Appeal from superior court, King county; Boyd J. Tallman, Judge. Injunction by Ferdinand Schwede against the Hemrich Brothers Brewing Company to restrain the obstruction of a public street. From a judgment for defendant, plaintiff appeals. Reversed. 7, and 8, in block 7, and lot 8 in block 8, in said addition to said city. That the premises of the said plaintiff and those of the defendant abut upon Eighth avenue south in the city of Seattle, which said Eighth avenue south is one of the public streets of said city. (2) That on or about the 20th day of H. E. Foster, for appellant. Preston, Carr March, 1901, the defendant commenced the & Gilman, for respondent. REAVIS, C. J. Plaintiff is the owner of two lots in block 6, Judkins' addition to Seattle, which abut on Eighth avenue south. Defendant owns five lots in blocks 7 and 8, abutting on the same street, upon which it is constructing and intends to operate a brewery, and, for the purpose of furnishing supplies to the brewery and shipping products therefrom, is about to grade and excavate the street, construct a railroad thereon, and lay a track up and against the front of plaintiff's lots. He alleges that his access to his home will be interrupted, that an additional burden will be placed upon the street, and that his property will be diminished in value by the construction of the railroad, and prays for a perpetual injunction against the operations of defendant having in view the construction and operation of the railroad. The answer denies generally the allegations of the complaint, except that defendant is erecting and intends to operate a brewery upon its said premises, and that it is constructing a railway or switch on Eighth avenue south for the purpose of transporting supplies to and products from its brewery. For affirmative defense, defendant sets up that the Columbia & Puget Sound Railway Company is a railroad corporation duly organized by law, and engaged in operating a railroad in this state; that said railroad has a right of way through said Eighth avenue south and in front of plaintiff's lots, and is continuously and daily operating trains over its own tracks; and the track projected, when constructed by defendant, will be a part of the system of said railroad, and a spur running to the brewery; and, for further defense, that said street was platted and dedicated as a public street, that the fee thereof is vested in the city, and that defendant is constructing its railway under the control and by the authority of the city. construction and excavation, for the purpose of building a railroad or switch in front of plaintiff's said premises; that about said time, and immediately prior to the commencement of this action, the said defendant constructed and made an excavation in front of said premises from one to about three feet in depth, and about twelve feet in width; that in so doing said excavation overreached plaintiff's premises about one and one-half feet at the top of the excavation, and about eight inches at the bottom thereof, on the south half of his lot. (3) That it was and is the intention of said defendant, in the making of said excavation, to prepare a road or bed upon which to lay the railroad track or switch connecting its own premises, on which it was constructing a brewery, with the track of the Columbia & Puget Sound Railroad Company; and it was and is the intention of said defendant to construct said track wholly in said Eighth avenue south, a public street of the city of Seattle; and it never was and is not now the intention of the defendant to in any way encroach upon the property of the plaintiff or any part thereof; and the act of said defendant in overreaching plaintiff's property was by mistake, and unintentional on its part. That said excavation was made without the consent and against the will of the plaintiff. That about the time of the commencement of said excavation said defendant obtained from the board of public works of the city of Seattle a permit in writing to construct a railroad or switch in and on Eighth avenue south, and in front of plaintiff's premises, for a period of three years from the date of issuing of such permit. That said defendant never acquired any franchise from the city of Seattle for the right to use said street for said switch or railroad. That said Columbia & Puget Sound Railroad Company is maintaining, and for a long time past has maintained, a track upon said Eighth avenue south in front of plain1. No bill of exceptions or statement of tiff's premises, and has and does continuousfacts has been certified in the case. A de- ly operate trains on said road. That the exmurrer was interposed by plaintiff to the af- cavation and proposed road intended to be firmative defenses of the answer, which was built by the defendant lies east of the middle overruled, and the case was tried. The su- of said Eighth avenue south, and said spur perior court made the following findings of or track being constructed by the defendant fact: "(1) That the plaintiff herein is, and was intended to connect with said Columbia for many years prior to the commencement & Puget Sound Railroad, and for the purof this action was, the owner and seised in pose of transporting products of the brewery fee simple of lot numbered 5, block 6, Jud- being constructed by the defendant upon its kins' addition to the city of Seattle, Washing- property to said railway track of the Columton, and the same is, and for many years bia & Puget Sound Railroad Company. (4) last past has been, plaintiff's home and resiThat the construction