Industry, is no more a public business than a | statute providing that: "Every railroad com flouring mill, a dairy, a farm, a livery barn, pany or corporation operating a railroad in or a manufacturing plant of any other char- the state of Nebraska shall afford equal facil acter or description. ities to all persons or associations who de The case at bar falls squarely within the sire to erect or operate, or who are engaged principle announced and applied in Missouri in operating grain elevators, or in handling of Pacific Railway Company v. Nebraska, 164 shipping grain at or contiguous to any staU. S. 403, 17 Sup. Ct. 130, 41 L. Ed. 489. In tion of its road, and where an application that case the Supreme Court of the state of has been made in writing for a location or Nebraska had awarded a writ of mandamus site for the building or construction of an to compel the railway company to comply elevator or elevators on the railroad right with an order of the State Board of Trans- of way and the same not having been grantportation, which directed the company to ed within a limit of sixty days, the said railgrant to certain private persons the right road company to whom application has been and privilege of erecting an elevator upon made, shall erect, equip and maintain a side the grounds of the railway company at one track or switch of suitable length to approach of its stations. The complaint upon which as near as four feet of the outer edge of their the order was based recited that the elevator right of way when necessary and in all cases would be used to store the cereal products to approach as near as necessary to approach of the farms and leaseholds of the complain- an elevator that may be erected by the ap ants as well as the products of other neigh- plicant or applicants adjacent to their right boring farms. Upon a writ of error to review of way for the purpose of loading grain the judgment, the court said: " The into cars from said elevator, and for handling order in question, so far as it required the and shipping grain to all persons or associarailroad corporation to surrender a part of tions so erecting or operating such elevators, its land to the petitioners, for the purpose of or handling and shipping grain, without fabuilding and maintaining their elevator upon voritism or discrimination in any respect it, was in essence and effect a taking of pri- whatever. Provided, however, that any elevavate property of the railroad corporation | tor hereafter constructed, in order to receive for the private use of the petitioners. The the benefits of this act, must have a capacity taking by a state of the private property of one person or corporation, without the owner's consent, for the private use of another, is not due process of law, and is in violation of the fourteenth article of amendment of the Constitution of the United States."

of not less than fifteen thousand bushels"and making railroads liable for a fine for failure to obey the command of the statute, was held unconstitutional. The case arose out of two suits based upon the statute. The first was brought by the state of Nebraska In Northwest Warehouse Company v. Ore- to recover a fine of $500. The second was gon Ry. & Nav. Co., 32 Wash. 218, 73 Pac. brought on the relation of the interested 388, a mandamus proceeding to require the party, to compel the extension of a side track. railroad company to extend its track 250 feet and the granting of shipping facilities; the to a grain warehouse, to afford it loading railroad company having refused an app'.cafacilities, this court said: "Under any view tion for a site for an elevator on its rigt of of the requirements of the statute, it certain-way. State v. Missouri Pacific Railway Co., ly cannot be contended that appellant could 81 Neb. 15, 115 N. W. 614, and Farmers' have been required to build a track over land it did not own, or that it was under the duty to go out and buy a right of way for that purpose. In that case the record shows that a deed to the right of way for the extension of the track was tendered the railroad company at the time of the trial.

In Harp v. Choctaw, O. & G. Ry. Co. (C. C.) 118 Fed. 169, the railroad company had for a time permitted the owners of coal mines to load their coal from wagons onto the cars on its commercial switches. It was insisted that, if this method were discontinued, it was the duty of the company to put in a spur track for the benefit of the mineowner. In considering that question the court said: "It must be remembered that the plaintiff in this case was not engaged in any public business, but was simply a private citizen operating the coal mine on his own account."

In Missouri Pacific Railway Co. v. Nebraska, decided by the United States Supreme Court since the case at bar was argued, a

Elevator Co. v. Same, 81 Neb. 174, 115 N. W. 757, were reversed; the court saying: "We are of the opinion that this statute is unconstitutional in its application to the present cases, because it does not provide indemnity for what it requires." The same principle is announced in Chicago, B. & Q. R. Co. v. State, 50 Neb. 399, 69 N. W. 955, and State v. Chicago, Milwaukee & St. Paul Ry. Co., 36 Minn. 402, 31 N. W. 365.

However desirable it may be for Mr. Burnham and others engaged in a like business to have switches and sidings extended to their mills, the fourteenth amendment to the federal Constitution, as construed by the highest federal court and by this court as well, presents an insuperable barrier against compelling such accommodations.

The contention of the Attorney General that the order is promotive of the public convenience, and within the recognized police power of the state, cannot be upheld. We are persuaded, upon both principle and authority, that the Burnham mill is a private

business, and that an order requiring the railroad company to extend a switch or spur track beyond its right of way to afford him better and cheaper shipping facilities is, in substance and effect, requiring the company to devote its property to the private use of another, and is within the protective clause of the federal Constitution.

