appellant

FULLERTON, C. J. The brought this action against the respondents to recover an undivided one-half interest in a certain tract of land situated on Sinlahekin creek, in Okanogan county. A demurrer was interposed and sustained to his second amended complaint, whereupon he refused to plead further, and appeals from the judgment of dismissal entered after his refusal to so plead.

In the complaint it is alleged, in substance, that about the 26th of May, 1885, the appellant settled upon the land in question, which was then unoccupied and unsurveyed government land, and continued in the sole possession and occupancy of the same until about the 6th day of October, 1886, when he sold an undivided one-half interest therein and the improvements thereon to one J. A. Loomis, and formed a copartnership with him to carry on a general merchandise store on the property; that the appellant and Loomis occupied the premises jointly from that time until the 28th day of May, 1888; that the appellant on the last-mentioned date became desirous of leaving the property, whereupon, to settle and fix their mutual rights in the property, he and Loomis entered into the following written agreement, viz.:

"Be it known by these presents, That we, J. A. Loomis of Sinlahekin Ranch, near Sinlahekin Creek, in the County of Okanogan, and Territory of Washington, party of the first part, and Guy Waring, late of the same place, the party of the second part, being the undivided one-half owners of one hundred and sixty acres of land (subject to the paramount title of the United States), located upon Sinlahekin Creek in said County of Okanogan, together with the improvements thereon, and having heretofore been in the joint occupancy thereof, and the said Waring being about to remove therefrom and to leave said Loomis in the sole use, occupation and possession of the same, have agreed and concluded concerning said land and ranch and improvements thereon as follows, viz.:

"(1) Loomis is to pay Waring in cash money upon the signing of this agreement the sum of Two Hundred and Fourteen ($214.00) Dollars as his part of the expense of erecting the dwelling house lately occupied by said Waring and his family on said ranch.

"(2) Loomis is to have the sole use, occupation and possession of said land, ranch and improvements thereon, upon the following terms, viz.:

"(a) He shall keep all boundary posts in position and in every lawful manner protect the exclusive possession thereof, and prevent said land from being jumped as unoccupied lands of the United States, and when the same are in the market, will apply for and obtain patent thereto if he can.

"(b) Loomis is to pay to Waring one-fifth in quantity and quality of hay raised on the ranch each year, delivered on said ranch, and shall have the privilege of buying the same

from Waring for cash at any time before the end of the year in which the same was grown at the current price for hay of similar class and quality, on December 1st, of such year, and in any event, said Loomis shall take one-fifth of the hay at the end of the year in which it is grown, and pay Waring therefor in cash money the current price of hay of similar class and quality in that vicinity at the end of such year in which the same is grown.

"(c) Loomis is hereby authorized at any time to make a bona fide sale of said ranch, or any part thereof, for the mutual and equal benefit of both parties hereto, and to execute in Waring's name any and all necessary conveyances thereof, and pay the proceeds of such sale one-half to himself and one-half, less 5 per cent. commission, to Waring forthwith, provided that if Waring furnishes a purchaser for said ranch, Loomis shall not be entitled to retain any percentage as commission, but in all other respects this paragraph remains the same.

"(d) Loomis shall have no right to sublet or lease said land or any part thereof to any third person.

"(e) Loomis hereby acknowledges a trust in favor of said Waring for an undivided one-half interest in the whole of said land, and in the event of his obtaining the paramount title of the United States to said land in his own name, he hereby acknowledges an express trust to the extent of one undivided one-half thereof in favor of said Guy Waring for the faithful administration of which said express trust he hereby binds his heirs, executors and administrators to the same extent as himself.

“(f) Waring hereby warrants Loomis in the quiet and peaceable possession of said premises against his own acts and against any and all persons claiming by, through or under him.

"Witness our hands," etc.

It was further alleged that, although the tract was described as containing 160 acres of land, the exact quantity was not known, and it was found afterwards to contain approximately 235 acres, but that it was, at the time the contract was entered into, marked and bounded by fences, buildings, and the contour of certain bluffs which formed a natural fence for a portion of the property, and that the property was generally known as the "Sinlahekin Ranch." It was further alleged that, upon the execution of the contract above set out, the appellant moved from the property, leaving the said Loomis in the sole possession thereof, who continued in such sole possession until his insanity and death, which occurred since the commencement of this action; that said Loomis at all times preceding his death held the property under the contract mentioned, and, in express recognition thereof, paid the rent reserved therein; that between the 18th and 25th days of September, 1901, Loomis locat

