June, 1891.] Dissenting Opinion — STILES, J. In England the rule has been the same, the leading case being Wood v. Veal, 5 Barn. & Ald. 454, where it was held that a tenant for ninety-nine years could make no dedication to the public, nor could any one else excepting the owner in fee. The latest case upon this subject, and one which is almost exactly the same as the case at bar, is that of Ruge v. Oyster, etc., Co., 25 Fla. 656 (6 South. Rep. 489). It seems that the original plat of the city of Apalachicola, located on the bay of that name, showed an open space, which was denominated on the plat as "Florida Promenade," and it was contended by the owner of land in the neighborhood that the dedication of the promenade carried with it the right to the public to have the waters of the bay in front kept clear of all obstructions. The court said: "The dedication of the promenade by the Apalachicola Land Company was made more than fifty years ago. What right had the company to make a dedication extending into the bay? Even if the promenade reached the bay, the company had no right in the submerged lands thereof, and could not dedicate these. Admitting that accretions to the soil of the promenade would become a part of it, that was a contingency which did not authorize the dedication of lands under the water in front of the promenade." Denny's plat was good to the water's edge. Beyond that it was void. Even Denny himself was not estopped to say as much. In such cases there is no question of estoppel. The real question is, do the facts show a dedication, either statutory or common law? Hayes v. Livingston, 34 Mich. 384 (22 Am. Rep. 533). Having had absolutely no title, or shadow or claim of title, the maker of the plat was free to deny it at any time, and so could any of his grantees of the upland, although their deeds purported to convey something which had an existence. Perhaps, on the whole case, the judgment of the court is right, however, as there was evidence tending to show laches on the part of Kenyon in Opinion of the Court- HOYT, J. [2 Wash. prosecuting his suit for injunction until the structures he complained of had been erected and used for a considerable period, and on this ground I can concur. [No. 539. Decided June 2, 1891.] J. GARDNER KENYON V. WATSON C. SQUIRE. Error to District Court, King County. J. Gardner Kenyon, pro se, D. O. Finch, and E. C. Hughes, for plaintiff in error. J. C. Haines, and Thomas Burke (Andrew Woods, of counsel), for defendant in error. HOYT, J.-Although the facts of this case are somewhat different from those of the case of Kenyon v. Knipe, ante, p. 394 (just decided), yet under the law as therein announced the same conclusions must be reached, and the judgment of the court below affirmed, and it will be so ordered. SCOTT and DUNBAR, JJ., concur. ANDERS, C. J., concurs in the result. June, 1891.] Opinion of the Court- HOYT, J. [No. 540. Decided June 2, 1891.] J. GARDNER KENYON V. WATSON C. SQUIRE AND J. R. WILLIAMSON. Error to District Court, King County. J. Gardner Kenyon, pro se, D. O. Finch, and E. C. Hughes, for plaintiff in error. J. C. Haines, and Thomas Burke (Andrew Woods, of counsel), for defendants in error. HOYT. J.-This case is governed by what we have said in the case last decided, and for the reasons therein stated the judgment must be affirmed. SCOTT and DUNBAR, JJ., concur. ANDERS, C. J., concurs in the result. [No. 62. Decided June 2, 1891.] GEORGE F. DEARBORN V. PETER MORAN AND ROBERT MORAN, Copartners. Appeal from Superior Court, King County. Gale & Fay, for appellant. J. C. Haines, for appellees. HOYT, J.-The court below, in deciding this case, gave the same effect to a town plat, part of which covered upland and part tide land, that we have given in the case of Kenyon v. Knipe, ante, p. 394 (just decided), and it fol Dissenting Opinion - STILES, J. [2 Wash. lows that its decision must be affirmed, and it will be so ordered. DUNBAR and SCOTT, JJ., concur. ANDERS, C. J., concurs in the result. STILES, J. (dissenting). This case was commenced in September, 1889, before the constitution went into effect, and by his complaint the appellant showed that he was the owner in fee and in possession of certain property in Plummer's addition to the city of Seattle, and that his land extended to and upon the waters of Elliott Bay, a navigable arm of the sea. He further showed that defendants were driving piles and erecting other obstructions between him and the deep water. Other allegations made a good complaint, conceding that the defendants were mere trespassers without rights in themselves. A demurrer to the complaint was sustained, and judgment went against the appellant, from which judgment this appeal was taken. I am unable to see why, under the decision in the case of Eisenbach v. Hatfield, ante, p. 236, and that of Kenyon v. Knipe, ante, p. 394, the demurrer should not have been overruled, unless, as seems to be hinted at in the briefs on both sides, the court below looked beyond the record in the case, and considered that, inasmuch as the plaintiff's property was shown to be certain lots and blocks in the city at Seattle, there must be other lots, blocks and streets beyond him, covering part of the tide lands, and which were also embraced in Plummer's addition. This feature was not in the case, and was not disclosed by plaintiff's complaint. The suit having been commenced before the constitution became operative, and before any subsequent laws on the subject were passed, I think appellant was entitled to have some relief under the pleadings, even under the holdings of this court in the cases above mentioned. Van Dolsen v. Mayor, etc., 17 Fed. Rep. 817. June, 1891.] Opinion of the Court- HOYT, J. [No. 190. Decided June 2, 1891.] J. B. KILROY v. D. A. MITCHELL. EQUITY - FINDINGS OF LAW AND FACT-MECHANICS' LIENS. Although findings of fact and law are proper in a suit in equity, they are not essential to the validity of a judgment rendered therein. A suit to foreclose a mechanic's lien cannot be transformed into an action at law by the defendant setting up a legal defense by way of counter-claim. Appeal from Superior Court, Pierce County. Suit by D. A. Mitchell against J. B. Kilroy to foreclose a mechanic's lien, to which the defendant interposed a counter-claim for damages. Judgment for plaintiff, and defendant appeals. Judson, Sharpstein & Sullivan, for appellant. G. W. Van Fossen, and Parker & Williamson, for appellee. The opinion of the court was delivered by HOYT, J.-The sole ground upon which it is sought to reverse the judgment entered in this cause in the court below is, that there were no findings of fact and law to support the same. That such findings are necessary in actions at law, when tried by the court without a jury, is clear from our statute, and has become the established law of this state. See Bard v. Kleeb, 1 Wash. 370 (25 Pac. Rep. 467), decided at the last session of this court. We think, however, that such findings, although orderly and proper in cases in equity, are not essential to the validity of the judgment. Judgments of law are founded upon general or special verdicts of juries, or findings of the court which take the place thereof. Without such verdicts or findings 2 407 3 46 2 407 8 590 26* 865 36* 491 2 407 25 620 2 407 40 3 |