Where actions to condemn lands separately The judgment is reversed, with directions owned were for convenience tried as one, beto dismiss the petition.

cause the facts involved in each action, except as to their application to distinct lands, were the

RUDKIN, C. J., and CHADWICK and same, the court must limit the inquiry in each MORRIS, JJ., concur.

case to the value of the land taken in that case, and the damages, if any, to the remainder, and must keep the questions to be submitted to the jury as separate as the nature of the case will permit.

[Ed. Note.-For other cases, see Eminent Domain, Dec. Dig. § 219.*] 3. EVIDENCE (§§ 271, 474*)-ADMISSIBILITY

CONJECTURES.

In proceedings to condemn land bordering on a lake to carry out a scheme to make the lake a storage basin by means of dams and a natural ridge 1,000 feet wide at its base as a retention wall on the raising of the waters of the lake, evidence of nonexperts as to whether the ridge will successfully retain the waters of the lake when raised is inadmissible because conjectural, and when it is ascertained that the ridge is ineffectual, the owners of the land may pursue their remedy in an action for the damages sustained.

[Ed. Note. For other cases, see Evidence. Dec. Dig. §§ 271, 474.*]

FULLERTON, J. Since the Supreme Court of the United States holds that a railroad company cannot be compelled without compensation to afford facilities to a private shipper other than it offers at its general public stations, I am constrained to concur in the judgment the majority have directed to be entered in this case. I cannot concur, however, in all that is said in the opinion. I cannot concur in the view that to compel a railway company to stop at points other than its public stations and take on for carriage the property of a private shipper is taking its property for the private use of another in violation of the due process of law clauses in the state and federal Constitutions. As I understand it, the principal purpose for which a railroad is constructed is to carry from one point to another the private property of the individual; that it is for this purpose it has its existence and is given the vast powers and rights it possesses. This function, then, the state may compel it to fulfill. If, therefore, its public stations do not afford an adequate facility for the shipment of the property of a particular individual, I know of no legal reason why the company cannot be compelled, on due compensation, to furnish that particular individual with additional facilities, even to the extent of putting in an additional side track MORRIS, J. The appellant brought two for him. For this reason I dissent from the actions to condemn certain lands in Thurston holding that to do so is to take private prop-county bordering on Lake Lawrence. In the erty for a private use.

(58 Wash. 410)

Department 1. Appeal from Superior Court, Thurston County; W. O. Chapman, Judge.

Actions by the Olympia Light & Power Company against Henry Harris and others and against Henry Harris alone. From judg ments awarding compensation for the land taken, plaintiff appeals. Reversed and re

manded.

T. N. Allen, A. J. Falknor, and Troy & Sturdevant, for appellant. James M. Ashton and Thomas M. Vance, for respondents.

one, Henry Harris and others were made defendants; in the other, Henry Harris was the sole defendant. For the convenience of trial the actions were tried together before the

OLYMPIA LIGHT & POWER CO. v. HAR- same jury, but two separate verdicts were

RIS et al.

(Supreme Court of Washington. May 20, 1910.) 1. EMINENT DOMAIN (§ 126*)—ACQUISITION OF LAND-RIGHT TO RESTRICT USE-EFFECT. A power company seeking to condemn land bordering on a lake to carry out its scheme to use the lake as a storage basin by constructing dams and thereby increasing the waters of the lake so as to flood the land sought to be taken may, during the trial, limit its appropriation by giving to the owners of the land and their successors the right of access to the lake raised or lowered over the lands appropriated for the purpose of watering their stock, boating, fishing, hunting, and domestic purposes, provided such rights shall be exercised without damage to the dikes constructed by the company, and the com

submitted and returned. Upon entry of judgment appeal was taken, and the two appeals are here consolidated and heard together, the same questions being involved in each. The purpose of the actions was the appropriation of lands bordering upon the lake which appellant desired to flood, in its scheme to use the lake as a storage basin for the waters of the Des Chutes river, taking the surplus water from the river in the wet season, and, by means of an aqueduct or ditch, conveying it to the lake, and there holding it until the dry season, when it would be returned to the river for use in appellant's power plant further