ed the land as quartz claims, under the mineral land laws of the United States, under various names and surveys, and filed the same for record, and that the government of the United States on the 9th day of June, 1896, regularly issued patents for the same in the name of the respondent Bogart, but for the use and benefit of Loomis and the appellant; that it was not the intention of the parties to the contract at any time to procure or attempt to procure a patent to the lands mentioned under the homestead or pre-emption laws of the United States, or in any unlawful way, but that the method adopted by Loomis was followed, with the approval and consent of plaintiff, in order that a lawful title to the property might be obtained. The complaint concludes with the official description of the property as contained in the patents for the several mining claims, and with appropriate allegations showing the interests of the several defendants; averring that such interests were acquired subsequent to, and with knowledge of, the rights of the appellant.

The trial court sustained the demurrer on the ground that the contract sued upon was void, and the respondents contend that the ruling was correct, for three reasons: (1) That the contract was without consideration; (2) that the description of the property is ambiguous and uncertain; and (3) that the contract contemplated a fraud upon the government of the United States, and is void as against public policy.

In support of the first contention it is argued that the parties were mere trespassers on the land at the time of the execution of the contract, and consequently the appellant had no interest therein which he could sell to Loomis; that Loomis paid him in cash for all his interest in the improvements on the property at the time of the execution of the contract, and hence there was no consideration for the contract, and the same was void, as a nudum pactum. But this contention is clearly untenable. In the first place, the contract does not warrant the assertion that the appellant was paid for all his interest in the improvements at the time of the execution of the contract. The natural import of the language used is that Loomis was to pay Waring the sum mentioned as Loomis' part of the cost of the dwelling house lately occupied by Waring, not Waring's part of the cost; and this natural construction coincides with the other conditions of the lease, which the construction put upon it by the respondents does not. In the second place, the parties were not trespassers on the land. While the United States statutes declare it unlawful, in certain instances, to inclose parts of the public domain, such statutes have no application when the inclosure is made in good faith, with the intent lawfully to acquire title to the property at some future time under the general laws of the government. While such occupation gives no

right as against the government, the occupants are not technically trespassers. No individual can interfere with their possession or compel them to leave-both the laws of the United States and of this state contain provisions for the prevention of that-and such possessory rights have always been recognized, not only among individuals, but by the courts, as of value, and subjects of barter and sale. Lamb v. Davenport, 18 Wall. 307, 21 L. Ed. 759; Tarpey v. Madsen, 178 U. S. 215, 20 Sup. Ct. 849, 44 L. Ed. 1042. There was, under any view of the contract, a consideration sufficient to support it, as between the parties and their privies.

The second objection is equally without merit. How effective the description might be against an innocent purchaser for value, having only constructive notice, it is not necessary here to determine. But as between the parties the description is clearly sufficient.

The third objection can be sustained only on the assumption that the parties to the contract intended at the time they entered into it to obtain title to the land therein described in fraud of the United States. The contract, however, is far from declaring that such was their purpose. While it does refer to the land as a "ranch," and make provision concerning the payment of rent in hay, and provide that the vendee shall apply for and obtain patent thereto if he can, "when the same are in market," yet these provisions are not necessarily inconsistent with an honest intent on the part of the parties. There are various ways by which title can be acquired to the public land of the United States, even though it be agricultural in character, only some of which are inconsistent with a contract of this kind. This being the case, it will not be presumed that the parties intended to violate the law. On the contrary, it is a rule of interpretation that when a contract is open to two constructions, by one of which it would be lawful, and the other unlawful, the former must be adopted. Moreover, it is alleged in the complaint that the parties had no intent to acquire title to the land in a manner inconsistent with the terms of the contract, or in violation of the laws of the United States, and it is further alleged that they did not so acquire it. It would seem that this alone would be sufficient, as against the naked presumption that the parties might have had some other thought in mind when they entered into the contract.

We conclude, therefore, that the contract is not void on its face, and that the complaint states a cause of action. The judgment will be reversed, and the cause remanded, with instruction to reinstate the case, and to require the defendants to answer to the merits.

DUNBAR, ANDERS, and HADLEY, JJ.,

concur.

(35 Wash. 116)

STATE ex rel. ROYAL v. LINN, Judge. (Supreme Court of Washington. April 26, 1904.)

APPEAL-STATEMENT OF FACTS-RIGHT TO WITHDRAW FOR AMENDMENT.