of said switch or spur dence. That the defendant is the owner and in Eighth avenue south, as intended by the seised in fee simple of lots numbered 5, 6, ❘ defendant, would not affect the plaintiff dif (6) ferently from the general public, and the injury suffered by the plaintiff by reason of the construction of a railroad in Eighth avenue south, as intended by the defendant, would not be different in character from that which the general public would suffer. That that portion of Eighth avenue south upon which the premises described in these findings abut is in an addition to the city of Seattle known as Judkins' addition; that the original proprietor of said Judkins' addition, in platting the same, dedicated the streets and alleys therein, including said Eighth avenue south, to the public." The injunction against the construction of the railway in the street was denied. The only errors properly assigned are the overruling of the demurrer to the affirmative defenses, and exception to the conclusions of law as flowing from the findings of facts. These may be considered together. It is apparent that the first conclusion of law, "that the fee of said Eighth avenue south is in the city of Seattle, and that the plaintiff has no right, title, or interest therein," is erroneous. It is true, there are some authorities supporting it, but the better view seems to be that it is immaterial whether the city or the plaintiff owns the fee. Discussing this question, Elliott, Roads & S. (2d Ed.) § 697, concludes: "But, in any case, whether he owns the fee or not, we think he is entitled to compensation when the railroad deprives him of his right of access;" and the authorities cited fully support the text. This rule has been, directly approved in this state. In Hatch v. Railroad Co., 6 Wash. 1, 32 Pac. 1063, it was declared: "Even if it be admitted, for the purposes of the demurrer, that the fee of the street is in the city, as claimed by respondent, it does not follow that the appellants have not sustained direct and immediate damage by the building of the railroad in front of their premises. In any event, if the appellants' property has been damaged in a manner different from that of the public generally by the appropriation of the street for railroad purposes, they are entitled to compensation; and damages, to be recoverable, are not confined to the land itself, but may only affect that which is incident thereto and necessary to the use thereof. The owner of a lot on a street in a city has a right to the use of the adjoining street which is distinct from that of the public, and such right is as much property as the lot itself (Rude v. City of St. Louis, 93 Mo. 408, 6 S. W. 257; Burkam v. Railway Co., 122 Ind. 344, 23 N. E. 799), and cannot be taken away, or injuriously affected, without compensation." In State v. Superior Court of King Co. (Wash.) 66 Pac. 385, it was observed: "The right to the use and possession of a lot abutting onto a public street is property. The right to light and air and access is equally property. These are rights that are a part of the consideration when the property is purchased. Without this right, cities would not be built, be cause they could not be maintained; and the modern authorities are uniform that these are rights which are guarantied by constitutional provisions similar to ours. A very interesting and instructive case on this proposition is Story v. Railroad Co., 90 N. Y. 124, 43 Am. Rep. 146, where the authorities are reviewed at length, and the conclusion reached that upon the purchase these rights become at once appurtenant to the lot, and form an integral part of the estate, and it makes no difference whether the streets were dedicated by the corporation or by individuals; citing Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224, in support of that proposition, where it was held that there was no substantial difference between streets in which the legal title is in private individuals, and those in which it is in the public, as to the rights of the public therein." See, also, Kaufman v. Railroad Co., 11 Wash. 633, 40 Pac. 137. But it is not accurate to designate the public control of streets and highways in this state as a fee. The statutes declare the effect and purpose of the dedication, to the public, by a city plat such as the one in controversy here. Section 1264, 1 Ballinger's Ann. Codes & St. declares them public highways; and section 1266 puts them under control of the corporate authorities. Sections 1269 and 1270 provide that, upon vacation of a street, it shall vest in equal proportions in the abutting lot owners; and section 1276 declares the effect of dedication. But the case of State v. Spokane St. Ry. Co., 19 Wash. 518, 53 Pac. 719, 41 L. R. A. 515, 67 Am. St. Rep. 739, is cited by counsel for respondent as sustaining ownership of the fee in the city. In that case it was urged by the defendant, an electric railway company, in answer to mandamus to compel its operation, that it had no city franchise through a platted addition, but only a license from the owner of the property platted. The point the court had in view was the effect of a dedication by plat to the public, and it was held that the plat, when executed, was to the public; that is, if conditions were attached to the dedication, the conditions, if inconsistent, fell, and the dedication was valid for the purposes intended. Section 1276, 1 Ballinger's Ann. Codes & St., was mentioned, and the case of City of Des Moines v. Hall, 24 Iowa, 234, cited, as to the effect of the statutory dedication; and