down the stream. In order to use the lake as such storage basin, it will be necessary to construct certain dams and dikes, as the waters of the lake when so used will at times be raised to a height of 30 feet above the present level. Between the lake and the river is a natural divide or ridge of land, which it is purposed to use as a wall or dam to confine the water in the lake when the same is raised to the 30-foot line, the water when so raised being on an average 200 feet from the summit of the ridge. During the trial, some question arose as to the damage to be sustained by respondents because of what was contended to be the loss of their riparian rights in the lake; the right to fish, hunt, water their stock, boating, and other domestic uses; whereupon appellant offered the following: "The plaintiff and petitioner herein hereby offers that the claimants or their grantees or successors in interest to the lands, a part of which is appropriated in these proceedings, shall at all times and at any place have access to the lake as it is raised or lowered over the lands appropriated herein, for the purposes of watering their stock, using boats, fishing, hunting, and all other domestic purposes; provided, however, that those rights shall be exercised without damage to the dikes constructed by the petitioner. These rights to be exercised without cost or compensation and to be embodied in the decree herein. L. B. Faulkner, Manager of the Petitioner. Troy & Falknor, Attorneys for Petitioner." This offer, being objected to by respondents, was denied and refused by the court, and petitioner excepting raises thereon its first assignment of error. Further on, a second offer was made as to the character of the dikes, with reference to their safety and security, which offer was also refused by the court upon respondents' objection.

The court below, for the purpose of ascertaining the damages, if any, to the part of the land not taken, treated the lands involved in the two actions as one tract, and in effect so instructed the jury. This was error. The actions were separate, and the ownership of the lands involved was separate and distinct. The actions were tried as one for the convenience of all parties, as the same facts were involved in each action except as to their application to distinct lands; separate verdicts were to be rendered, and it became the duty of the court to keep the questions to be submitted to the jury as separate as the nature of the case would permit. In each action the value of the lands taken in that action, and the damage, if any, to the remainder, should have been ascertained. The same error was permitted to creep into the evidence in ascertaining the value of the lands taken. The inquiry in each case should have been the value of the land taken in that proceeding, and the damage, if any, to the remainder, and in ascertaining that fact it would only be proper to ascertain the fair market value of the land taken irrespective of any benefit, and the condition and effect of the taking, and the purpose of the taking upon the lands remaining, to enable the jury to ascertain if such remaining lands were damaged, and, if so, to fix the amount of such damage to be determined by them in considering any item or element of damage that might be suggested in the testimony.

Another error complained of was in permitting nonexpert witnesses to give their opin ion as to whether the ridge would successfully retain the waters of the lake when raised to the 30-foot contour line. This was improper. The base of this ridge is given as about 1,000 feet wide, and the petitioner, in purposing to use it as a retaining wall or dam for the waters of the lake, when raised, does so upon the theory that it will be sufficient for that purpose and permit of no leakage or seepage. As to whether it will or not is now conjectural, and must be until it is put to the desired use. If it then should be ascertained that it is ineffectual, respondents have their remedy in an action where the damage can be readily and easily determined from the physical facts then existing, and not as a matter of specu

We think each of these rulings erroneous. Appellant could undoubtedly have the damage estimated with reference to any particular method it sought to adopt in the taking and use of respondents' lands. And, if in any sense the use sought to be appropriated was a restricted or limited use, and one which would still reserve to the landowner any use to which such lands were put or adapted, then such restriction or limitation should have been made a part of the record and em-lation and conjecture as it must now be. bodied in the decree, and if appellant held itself to any specified or particular method of constructing the dikes, such method should also be embodied in the decree and such limitations given their due weight by the jury in determining the damages to be awarded. Oregon Ry., etc., Co. v. Owsley, 3 Wash. T. 38, 13 Pac. 186; Seattle & Montana R. Co. v. Roeder, 30 Wash. 244, 70 Pac, 498, 94 Am. St. Rep. 864, Spokane Valley Land & Water Co. v. Jones & Co., 53 Wash. 37, 101 Pac. 515; Lieberman v. Chicago Rapid Transit R. Co., 141 Ill. 140, 30 N. E. 544.

The judgments are reversed, and the cause remanded for a new trial.

RUDKIN, C. J., and CHADWICK and GOSE, JJ., concur.

(58 Wash. 355)

PITT et al. v. LITTLE.

(Supreme Court of Washington. May 16, 1910.)
1. EVIDENCE (§ 81*) - PRESUMPTIONS-FOR-
EIGN LAW.
The court in an action on a note executed
in a foreign country will assume, in the absence

