Department 1.

(182 P.)

the appellant took possession. But in the Appeal from Superior Court, Spokane absence of a motion to make definite and cerCounty. tain, according to our view of the law as

Forcible entry and detainer action by B. hereinafter expressed, appellant could not be

F. Williamson and H. B. Purcell, copartners doing business under the firm name and style of Williamson & Co., against Daisy P. Hallett. Judgment for plaintiffs, and defendant appeals. Affirmed.

heard to complain, and we think the demurrer was properly overruled.

[2, 3] Appellant argues that to warrant a recovery in an action of this kind the conventional relation of landlord and tenant is indispensable and must be clearly established. W. C. Donovan and Geo. H. Armitage, both Conceding this to be the law, it does not folof Spokane, for appellant. low that such a relationship can be created F. E. Langford and Lucius G. Nash, both only by express agreement between the parof Spokane, for respondents.

ties. Sheridan v. Doherty, 181 Pac. 16.

There may be, and frequently is, an implied contract which just as certainly creates the conventional relationship.

"The relation of landlord and tenant may be created by implication or by express contract. The law will, in general, imply the existence of a tenancy wherever there is an ownership of land on the one hand and an occupation by permission on the other; for in such cases it will be presumed that the occupant intended to pay in many cases, where there has been no disfor the use of the premises. It will be implied, tinct agreement between the parties, or where, from various causes, the agreement may have ceased to be operative." 1 Taylor, Landlord & Tenant (9th Ed.) § 19.

So here, as found by the trial court and established by the testimony, as we read it, although appellant entered without the

TOLMAN, J. The facts in this case are sharply disputed in many respects; but after a careful examination of the evidence we are satisfied that the findings of the trial court are amply supported. The proof justifies the following statement: On and prior to May 10, 1918, respondents were the lessees from one Whitten, the owner of the premises in controversy, and were in possession through their tenant, one Cleo De Mar, who operated the property as a lodging house or hotel. The furniture in the hotel was held by De Mar under a conditional sale agree ment in which appellant was the grantor. Default having been made in the payments, appellant claimed a forfeiture of De Mar's rights under the conditional sale agreement; and took possession of the furniture and the hotel on or about May 10, 1918. Respond-knowledge or express permission of respondents had no previous knowledge of this taking of possession, and no express contract was made at any time by them with appellant as to her occupancy of the premises, or as to the payment of rent therefor. Finding appellant in possession about the 10th of May, respondents demanded rent from her, and renewed the demand on several occasions thereafter without success, and finally, on June 20, 1918, they caused a three-day notice in the alternative, to pay rent or surrender the premises, to be served upon her. This being uncomplied with, this action was brought under the forcible entry and detainer statute.

ents, yet they immediately gave their permission by demanding the rent; and the notice to quit or pay rent in itself shows permission on their part. While we are convinced that from the facts shown the law will imply a tenancy and an agreement to pay rent, yet, if there was no permission, the Legislature has put the question at rest in this state by statute (Rem. Code, § 8805), which reads:

"Whenever any person obtains possession of premises without the consent of the owner or other person having the right to give said possession, he shall be deemed a tenant by sufferance merely, and shall be liable to pay reasonable rent for the actual time he occupied the premises, and shall forthwith on demand surrender his said possession to the owner or person try, and all his right to possession of said premwho had the right of possession before said enises shall terminate immediately upon said demand."

[1] Appellant complains first of the overruling of the demurrer to the complaint be cause it does not plead that the conventional relationship of landlord and tenant existed between the parties. The complaint alleges ownership and right of possession in respondents; that on May 10, 1918, appellant entered into possession and has ever since occupied the premises; the reasonable rental value; the failure to pay the same or any part thereof; the service of the notice in the alternative; and the failure to comply with such notice. The only deficiency (if it can be so called) in the complaint, which is pointed out or which we have discovered, is the HOLCOMB, C. J., and MACKINTOSH, failure to plead how and under what terms MITCHELL, and MAIN, JJ., concur.

The defense urged and mainly relied upon in the trial court was that the appellant was never in possession at all; and, the evidence being such as to settle that question contrary to her contentions, the judgment is affirmed.