from the Iowa Case was inadvertently drawn the remark which is cited, "In platted additions to a town, when streets are laid out thereon, the fee belongs to the public." The Iowa Code of 1851, before that court in the case, contained section 637, which declared the effect of the acknowledgment of a town plat as follows: "The acknowledgment and recording of such plat is equivalent to a deed in fee simple of such portion of the land as is therein set apart for public use, or is dedicated to charitable, religious, or educational purposes." It is thus obvious that the Iowa Case could not be in point upon the ownership of the fee, and was pertinent only upon the construction of a statutory dedication. Thus, it may be observed that the fourth finding of fact, to the effect that the plaintiff is not affected differently from the general public, is rather a legal conclusion than fact, which evidently flows from an incorrect view of the effect of dedication under the statute, and cannot avail defendant here. The plaintiff, therefore, by reason of a special interest in the street, may maintain this action. 2. The demurrer should have been sustained to the matter set up in the affirmative defense; i. e., that defendant had authority from the city to put down said railway track. The city could not authorize a private corporation to put a railway track for its own use upon a public street. The answer discloses no right in the defendant to condemn for public uses. But it further appears from the findings that defendant had no franchise from the city to use the street. The granting of such franchise is a legislative function delegated to the city, and reposed in the council, and can only be exercised in the form prescribed by law. The permit granted by the board of public works conferred no rights upon defendant. It thus appears that defendant's operations in the street were without color of right. Under the facts disclosed, the attempted railway track and its operation would be a public nuisance, and, as it has been observed, "the plaintiff is specially injured, and may properly complain." For pertinent authorities in point here, see Younkin v. Traction Co. (Wis.) 87 N. W. 861, and Mory v. Railway Co. (Pa.) 48 Atl. 971. The judgment is reversed, with instructions to the superior court to enter a decree granting a perpetual injunction against the construction or operation of the railway track described in the complaint. GRAHAM et al. v. AMERICAN SURETY CO. OF NEW YORK. (Supreme Court of Washington. June 21, 1902.) APPEAL BOND-PENALTY-DISMISSAL. Where the penalty on an appeal and supersedeas bond was not double the amount of the judgment, and $200 additional, the appeal should be dismissed. Appeal from superior court, Spokane county; Leander H. Prather, Judge. Action by James J. Graham and another against the American Surety Company of New York. From a judgment for plaintiffs, defendant appeals. Dismissed. Voorhees & Voorhees and Danson & Huneke, for appellant. Frank T. Post and Mark F. Mendenhall, for respondents. PER CURIAM. The respondents move to dismiss this appeal for the reason that the alleged appeal and supersedeas bond does not render the appeal effectual, in that the penalty of said bond, which purports to be both an appeal and a supersedeas bond, is not double the amount of the money judgment appealed from, and $200 additional, as required by law. This being true, as shown by the record, under the rule announced by this court in Pierce v. Willeby, 20 Wash. 129, 54 Pac. 999, Town of Sumner v. Rogers, 21 Wash. 361, 58 Pac. 214, and Galloway v. Tjossem, 22 Wash. 103, 60 Pac. 129, the motion will be sustained, and the appeal dismissed. (29 Wash. 6) BRABON et al. v. CITY OF SEATTLE. (Supreme Court of Washington. July 5, 1902.) MUNICIPAL CORPORATION-DEFECTIVE HIGHWAY-UNGRADED STREET-INJURY TO TRAVELER-INSTRUCTION. 1. A city which has recognized a thoroughfare as a public street, and permitted its use thereafter, is liable for injuries caused by defects therein, though the street has never been graded. 2. In an action against a city for the death of a fireman, caused by the overturning of a hose cart on account of defects in the street, an instruction precluding a recovery if the accident was due to the driver's negligence was properly refused where there was no evidence that the driver's negligence was the sole cause of the accident. 3. A driver of a hose cart and a fireman are not fellow servants of a city. Appeal from superior court, King county; E. D. Benson, Judge. Action by Annie Joslin Brabon and others against the city of Seattle. From a judgment in favor of the plaintiffs, the defendant appeals. Affirmed. W. E. Humphrey and Edward Von Tobel, for appellant. G. Ward Kemp and John Kelleher, for respondents. FULLERTON, J. Brabon was a member of the paid fire department of the city of Seattle. He was killed while on the way to a fire by the overturning of a hose cart on which he was riding. This action was brought to recover for his death. On the day of the accident he rode in his accustomed and proper place on the rear platform of the cart, which was being driven by its regular driver, whose duty it was to regulate the speed and select the route of the Icart while on the road from the fire station to the place of the fire. While proceeding on his way at the time in question, the driver turned into an ungraded street, known as "East St. John Street," where he ran onto a root extending from a stump on the side of the traveled way partially across the track, which caused the cart to overturn and fall upon