tled that the language used must be given its ordinary meaning, and "the plaintiff cannot, by innuendoes, extend the meaning beyond what the words justify in connection with the cxtrinsic facts; and when the innuendo is not justified by the antecedent facts referred to, so that without it the words are not actionable, a demurrer to the complaint will lie." 1 Boone, Code Pl. § 163. "The language is to be understood in the ordinary and most natural sense; and, ** when the writing complained of is plain and unambiguous, the question in a civil action, whether it is a libel or not, is a question of law." Lacombe, Circuit Judge, in Morgan v. Halberstadt, 9 C. C. A. 147, 60 Fed. 592. Interpreting the article in question in the light of the rule thus laid down, we think that appellants' explanation of the meaning and effect of the article must be rejected. The article itself furnishes its own explanation of the meaning to be given to the word "hogs." That explanation and meaning is that they do "not believe in that kind of business [that is, "in buying at home, and building up our own trade and town as much as possible"], and will not trade at home, but send to Seattle for supplies." This is certainly no reflection upon the character of their hotel, or the kind of accommodation or refreshment which it affords. The article does not charge or impute anything immoral or criminal, nor is it calculated to expose the appellants to public hatred, contempt, or ridicule, or to deprive them of the benefits of public confidence. Unquestionably, appellants had the legal right to trade in Seattle, or send there for supplies, if they deemed it to their advantage; and the publication is nothing more than "a hostile comment upon the manner in which the plaintiffs used, within the pale of the law," their right to trade where and with whom they pleased. Donaghue v. Gaffy, supra; Homer v. Engelhardt, 117 Mass. 540. To accuse one of being deficient in some quality which the law does not require him as a good citizen to possess is not libelous per se. The public may disapprove of appellants' conduct in thus exercising the right to trade outside of the town where they reside; but the publication does not expose them to public hatred or contempt, in the sense or to the degree required by the law of libel. It follows that the demurrers were properly sustained, and the judgment will be affirmed.

HOYT, C. J., and ANDERS and SCOTT, JJ., concur.

(15 Wash. 170)

BARRINGTON et al. v. COMMERCIAL DOCK CO.

(Supreme Court of Washington. July 18, 1896.) WHARVES-PRIVATE OWNERSHIP-RIGHT OF PUBLIC TO USE.

1.1 Hill's Code, § 2136, authorizing individuals to construct wharves, and providing

they may charge for wharfage such rates as may be reasonable, does not prevent a wharf owned by an individual from partaking, from its use by the public in general on payment of a fixed rate for wharfage, of the nature of a public wharf, so as to entitle all to its use on payment of reasonable wharfage rates.

2. Where a wharf, the subject of private ownership, is thrown open to use by the public in general on payment of fixed wharfage rates, it becomes a quasi public wharf, to the use of which all are entitled on payment of reasonable wharfage rates.

Appeal from superior court, Pierce county; W. H. Pritchard, Judge.

Action by E. M. Barrington and another against the Commercial Dock Company, a corporation. There was a decree for plaintiffs, and defendant appeals. Affirmed.

Murry & Scott, for appellant. Jas. F. McElroy and O'Brien & Robertson, for respondents.

GORDON, J. Appellant is the owner and in possession of a wharf and warehouse situated upon a waterway known as the “City Waterway," in the city of Tacoma, and located upon a portion of the tide lands which is not, by the constitution and laws of the state, reserved from sale. Said wharf and warehouse are not located at the terminus of any street in the city or any public highway in the county. Appellant holds possession of that portion of tide lands upon which its wharf and warehouse are situated, under and by virtue of a lease for the term of 20 years from the Tacoma Land Company. Said land company has the preference right to purchase the tide land on which the said wharf and warehouse are situated, and has made proper and timely application to the commissioner of public lands for that purpose. The respondents are owners of the steamer Cricket, a passenger steamer plying between the cities of Tacoma and Seattle. They instituted this action in the superior court for Pierce county for the purpose of compelling the appellant to permit them to use appellant's wharf as a landing place for the passengers and baggage carried on their steamer. The answer of the appellant denied that it was conducting a public wharf, and alleged that its wharf was a private one, and that respondents had no right to the use thereof as a landing place for passengers without appellant's permission, which permission it refused to give; alleging, further, that it had not sufficient room at its wharf to accommodate said steamer without discommoding its regular freight boats. Upon final hearing the lower court entered a decree perpetually prohibiting and restraining appellant from interfering with or preventing respondents' steamer from landing and discharging its passengers and baggage at and over appellant's wharf, upon the payment by respondents of a reasonable compensation for so doing. The defendant appeals.

In addition to what has been stated, the court found "that the said mentioned steamer