1. Under 2 Ballinger's Ann. Codes & St. § 5058, providing that, when a proposed statement of facts has been filed and certified, if no proposed amendments thereto are served within 10 days, the statement as proposed shall be deemed agreed to, and shall be certified by the judge, the court has no power to permit the withdrawal, for purposes of amendment, of a statement which has been served and filed, though the time for filing the same has not expired.

Original application for a writ of prohibition by the state of Washington, on the relation of M. G. Royal, as guardian ad litem of Charles H. Dixson, a minor, against O. V. Linn, judge of the superior court of Thurston and Mason counties. Writ granted.

Troy & Falknor, for relator. Israel & Mackay, for respondent.

PER CURIAM. This is an original application in this court for a writ of prohibition, directed to the superior court of Thurston county, and to the Honorable O. V. Linn, judge thereof. The conceded facts are substantially as follows: In a certain cause pending in said court, the relator herein procured a judgment against the Northern Pacific Railway Company. The latter filed and served a proposed statement of facts. Ten days expired, and no amendments were offered by the relator, and thereupon the court certified the proposed statement; but there was included in it, as certified, a page of purported exceptions concerning the court's instructions, which was not included in the proposed statement as originally filed and served. Thereafter this relator moved the court to strike said page from the statement of facts, for the reason that the contents thereof were never made part of the record, and no copy was ever served upon the relator as a part of the proposed statement. The motion also asked the court to correct its certificate to the statement of facts so as to show the truth with regard to said page, and that it was incorporated in the statement without notice to the relator. The facts stated in relator's said motion, and in affidavits supporting the same, were not controverted; but the aforesaid defendant in that action thereupon moved the court for permission to withdraw and strike from the files the said statement for the purpose of amending, refiling and serving the same, with a view to its settlement as amended. The respondent was about to grant the latter motion, when the application herein was made for a writ from this court to prevent such threatened action. An alternative writ was issued, and upon the return thereto a hearing was had.

Respondent urges that, by reason of the order extending the time for filing a state76 P.-33

ment of facts in said cause, the time has not yet expired; that the statement now on file may be withdrawn, and a new proposed statement filed, within the time limit. We think not, within the statute and the former rulings of this court. Section 5058, 2 Ballinger's Ann. Codes & St., provides that, when a proposed statement of facts has been filed and served, if no proposed amendments thereto shall be served within 10 days, the statement as proposed "shall be deemed agreed to," and shall be certified by the judge. In State ex rel. Hersner v. Arthur, 7 Wash. 358, 35 Pac. 120, this court held that in such case the trial judge has no duty of investigation imposed upon him, and shall certify the statement as proposed. The above case was followed, and the same rule adhered to, in State ex rel. Fetterley v. Griffin, 32 Wash. 67, 72 Pac. 1030. By the filing and service of a proposed statement, the proposing party thereby waives any further time included within the statutory or extended limit. In the absence of some fraud in the premises, he must be presumed, in law, to know what the proposed statement contains, and to intend that its contents shall be what they are. When, therefore, he has proposed a statement which is unobjectionable to his adversary, the law provides that after 10 days the court shall certify it as if it were an agreed statement in the case. We therefore think the respondent should deny the motion for leave to withdraw and refile the proposed statement in amended form, and also that the original statement, as proposed, should be certified. The writ should issue accordingly.

(35 Wash. 92)

INGERSOLL et al. v. ROUSSEAU. (Supreme Court of Washington. April 23, 1904.)

DISORDERLY HOUSE-PUBLIC NUISANCE-CONTINUING OFFENSE-LIMITATIONS-ADJOINING PROPRIETORS-RIGHTS RUNNING WITH LAND -EQUITABLE JURISDICTION — INJUNCTION — ADEQUATE REMEDY AT LAW-DEFENSES.

1. The right of a landowner to restrain an adjoining property owner from permitting his property to be used as a house of ill fame is a property right running with the land, and it was therefore immaterial that defendant's premises were so used before plaintiffs purchased their property.

2. The illegal use of property as a house of ill fame constitutes a continuing injury to an adjoining property owner, which is therefore unaffected by lapse of time.

3. The fact that municipal authorities tolerated the maintenance of a house of ill fame on defendant's property was no defense to a suit to enjoin such maintenance by an adjoining property owner.

4. A change in the construction of a building used as a bawdyhouse is no defense to suit to enjoin such use, unless the change did away entirely with the injury.