Brabon, inflicting the injuries from which he died. From the judgment in favor of the respondents the city appeals. the sole or the proximate cause of the injury. If there were negligence on the part of the driver at all, it consisted in his failure to discover the root in time to avoid it, or, perhaps, his mistaken belief that the cart would safely pass over it at the speed at which he was going. In either event it was the combined negligence of both the driver and the city which caused the injury, and neither can plead the negligence of the other to avoid liability. It is not a case of negligence of a fellow servant. Brabon and the driver were not fellow servants, and the driver's negligence cannot be inputed to Brabon. To entitle the city to the instruction asked, there must have been evidence before the jury that the driver's negligence was the sole cause of the accident; and, as we say, there was no such evidence. Land Co. v. Mingea (Ala.) 7 South. 666; Railway Co. v. Richart (Tex. Civ. App.) 27 S. W. 918; Kansas City v. McDonald (Kan. Sup.) 57 Pac. 123, 45 L. R. A. 429; Bennett v. Transportation Co., 36 N. J. Law, 225, 13 Am. Rep. 435. The appellant first contends that because the evidence fails to show that the city had graded the street, or had otherwise attempted to improve or prepare it for public travel, it is not liable for injuries caused by defects therein, claiming that as to the city it was a street only in name, and that any one using it did so without invitation from the city, either express or implied, and consequently at his peril. There are cases which maintain the rule that the mere fact of establishing a highway by judicial action does not of itself so open it to the public as to render the municipality liable for injuries that may occur to travelers thereon because of defects therein; and this perhaps is the general rule. There are cases also which hold that a dedication by a landowner of a public street, unaccepted by the municipality in which it is situated either by ordinance, resolution, or other appropriate formal action, or by user short of the period necessary to establish a highway by prescription, will not have that effect. But neither of these rules applies to the facts of the case before us. Here the street was dedicated in 1875. The city has so far recognized it as a public street of the city as to change its name by ordinance, and to lay a sewer along it. It has graded the streets running at right angles to it on each end, and suffered and permitted it to be used without objection by vehicles of all kinds for a period long enough to establish a highway by prescription under the statutes of this state. It may be that the demands upon it did not require it to be graded or cleared for its full width; but the city, after having recognized it as a public street, and permitted its use thereafter, was bound to maintain a reasonably (Supreme Court of Washington. July 3, 1902.) safe way along it, sufficient to accommodate the travel upon it, and is liable, under the rule in this state, to one who, without fault, is injured thereon because of defects therein, while using it for a lawful purpose, and in the manner it was intended to be used. Rowe v. City of Ballard, 19 Wash. 1, 52 Pac. 321; Taake v. City of Seattle, 18 Wash. 178, 51 Pac. 362; Sutton v. City of Snohomish, 11 Wash. 24, 39 Pac. 273, 48 Am. St. Rep. 847; Cowie v. City of Seattle, 22 Wash. 659, 62 Pac. 121: Einseidler v. Whitman Co., 22 Wash. 388, 60 Pac. 1122. It is next said that the court erred in refusing to instruct the jury that, if the accident occurred because of the negligence of the driver of the hose cart, the respondents could not recover. But we fail to find any evidence in the record upon which to predicate such an instruction. It was not shown that Brabon had any power or authority to direct either the speed at which the cart should be driven or the course to be taken by the driver, or that he had any control over the driver whatsoever. Nor was it shown that the negligence of the driver was The objections to the instructions are met by the cases of Howe v. Improvement Co., 21 Wash. 594, 59 Pac. 495; Bussanicz v. Myers, 22 Wash. 369, 60 Pac. 1117, and Abrams v. Railroad Co. (Wash.) 68 Pac. 78. The judgment is affirmed. REAVIS, C. J., and HADLEY, ANDERS, DUNBAR, and MOUNT, JJ., concur. (29 Wash. 1) STATE ex rel. SCHROEDER et al. v. SUPERIOR COURT OF ADAMS COUNTY. LAYING OUT HIGHWAY-POWER OF COUNTY JUDICIAL REVIEW. The action of county commissioners in establishing a public highway is not subject to review by the courts to determine if it is for a public use, notwithstanding Const. art. 1, § 16, providing that the question whether the use for which property is sought to be taken is a public use, is a judicial question, such provision not being a limitation on the legislative power to lay out roads. Original application for writ of review by the state, on the relation of Albert Schroeder and others, against the superior court of Adams county. Writ denied. W. W. Zent and Sullivan, Nuzum & Nuzum, for relators. WHITE, J. This is an application for a writ of review. The affidavit and petition show that on the 2d day of February, 1900, John Schmidt and others presented to the board of county commissioners of Adams county a petition in writing praying for the establishment and laying out of a county road upon a certain route described therein; that thereafter said John Schmidt filed with the board his bond as required by law, and the board thereupon ordered a survey to be made by the county surveyor, and appointed