against the county road which separated the Adams 40 from plaintiffs' land, from which point the water flowed northward, filling the road ditch and seeping under the road, causing the premises about the house of plaintiffs to become wet and miry. To avoid this, the plaintiffs attempted to take care of the water by placing a culvert under the road some 22 feet south of the end of the ditch, and led the waters that way into a short open ditch onto their land. The defendant Jacob Geck assisted in this work. As the waters were discharged from the last-mentioned ditch, they spread out fan-shaped by seepage and flow through and over the land, rendering it boggy and unfit for cultivation. The plaintiffs could have so ditched their own land as to leave themselves practically unharmed, but that would have necessitated casting the water onto their western neighbor. The discharge from the ditches has since recurred at every season when the rains increase the accumulation of surface waters in the marshes. In 1914, the defendants constructed another ditch from the south marsh which led to a point where its waters were so cast as to flow upon the southern portion of the plaintiffs' land, increasing the dampness of the soil on that portion. The water in this ditch began to flow about January 1, 1915, but at the time of the trial this ditch had been plugged up and no water was escaping therefrom. This ditch did not follow the natural course of drainage, and was, in fact, cut through a barrier of cement gravel.

FULLERTON, J. The plaintiffs are the owners of 40 acres of land in Island county, described as the northeast quarter of the southwest quarter of section 23, in township 33 north, range 1 east of the Willamette Meridian. The defendants in the year 1912 owned the whole of the southeast quarter of the same section, and at present own all thereof except the northwest quarter, which has passed into the ownership of a Mrs. Adams. While the defendants held the ownership and possession of the entire tract, they constructed a ditch on their lands which led up to the county road dividing those of plaintiffs from that part of the defendants' lands now owned by Mrs. Adams. The ditch, as it runs through the Adams tract, is covered. The purpose of this ditch was the drainage of surface waters from marshes on the defendants' land. There are three of these marshes, designated by the witnesses as the north, center, and south marshes. For the purposes of draining the north marsh into the center marsh, a ditch was constructed in 1913 through a four-foot barrier. The south marsh has a natural outlet into the 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

ened injury, as it is plain that the injury involved in the instant case is a recurring one and as such subject to restraint by injunc tion.

cover damages claimed to have been suffered | has been completed and is no longer a threatby their maintenance. Mrs. Adams, the present owner of the land upon which was constructed the ditch draining the center marsh, was not made a party defendant. The court, in giving judgment, ignored the question of damages. It decreed that the defendants should be enjoined from diverting the waters from such marshes so as to flow upon the plaintiffs' land at any place other than where, the natural drainage course causes such water to enter or flow thereon, and refused to require the ditches to be filled. It reserved, however, another action in the plaintiffs should subsequent events show a necessity for filling the ditches.. Both parties appeal.

[1] The first contention of the defendants is that the complaint does not state facts sufficient to constitute a cause of action; but we think that all the objections urged by them have been met by the proofs offered on the trial, and we will deem the complaint amended to conform to such proofs.

[3] The plaintiffs contend that the decree does not go far enough, because it does not restrain the drainage from the north and south marshes into the center marsh. Inasmuch as the casting of these surface waters upon any other part of their land than where they were accustomed to flow by natural drainage was enjoined, they can suffer no injury by this act, since the evidence does not disclose that the volume of water passing over their land in the natural course of drainage has been increased by the junction of the three marshes. The waters of the south marsh, in case of heavy rains raising their level, found their natural outlet into center marsh before the construction of the ditch between them. True, the effect of the ditch was to allow it to drain at a lower level than it did formerly, but there is no proof of a resultant injury. Moreover, the trial court in dismissing this branch of the case conceded plaintiffs the right of another action should subsequent events show a resultant damage.

[2] The next contention is that the judgment of the superior court is contrary to the evidence. This is based largely on the fact that the ditch which causes the damage is not located on land belonging to the defendants, but is upon land intervening between the lands of the parties whose title and possession rests in a third person. But the evidence shows that defendants were the owners of this intermediate land at the time the ditch was constructed, and that they still make use of the ditch for the purpose of draining the marsh waters. Their act of turning the waters from the marshes into the ditch is the efficient cause of the injury to the land of plaintiffs, and, since the injury is a continuing one, it is a subject for injunctive relief. The principles governing the case have already been enunciated by this court. Cases presenting almost parallel facts will be found in Noyes v. Cosselman, 29 Wash. 635, 70 Pac. 61, 92 Am. St. Rep. 937, and Sullivan v. Johnson, 30 Wash. 72, 70 Pac. 246. 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 confinement naturally, the upper proprietor may not construct a ditch so as to cast such waters upon his neighbor, to the [latter's] material injury of such neighbor."

See, also, Peters v. Lewis, 28 Wash. 366, 68 Pac. 689, where it is said:

"When surface water is collected and discharged upon adjoining lands in quantities greater than, or in a manner different from, the natural flow, a liability accrues for the injury occasioned thereby. Injunction is also held to be a proper remedy where the injury is a continually recurring one, and cannot be compensated in damages."

This last citation disposes of defendants' contention that plaintiffs should be relegated to an action for damages because the ditch

[4] The plaintiffs further contend that the court should have required defendants to fill the ditch on the Adams land from the point where it departs from the natural depression of the ground; but it is sufficient answer to this to say that the owner of the land through which this ditch passes was not made a party to the action, and the court would not be warranted in authorizing an entry on her land for such purpose. More than this, the defendants are restrained from using the ditch for the purpose of ridding the marshes of the waters. If they cannot use it for that purpose, it matters not to the plaintiffs whether it is filled or left open. The judgment is affirmed.