5. Where an adjoining proprietor was compelled to witness indecent conduct of the inmates of a bawdyhouse, and to listen to the loud, boisterous, and indecent noises made by them and their dissolute companions, he thereby suffered a special injury, different from that

suffered by the general public, and was therefore entitled to enjoin the same, notwithstanding the maintenance of such place was a public nuisance.

6. Since the legal remedies available to an adjoining landowner to suppress the maintenance of a house of ill fame by indictment and by suit for damages are not so effectual as the equitable remedy by injunction, equity has jurisdiction to enjoin the maintenance of such places.

Appeal from Superior Court, Snohomish County; John C. Denney, Judge.

Suit by E. E. Ingersoll and another against E. Rousseau. From a decree in favor of plaintiffs, defendant appeals. Affirmed.

Brownell & Coleman, for appellant.

FULLERTON, C. J. This action was brought by the respondents, who were plaintiffs below, to enjoin the appellant from maintaining or permitting to be maintained houses of ill fame on certain real property owned by him, situated in the city of Everett. The trial was had before the court without a jury, and resulted in a permanent injunction against the appellant.

The trial court found, in substance, that the respondents and appellant owned lots in the city of Everett lying adjacent to each other; that the respondents used their lots as places of residence for themselves and their families, while the appellant had erected on his property certain buildings or structures which he had divided in rooms or compartments known as "cribs," and which he leased to dissolute and abandoned women to be used as places of prostitution. The court further found that these women employ other dissolute and abandoned women as prostitutes, who exhibit themselves in the windows and at the doors of the houses, and on the verandas and sidewalks in front of the same, dressed in an indecent and immodest manner, and solicit men passing along the street to enter the houses for immoral purposes; that these women draw around them drunken and dissolute men, who engage with them in drunken orgies, and in loud and indecent talk, and noisy and boisterous conduct. The court found that the effect of these acts was to render the respondents' properties unfit for residence purposes and undesirable for any lawful business, greatly depreciating them in value; that the injury was irreparable and incapable of being compensated for in damages, and would continue as long as the appellant permitted his premises to be used for such unlawful purposes. The court further found, however, that the respondents purchased their property after the appellant had constructed his cribs and had begun to use his property for the abovementioned purposes. The evidence also, perhaps, justified findings to the effect that the appellant's property is in that part of the city of Everett where the city authorities compel, as far as they can, abandoned and dissolute women to reside, who ply their noxious trade, and also that the appellant, after

the commencement of this action, but before the trial, remodeled his cribs, making them less conspicuous from the streets and surrounding property than they were before; but it appeared that they were still used and intended to be used as bawdyhouses, and it did not appear that this change would materially affect the injury done to the surrounding property by the uses to which they were being put.

The appellant excepted to certain of the court's findings on the ground that they were not supported by the evidence, and has included his exceptions in his assignments of error. While he has not seriously pressed this point in his argument, we have nevertheless examined the evidence with that thought in view, and have no hesitancy in saying that the evidence abundantly sustains the findings. And we may state here, also, that the finding to the effect that the appellant began making this particular use of his property before the respondents purchased their properties, and the additional findings suggested. do not, in our opinion, affect the controversy, although the appellant seems to regard them as of some importance. The right of the respondents to maintain an injunction, if that right exists at all, is a property right. It runs with the land, so to speak, and existed in favor of the grantors of the respondents. and passed to them by the purchase of the properties. Moreover, the injury is a continuing one, constantly giving rise to a new cause of action, and lapse of time bars a recovery only for a completed offense. As to the other matters suggested, if it be true that the city authorities tolerated bawdyhouses on the appellant's property, that fact would not legalize their maintenance there-much less would it authorize their maintenance, if such maintenance injuriously affected the respondents' properties; and the change in the cribs could not be a defense unless it was shown, which it was not, that the change did away entirely with the injury.

The principal contention on the part of the appellant is that injunction is not the proper remedy. It is argued (1) that it was not made to appear that the acts complained of were specially injurious to the respondents, or that they suffered a special injury, differing in kind from that suffered by the general public; and (2) that the respondents had a plain, speedy, and adequate remedy at law for the nuisance, if it be one.

The first of these objections requires no serious consideration. The respondents suffer not only all the inconveniences the general public suffer because of the maintenance of the nuisance, but, in addition thereto, they are compelled to become witnesses to the indecent conduct of the inmates of the houses, and listeners to the loud, boisterous, and indecent noises made by them and their dissolute companions. The injury caused the respondents by these conditions is clearly spe

cial and different in kind from that suffered by the general public, who are not compelled to be either such witnesses or listeners.