three viewers to view said proposed road and report to the board; that on the 3d of July, 1900, the county surveyor and the viewers filed with the board a plat showing the proposed route of the road, and report thereon, in which report the viewers recommended that the road be established according to the plat thereof filed by the county surveyor; that thereupon the board fixed the 4th day of October, 1900, as the day for hearing said petition and the report of the viewers, and that thereafter the board of county commissioners proceeded to hear the viewers' report and the said petition, and to hear evidence for and against said petition and report, and after hearing said evidence the board found that said road should be established as prayed for with the exception of a slight variation; that the board then determined that said proposed road was a public use and benefit, and for the public use and convenience; that the board then made an order directing that said road be opened in accordance with the surveyor's plat and field notes filed therein, and the board then and there awarded damages to the various landowners over which said road would pass, except those who had waived their claims thereto, and the board fixed the damages to the relators at $65, and this amount was thereafter tendered to the relators, and the same was refused. The road proposed and ordered laid out and established runs through, across, and over and onto the lands of the relators, as described in the petition for the laying out of the road. Thereafter, after the refusal by the relators to accept said damages, the board ordered and directed the county attorney to institute, in the name of the county, condemnation proceedings as provided by law for the taking of private property for a public use. Thereafter the county attorney filed in the superior court of Adams county a petition for such purpose, wherein Adams county is plaintiff and the relators are defendants. The relators were served with process as required by law, and thereafter the case came on to be heard before the court, and was called for trial. Thereupon the defendants requested the court to hear and determine the question of public utility and necessity before a jury be called to assess the damages to the relators. The judge of the court thereupon, upon his own motion, made and entered the following order: "This cause came on regularly this day for trial, C. L. Holcomb, prosecuting attorney for said Adams county, appearing for the petitioner, and W. W. Zent for the defendants, and at the time the case was called for trial, and before the jury was impaneled to try said cause, the defendants offered to prove that the road petitioned for was not one of gen eral utility, and objected to the impaneling of a jury until the court should first hear testimony and decide whether or not said road was one of general utility and necessity, and ought to be established; but the court ruled that the decision of the board of county commissioners of said Adams county that said road petitioned for was one of general utility, and should be opened and established, was final and conclusive, and binding upon the court, and that the only question opened to inquiry in this court was the amount of damages to be allowed and paid to the defendants, to which ruling of the court the defendants excepted, and exceptions were allowed." Thereupon the court called a jury to assess the damages to be paid to the said relators, and refused to permit the relators to interrogate any witness as to the utility or necessity of said road, to which ruling of the court defendants duly excepted, and their exceptions were entered in the record. The jury was impaneled and sworn, heard the evidence adduced by the plaintiff and relators, and, after being instructed by the court, retired to deliberate upon its verdict, and thereafter returned a verdict assessing the damages to be paid to relators at the sum of $65, whereupon the jury was discharged. Judgment was entered upon said verdict against Adams county, and by said judgment it was ordered and decreed that said road, as petitioned for by said plaintiff, be established over, through, and across said defendants' land, as prayed for in said complaint. The error complained of for which it is claimed that no remedy by appeal is provided is that the court erred in refusing to determine by competent proof whether or not the road petitioned for was one of general utility and convenience to the public, and that the court erred in granting plaintiff's judgment before determining the necessity for the road, and that the court erred in impaneling a jury before an order finding that the ground proposed to be taken was for public utility. Property used for a public highway is under the direct control of public agencies. The opening and keeping open of public highways is a governmental function. From time immemorial a highway used for the public and controlled by the public has been considered a public use. There is no necessity for a legislative or judicial determination that such a way is for a public use. We must construe the constitution of this state as if that question was considered as settled by the makers of the constitution. As is said by Mr. Lewis in his work on Eminent Domain (page 416): "If we go back a century, and place ourselves in the situation of those who framed the constitutions of the original states, we shall find that the principal purposes, if not the only purposes, for which private property was appropriated, were for ways and mills. The mills were |