In a proceeding to condemn strips of land for a highway, measure of damages is the fair market value of land actually taken, together with the depreciation, if any, of the owner's land caused by the taking, or, in other words, the difference between the market value of the land immediately before and after the appropriation, less any such sums as the land will be actually enhanced in value by the construc

tion of the road.

2. EMINENT DOMAIN 222(6)-CONDEMNATION PROCEEDINGS-INSTRUCTIONS.

In a proceeding to condemn land for a highway, it was not necessary for the court in its instructions to define general or common benefits and then tell the jury they could not consider such benefits, but it was sufficient to submit to the jury the exact measure of damages and measure of benefits which they were to consider and determine.

Part of instruction No. 8 as follows:

"If you find that respondents' lands in either or both instances are damaged as herein before defined to you more than they are so benefited by the taking of the lands sought to be condemned, then the difference between the amounts of damages found by you under these instructions and the amount of such benefits, in case you find the respondents are so benefited by such each of the cases in favor of the respective retaking, should be the amount of your verdict in spondents."

And in giving part of instruction No. 8 as follows:

"If you find from the evidence that the respondents in one or both of the cases are so benefited by the construction and opening of said road as much or more than they are damAppeal from Superior Court, Whitman aged thereby, as damages are hereinbefore deCounty; R. L. McCroskey, Judge.

Department 1.

Proceedings by the State of Washington against William V. Kelley and others to condemn land for road purposes. From judgments assessing damages, the defendants appeal. Affirmed.

A. E. Gallagher, of Spokane, for appellants.
Lindsay L. Thompson, Glenn J. Fairbrook

and John H. Dunbar, all of Olympia, for

the State.

HOLCOMB, C. J. This appeal involves two proceedings brought by the state to condemn for road purposes certain lands in Whitman county owned by appellants, consolidated for trial and tried together. In the proceedings below the appellants were designated as respondents.

Appellants assign and rely for reversal of the judgment on alleged errors of the court in refusing to give a certain instruction requested by them and in giving and refusing to withdraw from the jury certain parts of instructions.

The instruction requested by appellants and refused is as follows:

"You are instructed that in arriving at your verdict in each of these two cases you will not 'consider any general benefit to any of the land involved in either of these two cases by reason of any increased value of such land which is common to the neighborhood or community generally and which arises from the supposed advantage which will accrue to the community generally by reason of the construction of the road in question."

fined to you, then you should find for such respondents in either instance in nominal damages only."

On the submission of the case to the jury they returned a verdict in favor of appellants for $607. A motion for new trial was unin favor of appellants for the above sum. successfully interposed, and judgment entered

It is first contended that the court did not

anywhere during the trial or in its instruc

tions to the jury define or tell the jury what were special benefits or what were not special benefits that could be considered in these cases in arriving at their verdicts, but instead, by refusing to give the requested instruction and giving those parts of instructions Nos. 4 and 8 complained of, the court permitted the jury to consider the increased market value of the land by reason of the increased facilities of travel caused by the construction of the road. It is earnestly insisted that only such special benefit to the land can be offset against damages as are peculiar and special to the remaining land by in some way affecting the corpus of the remaining land; that this special benefit must be one that is not enjoyed in common, to a greater or less degree, by the neighborhood in general.

These being condemnation proceedings on behalf of the state for the purpose of a public highway the court followed the principle announced in Great Northern Ry. Co. v. State, 102 Wash. 348, 173 Pac. 40, L. R. A. 1918E, 987, allowing special benefits to be offset against the damages to the land not

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

(182 P.)

taken on behalf of the public, and the only or some special facility afforded the land question involved is, What are special benefits which may be offset against damages to the land not taken in such case?

The part of the statute alleged to have been violated makes it a misdemeanor—

whole and consider that they properly sub-the contention and dismissed the prosecumitted the question of damages and special tion. The state appeals. benefits to the jury. It was not necessary to define general or common benefits and then tell the jury they could not consider such benefits, but it was sufficient to submit to the jury the exact measure of damages and measure of benefits which they were to consider and determine. This, we consider, was done by the instructions, and we find no er-porate limits of any city of the first class, any ror therein.