The second contention of the appellant, while not entirely free from difficulty, we think is also without merit. It will be remembered that courts of equity have from the earliest times exercised jurisdiction to prevent and abate public nuisances, notwithstanding there have concurrently existed the common-law remedies of indictment and action on the case. The jurisdiction was grounded on the inadequacy of the legal remedies; it being within the power of courts of equity not only to abate an existing nuisance, but to do what the courts of law could not do-interpose and prevent threatened nuisances, and by a perpetual injunction make their remedies effectual throughout all future time. It may be true, as has been suggested, that no case can be found in the earlier English reports where a court of equity has interfered by injunction at the suit of a private person to enjoin the maintenance of a bawdyhouse, but it is equally true that there is no precedent the other way. Doubtless it is some evidence that jurisdiction does not exist in a given case to show that it has never been exercised in like cases, but the persuasive force of such evidence is weak or strong owing to the presence or absence of cases announcing the same or similar principles. Here such cases are plentiful. Precedents are abundant where equity has interfered by injunction to prevent and abate public nuisances against which there existed the same common-law remedies of indictment and action on the case that existed against the maintenance of a bawdyhouse. 2 Story's Eq. Jur. §§ 921, 923, 924: Attorney General v. Forbes, 2 Mylne & Craig, 129, 130. It would seem, therefore, that, if equity refused to exercise such jurisdiction in the case of bawdyhouses, it was for some reason other than for lack of jurisdiction.

The next question is, has the rule been changed by statute?. The statutory legal remedies against public nuisances are much the same as those of the common law. They consist of an information or indictment, and a civil action for damages, with the added element of a warrant of abatement in case of a conviction or of a recovery. The first of these is notoriously inadequate to protect the rights of a person specially injured, for the very sufficient reason that he has neither the right to institute such an action, nor control it after it has been instituted. These rights belong, properly enough, to the public officers, who may or may not see fit to exercise them in the particular case. The remedy afforded by an action of damages is more efficient, but it is nevertheless inadequate, because the judgment cannot be made continuing in its operation. When the damages recovered are paid, and the warrant of abatement is executed and returned, the judgment is satisfied. The guilty party may on the

next day create a new nuisance of the same kind at the same place, and the only legal remedy there for is a new action, a new recovery, and another warrant of abatement, whereas a court can, by the equitable relief of injunction, not only abate the existing nuisance, but it can forbid the creation of other or similar nuisances in the future, entering a judgment that will support an execution whenever its terms are violated. The jurisdiction of the courts to interfere by injunction against public nuisances can rest, under the statute, therefore, on the same ground it rested while the common-law remedies were in force on the ground of the inadequacy of the legal remedies.

For precedents where the modern courts have interfered to prevent and abate public nuisances other than those of the character in question here, we need not look beyond our own decisions. In Carl v. West Aberdeen Land, etc., Co., 13 Wash. 616, 43 Pac. 890, we affirmed a judgment enjoining a boom company from obstructing a navigable stream, and in Smith v. Mitchell, 21 Wash. 536, 58 Pac. 667, 75 Am. St. Rep. 858, we affirmed a judgment enjoining the defendant from obstructing a public highway; each of such acts being subject to the legal remedies of information or indictment and an action for damages. It is true, this is the first instance in this state where the remedy has been sought against a bawdyhouse, but there is nothing in the character of this particular form of nuisance that prevents its exercise against it. If it can be exercised to abate such public nuisances as obstructions to highways, and the like, when they become specially injurious to particular individuals, it would be strange indeed if it were without jurisdiction against this most baneful of all public nuisances, which not only destroys for lawful use all property surrounding it, but corrupts and degrades the morals of the community as well.

But we are not without precedent for the precise case. While the precedents are not many, the majority of those that do exist, and we think the better-reasoned cases, hold that courts of equity have such jurisdiction. The earliest case called to our attention is that of Hamilton v. Whitridge, 11 Md. 128, 69 Am. Dec. 184. There the court noticed the absence of precedent, but rested its decision on analogous cases, the reason and spirit of which supported the rule; saying that there was jurisdiction in equity to enjoin whenever the nature of the injury is such that it cannot be adequately compensated by damages, or, from its continuance or permanent mischief, will occasion a constantly recurring grievance. In Anderson v. Doty, 33 Hun, 160, the jurisdiction was denied; the court saying that a bawdyhouse is a nuisance, because it is a crime, and that the proper tribunal in which to abate it is the criminal court. The appellate court of the same state, however, in Cranford et al. v.