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

of any pleading or evidence to the contrary, that | B. C. Febr. 1st, 1903. Due Oct. 1st/03. the law of the foreign country on the subject $206 39/100. Eight months after date I is the same as the law of the forum. [Ed. Note.-For other cases, promise to pay to the order of Messrs. Pitt & see Evidence, Cent. Dig. § 102; Dec. Dig. § 81.*1 Peterson, Duncan's Station, two hundred and 2. BILLS AND NOTES (§ 94*)-CONSIDERATION. Six 39/100 dollars at interest 8 per cent. per A note executed by the president of a corannum. Payable at the Canadian Bank of poration in consideration of a debt due from it Commerce, Victoria, B. C. Value received. and an extension of time for the payment thereA. C. Little. No. Given on act. of Inof is supported by a sufficient consideration. [Ed. Note.-For other cases, see Bills and ternational M. & D. Co." Although it appears Notes, Cent. Dig. §§ 166-212; Dec. Dig. upon the face of the note that it was executed 94.*] in British Columbia, no contention or claim predicated upon British Columbia laws has been made. We will therefore consider the laws of this state only; it being presumed, in the absence of any pleading or evidence to the contrary, that foreign laws are the same. Gunderson v. Gunderson, 25 Wash. 459, 65 Pac. 791; Daniel v. Gold Hill Mining Co., 28 Wash. 411, 68 Pac. 884.

3. EVIDENCE (8 441*)-EXTRINSIC EVIDENCE -COLLATERAL AGREEMENT.

In the absence of fraud or mistake, one

signing a note as principal may not predicate a defense on any collateral agreement exempting him from liability, especially where he fails to show that the note was without consideration. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2043, 2015; Dec. Dig. § 441.*] 4. ALTERATION OF INSTRUMENTS (§ 2*)—MA

TERIALITY.

Alterations of a note which make no change in its date, the sum payable either as principal or interest, the time of payment, the number or relation of the parties, or the medium in which payment is to be made, and which do not add the place of payment, where none was specified, or which do not affect the note in any respect. are immaterial, and do not avoid the note within Rem. & Bal. Code. §§ 3514, 3515, defining material alterations and the effect thereof. [Ed. Note. For other cases, see Alteration of Instruments, Cent. Dig. §§ 1-4; Dec. Dig. 8 2.1 5. BILLS AND NOTES (§ 52*)-RELEASE-"RE

NUNCIATION."

Rem. & Bal. Code, § 3512, providing that the holder of a negotiable instrument may renounce his rights against any party thereto, but that a renunciation must be in writing, unless the instrument is delivered up to the person primarily liable, refers to a release, for the word "renunciation" is used in the sense of release, and, in the absence of any written release or surrender of the note to the maker, the maker is not relieved from liability.

[Ed. Note.-For other cases, see Bills and Notes, Dec. Dig. § 52.*

For other definitions, see Words and Phrases, vol. 7, p. 6096.]

Department 2. Appeal from Superior Court, Pacific County; A. E. Rice, Judge. Action by Thomas Pitt and another, copartners as Pitt & Peterson, against A. C. Little. From a judgment for defendant, plaintiffs appeal. Reversed and remanded. H. W. B. Hewen, for appellants. Welsh, Welsh & O'Phelan, for respondent.

CROW, J. This action was commenced by Thomas Pitt and A. H. Peterson, copartners as Pitt & Peterson, against A. C. Little, to recover an indebtedness claimed to be due on a promissory note executed and delivered by the defendant. The jury returned a verdict in favor of the defendant, and the plaintiffs have appealed from the final judgment entered thereon.

The appellants' controlling contention is that the trial court erred in refusing to direct a verdict and judgment in their favor. The original note read as follows: "Victoria,

The complaint is in usual form. The respondent, answering, admitted the execution and delivery of the note, but denied that he had promised to pay the appellants $206.39, or any other sum. For his first affirmative defense he, in substance, alleged that some time prior to February 1, 1903, the International Mining & Development Company, a corporation organized and existing under the laws of the state of Washington, was indebted to the appellants in the sum of $206.39; that on said date respondent at their request signed and delivered the note; that he himself was not indebted to them in any sum; that the note was without consideration; that he did not receive anything of value therefor; and that prior and subsequent to its execution the appellants agreed with him that they would not attempt to collect the note from him, but would look solely to the International Mining & Development Company for payment. For a further affirmative defense the respondent alleged: "That after the execution of said note, and some time during the year 1903, the exact date being to defendant unknown, in the city of Victoria, British Columbia, the plaintiffs and each of them, for a valuable considera. tion, released defendant from all liability, on said promissory note, and informed the defendant that they would look to the International Mining & Development Company solely and exclusively for the payment of said note, which said release was oral and was made in consideration of the said defendant promising and agreeing with the plaintiffs to use his influence with and endeavor to persuade the International Mining & Development Company and one T. J. Reinhart and other persons, whose names are at this time unknown to defendant, and who were indebted to plaintiffs, to pay to plaintiffs their said indebtedness; and defendant alleges that thereafter and in compliance with said agreement he did use his influence with and endeavor to persuade the said International Mining & Development Company and said T. J. Reinhart and said

other persons to pay plaintiffs the amount of his rights against any party to the instrutheir said indebtedness to plaintiffs."

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes