[No. 15958. Department One. August 11, 1920.]

THE STATE OF WASHINGTON, on the Relation of Miller Logging Company, Plaintiff, v. THE SUPERIOR COURT FOR SNOHOMISH COUNTY, Respondent.1

Certiorari to review an order of the superior court for Snohomish county, Alston, J., entered June 18, 1920, denying an order of public use and necessity in condemnation proceedings. Affirmed.

M. J. McGuinness, Kerr & McCord, and W. P. Bell, for relator.
L. A. Merrick, for respondent.

PER CURIAM.-The relator, Miller Logging Company, seeks by certiorari proceedings in this court a review and reversal of an order of the superior court for Snohomish county, denying an order of necessity prayed for by it in a condemnation proceeding commenced and prosecuted in the superior court for Snohomish county, in which condemnation proceeding a right of way was sought to be acquired by it for a logging road as a private way of necessity, under the provisions of Ch. 133, Laws of 1913. A review of the evidence introduced upon the trial of the issue of necessity in the superior court, and a comparison thereof with the evidence introduced upon the trial of the issue of necessity, which was under consideration by us in State ex rel. Stephens v. Superior Court, 111 Wash. 205, 190 Pac. 234, convinces us that the decision in that case is controlling in this case. The evidence in this case is more voluminous and it may be said that it shows the facts touching the question of necessity in greater detail than the evidence in that case; but the situation is not shown to be substantially different, and we are quite convinced that it calls for the same conclusion. That is, that there is no necessity in law for the right of way here sought, in view of the fact that relator has a fairly practical means of access to market for its logs and timber over the highway furnished by the waters of the Snohomish river.

The order of the superior court is affirmed.

'Reported in 191 Pac. 830.

INDEX

Abatement:

Of nuisance, see NUISANCE.

Abatement and Revival:

Judgment as bar in another action, see JUDGMENT, 2.

Abutting Owners:

Assessments for expenses of public improvements, see MUNICIPAL CORPORATIONS, 5-8.

Accident:

Injuries to traveler on highway, see HIGHWAYS.

Injuries to servant or third person, see MASTER AND SERVANT.

To person on city street, see MUNICIPAL CORPORATIONS, 10-13, 15-17. To minor in use of elevator in school building, see SCHOOLS AND SCHOOL DISTRICTS.

To person on or near street car track, see STREET RAILROADS.

Accord and Satisfaction:

Substitution of existing obligation, see NOVATION.
Relinquishment of rights and claims, see RELEASE.

Account:

Books of account as evidence, see EVIDENCE, 7.

Account, Action On:

1.

ACCOUNT, ACTION ON (3)-NOVATION (7)-EVIDENCE-ADMISSIBILITY. In an action on an account in which defendants claimed a novation agreement whereby purchasers of their sawmill assumed the account and they were thereby released, evidence as to delivery of the merchandise comprising the account and whether items of credit thereon were for lumber delivered by the purchaser of the mill was admissible on the question of whether there had been a novation. Seal v. Long..... 370

Acknowledgment:

Of chattel mortgages, see CHATTEL MORTGAGES, 3.

Acquiescence:

In location of boundary lines, see BOUNDAries, 1.

Action:

See BILLS AND NOTES.

Action on open account, see ACCOUNT, ACTION ON.

Suits in admiralty, see ADMIRALTY.

To escheat lands held by alien, see ALIENS.

Stay of proceedings, see APPEAL AND ERROR, 10.

For wrongful discharge from employment, see ATTORNEY AND CLIENT.
Establishment and enforcement of stockholders' liability, see BANKS
AND BANKING.

Establishment of boundaries, see BOUNDARIES.

By shipper to recover overcharges, see CARRIERS, 1, 2.

For conversion of goods, see CARRIERS, 5-8.

Commitment for contempt as civil or criminal proceeding, see
CONTEMPT.

Taking of or injury to property in exercise of power of eminent
domain, see EMINENT DOMAIN.

Injuries on highway, see HIGHWAYS.

On indemnity bond, see INSURANCE.

Bar by former adjudication, see JUDGMENT, 2.

Actions in which jury trial may be had, see JURY, 1.

For damages for disturbance of possession, see LANDLORD AND TENANT,
1.

Unlawful detainer of leased premises, see LANDLORD AND TENANT, 2-4.
By servant for personal injuries, see MASTER AND SERVANT.
Foreclosure of mortgage, see MORTGAGES, 1, 7, 8.

For injuries from automobiles on streets, see MUNICIPAL CORPORA-
TIONS, 10-13.

To abate nuisance, see NUISANCE.

By or against firms, see PARTNERSHIP.

Foreclosure of pledge, see PLEDGES.

Injuries from fire caused by operation of logging railroads, see
RAILROADS.

Breach of contract in general, see SALES.

Price of goods sold, see SALES, 5, 11.

Injury to seamen, see SEAMEN.

