Mar. 1891.] Opinion of the Court-DUNBAR, J. not furnish a superintendent, as his contract did not contemplate a superintendent; and in discussing the matter something was said with reference to compensation, and Mr. Proctor said that, generally, the services of such a man was worth $10 or $12 a day, but he thought in this case the better way was to prorate the expenses among the different buildings, and he intimated that he thought about two per cent. would be about the compensation on the sort of the building." Conceding that this testimony is literally true, it does not appear that Cadwell responded in any way, or that the "intimation" resulted in a contract, and in no way disputes the testimony that Cadwell and Proctor afterwards agreed on the terms which they both swear to. Tending to weaken plaintiff's claim is the testimony of his successor in the work, Mr. Paul, who swears that when Brackett quit work he told witness that Cadwell owed him $40 or $50, and said that he would not pay him, and that he was going to sue him if he did not pay it. Counsel for appellee in his brief says that the testimony of Mr. Paul is indefinite, but it seems to us about as definite as any testimony in the case. We do not see any force in the argument of appellee that the exhibits and testimony show that Cadwell treated and recognized Brackett as superintendent; for Cadwell does not deny that Brackett superintended his work, but claims that he did not employ him, and that he was to pay Proctor & Dennis for his services, not at the rate of two per cent. on the value of the buildings, but according to the contract testified to by him. The superintendent's duties would be the same under either theory of employment, and Cadwell would have a right to give him the same recognition and authority under one theory as he would under the other. It appears from the testimony that another arrangement was afterwards made between Brackett and Proctor & Dennis in regard to Brackett's compensation, but it does not satisfactorily appear that this new arrangement was ever Opinion of the Court-ANDERS, C. J. [2 Wash. brought to the knowledge of Cadwell, but, on the contrary, it does appear that when it came to his knowledge that Brackett was intending to hold him responsible for his services, he immediately discharged him. From the whole testimony, it seems to us that Brackett has already received more than he was entitled to under his contract, and that he ought not to recover anything against the defendant in this action. With this view of the testimony, it is not necessary to investigate the law questions involved. The judgment of the lower court is reversed, and the case remanded, with instructions to the court to enter judgment for the defendant for costs. ANDERS, C. J., and HOYT, STILES, and SCOTT, JJ., con cur. [No. 132. Decided March 13, 1891.] JAMES S. PIERCE et al. v. JOSEPH R. KENNEDY et al. LITTORAL PROPRIETOR-TIDE LANDS-EJECTMENT. The littoral proprietor of land bordering on tide waters cannot maintain an action in the nature of ejectment against persons who take possession of, erect buildings on and occupy the shore between high and low water mark, opposite his premises, when such part of the shore is within one mile of the corporate limits of a city, and the littoral proprietor has acquired no right to such tide land by lease from the state Appeal from Superior Court, Pierce County. Calkins & Shackleford, for appellants. Ballard & Norris, for appellees. The opinion of the court was delivered by ANDERS, C. J.-The facts in this case are substantially the same as those presented in the case of Eisenbach v. Mar. 1891.] Opinion of the Court-ANDERS, C. J. Hatfield, ante, p. 236, and by agreement of counsel the two cases were argued and submitted together; and, for the reasons given in the opinion filed in that case, the judgment of the court below should be reversed. But there is an additional reason why appellees cannot prevail in this action. They alleged in their complaint, substantially, that they were the owners of certain lots in the city of Tacoma, bordering upon the waters of Puget Sound; that appellants, at a certain time mentioned in the complaint, willfully, maliciously and unlawfully, and without their consent, took possession of the same, erected buildings thereon, and occupy the same; that they demanded possession of said premises from appellants, who refused, and still refuse to deliver the same to plaintiffs, to their damage in the sum of $1,000; and praying for possession of the said premises, and for $500 as attorney's fees, to be taxed as costs, and for further relief. Appellants, defendants below, filed an answer denying the allegations of the complaint, and setting up, as an affirmative defense to the action, that they were occupying the shore between high and low water mark opposite part of the premises described, and that the part of the said shore so occupied by them is within one mile of the corporate limits of the city of Tacoma, and that the title to said shore between high and low water mark is vested in the State of Washington, and by the constitution of said state is reserved from sale, and that the state has power and right to dispose of the possession of said land, and that the plaintiffs have acquired no right to the possession thereof, by lease or otherwise, from the state. Plaintiffs interposed a general demurrer to this answer, which was sustained by the court, and judgment rendered thereon for plaintiffs, from which judgment defendants appeal. We are of the opinion that, upon the pleadings in this case, judgment should have been rendered for defendants. The remedy, if any, of plaint On Petition for Rehearing. [2 Wash. iffs, was in equity, and not by an action in the nature of HOYT, DUNBAR, and SCOTT, JJ., concur. STILES, J.-I concur in the result in this case for the special reasons stated in the foregoing opinion. ON PETITION FOR REHEARING. ANDERS, C. J.-On the trial of this cause in this court, the argument of counsel was directed solely to the question of the littoral rights of owners of land bordering upon the shores of an arm of the sea in which the tide ebbs and flows, and our decision was based upon the supposition that the buildings and improvements of appellants complained of were below high water mark. We find no argument or authority presented in the petition for rehearing sufficient to induce us to change our opinion upon that question, and therefore decline to grant a rehearing. But, after a further examination of the pleadings, we are inclined to believe that the order directing a dismissal of the action should not have been made. Counsel for appellees state, in their petition, that appellees had no intention of bringing any suit or action except for the land above high tide and owned by them, and we think the complaint may fairly be construed to support the assertion. Certain issues of fact seem to be raised by the complaint and answer which appellees have a right to have tried in the court in which the action was brought. The order directing the court below to dismiss the action will, therefore, be vacated, and the cause remanded to the court below with directions to overrule the demurrer to the answer, and to proceed according to law. HOYT, STILES, SCOTT, and DUNBAR, JJ., concur. 1 1 Mar. 1891.] Statement of the Case. [No. 171. Decided March 13, 1891.] MICHAEL MURPHY V. HUGH ROSS. APPEAL-FAILURE TO PERFECT. Where an appeal is not perfected within the time prescribed by law and the rules of the supreme court, the appeal will be dismissed unless a reasonable excuse is shown for the failure. Appeal from Superior Court, Pierce County. Motion to dismiss the appeal. The appellant, in opposition to the motion, filed the affidavit of Fred T. Peet, the attorney of record in the cause below, as follows: "That on or about the 9th day of July, A. D. 1890, this affiant duly argued a motion for a new trial before Judge Allyn in open court on behalf of said Murphy, appellant; that at that time Judge Allyn notified this affiant that he, Judge Allyn, should be absent from the State of Washington for about sixty days from said 9th or 10th of July; that in accordance with such information this affiant entered into an oral stipulation with Joseph Sessions, attorney for said Ross, appellee herein, that he might prepare his transcript and settle all questions of fact upon reasonable notice after Judge Allyn's return to said Pierce. county; that at the time of Judge Allyn's return, this affiant having received no additional retainer from said Murphy, and knowing that said Murphy had engaged other attorneys in Tacoma in and about his business, and from the additional fact that this affiant had repeatedly notified said Murphy that something must be done in his case, said affiant believed that he was no longer employed by said Murphy in and about the said case; that on or about the 15th day of January, 1891, Joseph Sessions called at this affiant's office and notified this affiant that the six months for appeal having run out he should issue execution forthwith if this case was not settled; thereupon this affiant notified said Murphy of this fact, and then and there said Murphy informed this affiant that he had supposed that this affiant was attending to the case all along; |