MORRIS, C. J., and MOUNT, ELLIS, and

(92 Wash. 180) INTERNATIONAL MORTGAGE BANK v. MATTHEWS et al. Appeal of MOORE. (No. 13214.)

(Supreme Cou. of Washington. July 11, 1916.) 1. MORTGAGES 561 ACTIONS AGAINST SUBSEQUENT GRANTEE-EVIDENCE-SUFFI

CIENCY.

On cross-complaint of a junior mortgagee. seeking to enforce a deficiency judgment against a subsequent grantee, evidence held insufficient to justify a holding that the subsequent grantee had assumed the mortgage.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 1609-1621; Dec. Dig. 561.]

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

2. ESTOPPEL-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 had not been changed to his disadvantage by assumption clause which gives rise to this reason of a clause in a deed to a subsequent controversy. grantee assuming the mortgage, or by conduct of the subsequent grantee, the grantee was not estopped to show that the clause assuming incumbrances was inserted by mistake; the element essential to estoppel of reliance on the conduct of another to the detriment of the party complaining being wanting.

[Ed. Note.-For other cases, see Estoppel, Cent. Dig. §§ 69-71, 73; Dec. Dig. 29(1).]

Department 1. Appeal from Superior Court, Spokane County; J. Stanley Webster, Judge.

Action by International Mortgage Bank against Louis F. Hachez and others. From a judgment against defendant C. C. Moore on the cross-complaint of W. H. Matthews, said Moore appeals. Judgment on cross-complaint reversed and remanded, with directions to dismiss as to appellant.

R. P. Woodworth, Seabury Merritt, and O. C. Moore, all of Spokane, for appellant. John M. Gleeson and A. G. Gray, both of Spokane, for respondent.

FULLERTON, J. This appeal is founded on the cross-complaint of a junior mortgagee, seeking to enforce a deficiency judgment against O. C. Moore as a subsequent grantee, who is alleged to have assumed the mortgage indebtedness. There was no contest over the foreclosure of the senior mortgage, and no deficiency judgment sought by the senior mortgagee against the subsequent grantees of the original mortgagor.

The International Mortgage Bank elected to declare the whole of the principal mortgage to be due by reason of default in payment of interest, and on July 14, 1914, filed its complaint in foreclosure, making parties defendant the mortgagors, Louis F. Hachez and wife, the junior mortgagee, W. H. Matthews, and certain junior lien claimants. The senior and junior mortgagees entered into a stipulation by which they agreed to make the subsequent grantees, Shotwell and wife, Sprague, and Moore, parties defendant, and the court on October 15, 1914, made an order to that effect, and granted defendant Matthews leave to amend his answer so as to conform to the order. The amended answer and cross-complaint of Matthews, the junior mortgagee, was filed October 22, 1914, together with the summons requiring Moore, Sprague, and the Shotwells to appear and defend such cross-complaint.

The cross-complaint alleged the execution of the two junior mortgages in favor of W. H. Matthews, one for the sum of $1,200, on which a balance of $30, with interest, is alleged to be unpaid, and one for $660, on which it is alleged that no payments have been made except interest up to December 30, 1913; that the mortgagee had elected to declare the whole amount due, under the terms of the mortgages; that Moore, as a subsequent grantee, assumed and agreed to pay the mortgages; and that Moore had paid all installments of principal and interest thereon up until November 28, 1913. The prayer of the cross-complaint was for foreclosure of the two junior mortgages, with attorney fees on each foreclosure, and for a deficiency judgment against Moore.

Moore in his answer admitted the conveyance of the property to him, but denied that he agreed to assume or pay the mortgages, and affirmatively alleged that it was distinctly understood and agreed between him and his grantor, at the time the property was conveyed to him, that he would not per

[1] On. June 7, 1910, Louis F. Hachez and wife executed a mortgage on lot 3, block 2, Jerome Park addition to Spokane, Wash., to secure the payment of a promissory note for the sum of $3,000. The loan was made by the Union Mortgage Company, and the mortgage to that company was assigned on June 23, 1910, to the International Mortgage Bank, the plaintiff in the foreclosure proceedings. The Hachez mortgage provided that the mortgagor should be liable to a deficiency judgment. On September 30, 1910, Hachez and wife executed a second mortgage 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 monthly installments of $30 each. On December 9, 1910, Hachez and wife conveyed the property to C. D. Sprague, who assumed the mortgages thereon. On December 19, 1910, Sprague executed an additional mortgage on the same premises to Matthews to secure a promissory note for $660, payable in monthly installments of $30 each, beginning March 1, 1914. On June 22, 1911, Sprague conveyed the premises to J. K. Shotwell, who assumed and agreed to pay the three mortgages and the outstanding city assessments. In October, 1911, Shotwell and wife conveyed the property by warranty deed to O. C. Moore, appellant here, who himself

such mortgages, and that any provision in said deed to the contrary was inserted by fraud or mistake, without consideration, and without his knowledge, consent, or approval; that he had agreed to purchase the equity only of his grantors, and that he had made payments on the principal and interest of the mortgages merely to protect such equity; that he did not see or come into possession of the deed to himself until after the same had been placed of record; and that he had transferred and disposed of all interest in the mortgaged premises long prior to the institution of the present suit. The reply of Matthews denied all the affirmative allegations of Moore's answer, except the allega