The judgments are affirmed.

MITCHELL and TOLMAN, JJ., concur. MACKINTOSH and MAIN, JJ., concur in the result.

The Legislature, in creating an offense,

may define it by a particular description of the
acts constituting it, or it may define it as an
act which produces or is reasonably calculated
to produce a certain defined or described re-
sult; and a statute is not void for indefiniteness
and uncertainty because it does not specifically
point out the acts which constitute the crime.
2. CRIMINAL LAW 13-INDEFINITENESS OF
STATUTE-INJURY TO STREET.

Laws 1915, p. 65, making it an offense for any person to drive, propel, etc., upon any city street any vehicle or object of such weight as to destroy or permanently injure the street, is not void for indefiniteness and uncertainty.

Department 2.
Appeal from Superior Court, Snohomish
County; Ralph C. Bell, Judge.

R. M. Brown and E. H. Meiklejohn were prosecuted of a violation of Laws 1915, p. 65, relating to the driving, moving, etc., of objects of such weight as to destroy or permanently injure streets, etc. From a judgment dismissing the prosecution, the State appeals. Reversed and remanded.

John Sandidge, of Everett, for the State. Alexander & Bundy, of Seattle, for respondents.

draw, move, convey or transport, or cause to for any person to drive, propel, be driven, propelled, drawn, moved, conveyed or transported, over, upon, along or across any public street, road or highway, without the cor

vehicle or object which, with or without its load, shall be of such weight *

as to destroy or permanently injure such street, road or highway or the surface, foundation or other Section 1. part thereof. *

A further clause of the statute limits the load in any case to 24,000 pounds. The complaint, however, was founded upon the provisions of the statute quoted; the charge being that the defendants drove over the highway certain motortrucks, heavily loaded with sawlogs, "which said trucks and logs, because of their weight and method of loading, permanently injured said highway and the paved surface thereof." does not definitely and clearly define the of[1] The objection to the statute is that it fense intended to be denounced by it. It is argued that a statute, to be free from the objection of indefiniteness and uncertainty, must be so far specific that a person may know in advance whether his act will or will not be a violation of the statute; and that this statute is not thus specific, since the operator of the vehicle cannot know until he actually makes the trial whether the load will or will not permanently injure the highway. In other words, the contention is that a statute, to be free from the objection that it is indefinite and uncertain, must specifically point out the acts which constitute the crime, not merely prohibited results produced by acts. But such is not the rule. The legislation, in creating an offense, may define it by a particular description of the acts constituting it, or it may define it as an act which produces, or is reasonably calculated to produce, a certain defined or described result. 16 C. J. 67. If this were not so, it would be easy to find many statutes now upon the books which are open to the objection of uncertainty, but which have heretofore never been suspected of that fault. As illustrations: The statute making it an offense to willfully disturb any re

FULLERTON, J. Upon a complaint filed in a justice court of Snohomish county religious meeting (Rem. Code, § 2499), any asspondents were convicted of violating the sembly or meeting not unlawful in its charprovisions of chapter 30 of the Session Laws acter (Id. § 2547), or any school meeting of 1915, and sentenced to pay a fine. They (Id. 8 4697), or the Legislature or either appealed from the judgment of conviction house thereof (Id. § 2337), are all statto the superior court of the county named, utes which do not specify the particular and in that court made the contention that acts which will constitute the disturbance, the chapter of the laws upon which the pros- yet no case can be found where they have ecution was based was void for indefinite- been held invalid for that reason, while ness and uncertainty. The court sustained there are many which have allowed convic

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

(182 P.)

tions thereunder to stand. Other illustra-der the law as defined by the court. The fact tions, without specifically enumerating them, that the statute groups together various means can be found in the statutes against mali- by which the end may be accomplished and cious mischief, injury to public utilities, in- makes any one of them an offense when done, juries to property, the statutes defining and to attain the object denounced by the act, does not render such statute uncertain and void. punishing vagrancy, obstructing an officer Such legislation has received the sanction of a in the discharge of his duty, publishing ar- practice extending back to time immemorial, ticles tending to excite crime or a breach and we need only refer to our crimes act, in of the peace, and the like, all of which de- which there will be found numerous instances fine the crime by the result it produces rath- of legislation of this sort from the earliest peer than by the specific acts constituting riod in the history of this state down to the present time, and among which may be menthe offense. tioned statutes relating to arson, burning, forgery, abortion," etc. State v. Quinlan, 86 N. J. Law, 120, 91 Atl. 111.

Another illustration is the statute directed

against criminal anarchy (section 2563 of
the Code [Rem.]). That statute makes it a
felony to advocate, advise, or teach the duty,
necessity, or propriety of overthrowing or
overturning organized government by force
or violence, or to organize or to help organize,
or to become a member of any society, group,
or assembly of persons formed to teach or
This statute is
advocate such doctrines.
more general in its definition of the acts
constituting the offense than is the one
at bar, yet in State v. Lowery, 177 Pac.
355, a conviction under it was upheld by
this court. In the original brief the point
that the statute was void for uncertainty
was not made and was not noticed in the
opinion, but the petition for rehearing, which
was overruled, pointed out and thoroughly
argued the objection.

In State v. Stuth, 11 Wash. 423, 39 Pac.
665, the defendant was informed against for
This stat-
disturbing a religious meeting.
ute, as we have shown, denounces the of
fense, but does not define the specific acts
which shall constitute the offense. The ob-
jection was made that for this reason it
was void for uncertainty, but the statute
was upheld and the conviction sustained.

In New Jersey the statute made it an offense to encourage, justify, praise, or incite the unlawful burning, destruction of private or public property, or advocate, encourage, justify, praise, and incite assaults upon the army of the United States, the national guard, or the police force of any municipality by speech, writing, or printing, in public or private. On an appeal from a conviction had under the statute it was urged that the statute was void because uncertain in describing the offense. The court

there said:

"This contention is palpably unsound. A plain reading of the statute makes it manifest that it is not open to the attack leveled against it. There is no organic law or rule of sound public policy that requires the Legislature to define the meaning of English words in common and daily use. This statute, like every other legislative act, is subject to judi⚫cial interpretation. When the occasion arises

* *

it will become the province of the court to de

an 'incitetermine what constitutes in law ment,' or, as the case may be, under the statute, and for the jury to determine the facts tending to establish a breach of the statute un182 P.-60

In Stewart v. State, 4 Okl. Cr. 564, 109 Pac. 243, 32 L. R. A. (N. S.) 505, the defendant was convicted under a statute making it a misdemeanor to commit any act which grossly disturbs the public peace. On the appeal it was urged that the statute was void for uncertainty because it did not specify the particular acts constituting the ofThe court refused to sanction the fense. contentions, pointing out that it was no more uncertain in the respect claimed than were many other statutes which the courts have upheld. In the course of the opinion the court said:

"Now, in creating an offense the Legislature, we apprehend, may define it by a particular description of the act or acts constituting it, or it may define it as any act which produces or is * * If the statreasonably calculated to produce a certain defined or described result. ute in question is void for uncertainty because the Legislature failed to enumerate or describe the particular acts constituting it, then what can be said of the statutory definition of murder, and especially the second subdivision thereof, which says that homicide is murder 'when perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual'? The statute under consideration says that 'every person who willfully and wrongfully commits any act which grossly disturbs the public peace is guilty of a misdemeanor.' Is one any more uncertain than the other? In the former the act must be imminently dangerous to others and must evince a depraved mind, regardless of human life, and must result in the death of a human being. In the latter the act must be willful and wrongful, and it must produce a certain result, namely, the gross disturbance of the public peace."

[2] It is clear, we think, that the stat ute in question is no more subject to the objection of uncertainty than are the statutes referred to, or the statutes upheld in the cases cited. Neither define the particular acts which constitute the offense, but denounce all acts which produce a certain defined or described result. Since it is within the province of the Legislature to so create offenses, we cannot conclude that the statute is void for uncertainty.

We have not overlooked the argument to