May, 1891.] Dissenting Opinion - STILES, J. that she had been better informed since; and, therefore, her testimony as to the person whose act indirectly caused the accident was entirely worthless. In such case, under the charge of the court, it was for the plaintiff to make out with reasonable certainty, by a preponderance of the evidence, that it was an agent of the company whose negligent act caused her injury. This she failed to do, and I think the court should have set aside the verdict upon that ground. This court, in its opinion, says that the jury might have believed the testimony of the plaintiff wherein she stated it was a brakeman who raised the berth. If she had stated that, perhaps the jury might have been warranted in doing so, but she did not so state. She simply stated she thought so, which, in the presence of her earlier -and, as she admitted, better-statement, carried no force with it. The jury had no right to disregard her admittedly better statement, and base their verdict upon the inferior one. The court charged the jury over and over again that if the berth, the falling of which caused the injury complained of, was loosened or negligently pushed up by some person not an employé of the defendant, and over whom the defendant had no authority or control, then, in that case, the plaintiff had failed to establish her allegation; and it also charged that a news agent was not an employé of the railroad company, or a passenger thereof, and that if it appeared from the evidence that the berth was pushed up by a news agent at his own motion, or at the request of some person not in the employ of the defendant, then their verdict should be for defendant. When jury thus disregards the law as given to it by the court, the latter should instantly set its verdict aside. ANDERS, C. J., concurs. Argument of Counsel. [2 Wash. [No. 466. Decided June 2, 1891.] J. GARDNER KENYON V. ROBERT KNIPE, RICHARD ESTOPPEL-RECORDED PLAT-TIDE LAND LOTS. Where one purchases lots according to a recorded map or plat thereof, which are partly upland and partly tide land, with an alley and other lots platted over tide water in front of them, the purchaser is estopped from claiming any rights beyond the platted boundaries of his lots, as against the rights of the public in said alley, and of those in possession of the lots beyond such alley. (STILES, J., dissents.) Appeal from District Court, King County. Injunction by J. Gardner Kenyon against Robert Knipe, Richard Holyoke, Charles Craig, William Battia, Charles Brash, and Frank McCombs. Judgment for defendants, and plaintiff appeals. J. G. Kenyon, pro se, J. B. Howe, D. O. Finch, and E. C. Hughes, for appellant. The title of A. A. Denny extended only to high water mark of the waters of Elliott Bay, and his attempt to plat lots, blocks, streets and alleys below that line was a nullity, and no one could acquire any right by such void act. Lake Superior Land Co. v. Emerson, 38 Minn. 406 (8 Am. St. Rep. 679; 38 N. W. Rep. 200); Pollard v. Hagan, 3 How. 212222; Transportation Co. v. Brunswick, 31 Minn. 297 (47 Am. Rep. 789; 17 N. W. Rep. 626); Shively v. Parker, 9 Or. 505; Cleveland v. Choate, 77 Cal. 73 (18 Pac. Rep. 875). Appellant is not estopped by said attempted platting of the sea by Denny from claiming, as owner of bank lots, all the riparian rights incident to such bank lots. Hanford v. St. Paul, etc., Co., 43 Minn. 104 (42 N. W. Rep. 596); Lyon v. Fishmongers' Co., 1 App. Cases, 662; Welles v. Bailey, 55 Conn. 292 (3 Am. St. Rep. 48; 10 Atl. Rep. 565). June, 1891.] Opinion of the Court - HOYT, J. Thomas Burke, and C. H. Hanford (Andrew Woods, of counsel), for appellees. The effect of surveying and platting of land by the owner into lots, defining streets, alleys, etc., and the sale of lots under such plot, is equivalent to an immediate and irrevocable dedication to public use of all streets and alleys, binding upon vendor and vendee. 2 Dill. Mun. Corp. (2d) ed.), § 640, and cases cited; Peck v. Providence Steam Engine Co., 8 R. I. 353; People v. Lambier, 5 Denio, 19 (47) Am. Dec. 273). The plat must be considered a part of the deed. 3 Washb. Real Prop. (4th ed.), pp. 428, 429, §§ 54, 55; Gould on Waters, p. 343. The rule of law is, that when lands are purchased and conveyed in accordance with a plat, the purchaser will be restricted to the boundaries as shown by the plat. Trustees v. Schroll, 120 Ill. 509 (60 Am. Rep. 275; 12 N. E. Rep. 246); McCormick v. Huse, 78 Ill. 363; Miller v. Mendenhall, 43 Minn. 95 (19 Am. St. Rep. 219; 44 N. W. Rep. 1141). The opinion of the court was delivered by HOYT, J.-The discussion in this case has extended over a broad range. Nearly every question connected with the subject of tide or shore lands, and the rights of riparian or littoral proprietors thereto, has been ably briefed and argued by counsel for the respective parties. Also the questions growing out of the making and recording of town plats, and the effect of the same, have been likewise presented. The conclusions to which we have come as to this second matter will make it unnecessary for us to decide the questions presented by the former, and, as they have been lately considered by this court in cases where a decision thereof was necessary, we shall here say nothing in regard thereto. The facts, so far as they are necessary to the decision of this case, are substantially as follows: Arthur A. Denny Opinion of the Court - HOYT, J. [2 Wash. made and recorded his plat of an addition to the city of Seattle, upon which certain lots, streets and alleys appeared and were sufficiently described to show the intention of the maker of the plat in regard thereto. It nowhere appeared upon such plat where the line of ordinary high tide was. On the contrary, so far as could be gathered therefrom, all the territory covered by said plat was upland. As a matter of fact, however, the line of ordinary high tide so crossed said plat that a portion of lots 6 and 7, hereinafter mentioned, were above the line of ordinary high tide, and the remainder of such lots, and all of lots 5 and 8, together with the alley dividing the same, were below such line. After the making and recording of said plat the said Denny sold and conveyed to plaintiff herein lots 6 and 7 in block B of said plat, after which said Denny sold and conveyed lots 5 and 8 in said block, and said defendants, by mesne conveyances, became possessed of the title thereby conveyed. Under said last named conveyance from Denny, possession was taken and improvements made on said lots 5 and 8, and the alley dividing those lots from the lots of plaintiff was planked over and used as a street several years before the commencement of this action. Under these circumstances we do not think it lies in the mouth of the plaintiff to object to such improvements as being an infringement upon his rights as a littoral proprietor. The effect of the plat made by Mr. Denny was to separate the tract thereby covered into distinct lots having definite, ascertained boundaries, and into streets and alleys as marked upon said plat, and to vest in the public such streets and alleys for the purposes therein designated. That such would be the effect as to such streets and alleys if the territory covered was upland, and owned by said Denny, is conceded, but it is contended that, as he had no title to the land below the line of ordinary high tide, his plat, so far as it purported to cover such lands, was absolutely void for June, 1891.] Opinion of the Court- HOYT, J. any and every purpose. With this contention we cannot agree so far as Mr. Denny himself is concerned. It is perhaps true that as to anybody having rights adverse to him such would be the effect, but it does not lie in his mouth to say that that which he has made of record is a nullity. He is estopped by the making of such plat from alleging its invalidity, and so far as he is concerned would not be heard to complain of the use by the public of the territory covered by streets and alleys, especially after the same had been taken possession of and improvements thereon made. This being the condition of Mr. Denny, and his relation to the title of the lots bounded and described in said plat, we think that one purchasing lots from him, by reference to said plat, could acquire no better title than he had. Of course, if one could acquire title independent of, or adverse to, that represented by Mr. Denny at the time of the making of the plat, this reasoning would not obtain as to him; but such is not the condition of plaintiff. Whatever title he has he obtained from Mr. Denny, and we think it elementary that, under the circumstances of this case, he could get no better title than that of his grantor. A deed conveying property by reference to a plat or map thereof, adopts such plat or map as a part of such deed, and one purchasing thereunder becomes bound by the boundaries of the lot purchased as they appear on said plat or map. Applying this rule to the case at bar, it will be seen that the plaintiff herein did not purchase lots bounded by tide water, but those bounded by a definite and defined line one. hundred and twenty feet from the front of said lots, so that the lots he purchased were bounded and concluded on the one side by Front street, and on the other side by the alley next westerly thereof, and we think he is estopped by such fact from claiming any rights beyond such boundaries as against the rights of the public in said alley, and of those in possession of the lots beyond such alley. Unaided by |