Against street railroads for personal injuries, see STREET RAILROADS.

Reduction of assessment, see TAXATION, 2, 7.

Setting aside tax sale or deed, see TAXATION, 3, 6.

Recovery of price paid for land, see VENDOR AND PURCHASER, 2.

Obstruction or detention of water course, see WATERS AND WATER
COURSES, 1, 2.

Establishment or setting aside will, see WILLS, 1-3.

Construction of will, see WILLS, 4.

Adequate Remedy at Law:

As bar to writ of prohibition, see PROHIBITION.

Adjoining Landowners:

Adverse possession along boundary, see ADVERSE POSSESSION.
Location of boundary line, see BOUNDARIES.

Adjudication:

Operation and effect of former adjudication, see JUDGMEnt, 2.

Administration:

Of estate of decedent, see EXECUTORS AND ADMINISTRATORS.
Necessity for in computing inheritance tax, see TAXATION, 8

Admiralty:

1.

Injury to seaman, see SEAMEN.

ADMIRALTY (3, 4)—MARITIME TORTS-INJURY TO SEAMAN-JURIS-
DICTION OF COURTS-COMMON LAW REMEDY. A member of the crew of
a motor boat injured by an explosion of gasoline negligently fur-
nished in a kerosene can as part of the equipment of the boat, when
attempting to use the contents of the can in the customary manner
in starting a fire in the cook stove, may sue in the state courts for
damages sustained from such injuries, and is not limited under the
maritime law to a recovery of necessary expenses in his maintenance
and cure, though his employment and service was maritime in its
nature; since the recovery will be sustained on the theory that the
injuries were received in consequence of the unseaworthiness of
the ship. Sandanger v. Carlisle Packing Co.....
Adoption:

1.

480

ADOPTION-INFANTS (3)-CUSTODY OF DELINQUENTS-JURISDICTION
OF COURTS-STATUTES-CONSTRUCTION. The superior court has juris-
diction to hear a petition for the adoption of a child after its per-
manent custody was awarded to a society by order of the juvenile
court, with power to consent to adoption of the child, as provided
by Rem. Code, §§ 1987-1, 1987-9, 1987-10 and 1700, notwithstanding
the juvenile court act provides for the continuing jurisdiction of
the court, since the juvenile court intended and had power to com-
pletely release itself of jurisdiction over the child. McClain v.
Superior Court, Chelan County.....

Adverse Possession:

1.

260

Lien for improvements on property adversely held, see EJECTMENT.
ADVERSE POSSESSION (9)-HOSTILE ENTRY-ACTS OF OWNERSHIP—
EVIDENCE-SUFFICIENCY. Title by adverse possession of a disputed
strip along a boundary line is not shown by evidence that parts

23-112 WASH.

Adverse Possession-Continued.

have been used for a garden and for piling wood and that grass had
been cut upon it, where it was not fenced. Smith v. Chambers.. 600

Affidavits:

Accompanying chattel mortgage, see CHATTEL MORTGAGES, 3.

Aggravation:

Of damages, see DAMAGES, 1.

Agreement:

See CONTRACTS.

Agriculture:

Creation of pest districts as exercise of police power, see CONSTITU-
TIONAL LAW.

Irrigation, see WATERS AND WATER COURSES, 4-8.

-

ASSESSMENTS
Laws of 1919,

1. AGRICULTURE DESTRUCTION OF ANIMAL PESTS
CLASSIFICATION OF LAND-STATUTES-CONSTRUCTION.
p. 425, § 7, providing for the levying of an assessment against lands
benefited by the creation of a pest district and that the board of
county commissioners "may classify the lands into tillable, grazing,
and waste lands and fix the assessment for each class in such
amount as shall seem just," etc., and that the finding by the board
of special benefits shall be conclusive, will be construed as requir-
ing classification of the lands as a prerequisite to the adoption of
that method of raising the required revenue, instead of the levy-
ing of an annual tax as provided in the first paragraph of the
section; the word "may," as used in the section, having a manda-
tory meaning and equivalent to the word "shall." State ex rel.
Stanger v. Bartlett....
299

2. SAME. The fact that classification of the land would, in cer-
tain instances, be a physical impossibility is a question of no con-
cern to the court, since it cannot be presumed that the legisla-
ture in providing therefor did a useless thing. State ex rel. Stanger
v. Bartlett..
299

Aliens:

1.

ALIENS (2)-TITLE TO REAL ESTATE CITIZENSHIP-DECLARATION
OF INTENTION-GOOD FAITH-EVIDENCE-SUFFICIENCY. An alien's dec-
laration of intention to become a citizen was not filed in good faith,
as required by Const., art. 2, § 33, so as to prevent the escheat of
lands purchased by the alien, where the evidence shows that he
claimed an alien's right to military exemption, and later, on advice
of his counsel, after the state had begun an action to escheat the