Cricket, at the date of the filing of this complaint, was landing at the docks of the defendant company, at the city of Tacoma, three times a day, and lying there during the night; that the dock of the said defendant is situated at, and approached by, a bridge constructed from Pacific avenue, in the city of Tacoma, to the rear of defendant's dock, which said bridge has been and is open and affords access to the public to the said dock, and that the said dock and the said bridge are not inclosed, and that said bridge is in general use by the public as a thoroughfare, and that no restrictions or restraints are made in its use as such thoroughfare; that the said Commercial Dock Company transacts a general wharfinger and warehouse business at said dock in the city of Tacoma, and is suitable for the landing of vessels of the steamer Cricket's character, and has ample and proper facilities for the accommodation of the said steamer Cricket at the times and under the circumstances that she now lands and seeks to land; that prior to the bringing of this action the defendant agreed with the plaintiffs to furnish a berth and dockage for the steamer Cricket for the landing of passengers at its dock at the city of Tacoma, Washington, for an indefinite time, for the sum of $35 per month." The court also found that on or about the 1st of October, 1895, appellant notified respondents that it had not sufficient room to accommodate respondents' steamer, and further that, if they continued to land said steamer at appellant's wharf after October 11th, "her lines would be thrown off or cut"; also found "that the said dock of the defendant corporation is located on the shore of Commencement Bay, in Pierce county, Washington, and the water at the outer edge of said dock is of a depth of eight feet at low tide, and the same is situated on a waterway approachable from the sea and the waters of Puget Sound; that vessels of a similar character and in competing business with the steamer Cricket are permitted to land at the dock of the said defendant corporation." Many of said findings were excepted to by appellant, but after examining the evidence we do not feel warranted in disturbing them. The main contention of appellant is that its wharf is a private wharf, and under the control of the owner, and that it has a right to determine for itself with whom it will do business; and counsel confidently cites section 2136, 1 Hill's Code, in support of this position. That section is as follows: "Any person owning land adjoining any navigable waters or watercourse, within or bordering upon this state, may erect upon his own land any wharf or wharves, and may extend them so far into said waters or watercourses as the convenience of shipping may require; and he may charge for wharfage such rates as shall be reasonable; provided, that he shall at all times leave sufficient room in the channel for the ordinary purposes of navigation."

The first part of this section confers a license upon the owner of lands adjoining navigable waters to extend any wharf erected upon his own land into said waters, but the latter part of the section, viz. that "he may charge for wharfage such rates as shall be reasonable," is a limitation merely. The section, as a whole, while it recognizes the right of private ownership in wharfs, cannot be construed to mean that such private property may not be devoted to such use as will, in contemplation of law, make it partake of the nature of a public wharf. Upon this question it was said by the supreme court of the United States in Dutton v. Strong, 1 Black, 32, that: "Piers or landing places, and even wharves, may be private, or they may be in their nature public, although the property may be in an individual owner; or, in other words, the owner may have the right to the exclusive enjoynient of the structure, and to exclude all other persons from its use, or he may be under obligation to concede to others the privilege of landing their goods, or of mooring their vessels there, upon the payment of a reasonable compensation as wharfage; and whether they are the one or the other may depend, in case of dispute, upon several considerations, involving the purpose for which they were built, the uses to which they have been applied, the place where located, and the nature and character of the structure." In Gould, Waters, § 119, the author lays down the proposition, and supports it by a great array of authorities, that, "when wharves belonging to individuals are legally thrown open to the use of the public, they become affected with a public interest, and the wharfage must be reasonable." The proof in this case shows that numerous steamers landed at appellant's wharf daily, discharging passengers and baggage, as well as freight, from different ports in the waters of Puget Sound and elsewhere; and it also shows that the appellant receives the sum of 25 cents per ton for every ton of freight going out or coming in over said wharf. We think that the language of the court in Munn v Illinois, 94 U. S. 113, is applicable here, viz. that appellant stands "in the very 'gateway of commerce,' and takes toll from all who pass." In re The Kate Tremaine, 5 Ben. 62, Fed. Cas. No. 7,622, it is said: “A wharf is a necessity of modern navigation, and of navigation alone. The sole object of its erection is to facilitate the transportation of passengers and freight upon navigable waters. Every vessel has a license to use, for her safety or convenience, any public wharf on navigable waters, upon paying reasonable wharfage." We think that, in determining the character of appellant's wharf, regard should be had to the use to which it has been devoted, rather than its private ownership, and that upon the facts found the position of the appellant cannot be maintained. As well might the proprietor of a stagecoach claim the right to discriminate

* **

*

upon the ground that the property employed in his business was private property. The doctrine, if maintained, would tend to promote and further monopolies, which it is not the policy of our law to favor. The decree will be affirmed.

HOYT, C. J., and ANDERS and SCOTT, JJ., concur.

(15 Wash. 138)

NORTH RIVER BOOM CO. v. SMITH et ux. (Supreme Court of Washington. July 9, 1896.)

EMINENT DOMAIN-TIDE LANDS-PARTIES-APPEAL -REVIEW-CONSTITUTIONAL QUESTION -SPECIAL LANDS-TRIAL.

1. In proceedings by a boom company to condemn for right of way the interest of an individual in tide-water lands, the legislature having authorized the company to enter on the lands, and given it an easement therein, the state is not a necessary party.

2. On appeal, the question as to the constitutionality of a statute authorizing the condemnation of land, due to a defect in its title, not having been raised in the court below nor in the briefs, will not be considered.

3. Const. art. 2, § 28, subd. 6, prohibiting the legislature from enacting private or special laws for granting corporate "powers or privileges," does not prohibit the legislature from authorizing a boom company to condemn property under the right of eminent domain.

4. The fact that the clerk, in sending the written instructions to the jury at their request, omitted therefrom an instruction which had become accidentally detached from the others, is not ground for reversal, without a showing that appellant was prejudiced thereby.

Appeal from superior court, Pacific county; Fred L. Rice, Judge Pro Tem.

Action by the North River Boom Company against Isaac Smith and his wife. From a judgment for plaintiff, defendants appeal. Affirmed.

DUNBAR, J. This is an appeal from a judgment rendered in an action brought to appropriate certain tide lands of the third class for boom purposes. A demurrer was interposed to the complaint, which was overruled. The defendant answered, and, upon trial, certain damages were awarded to the defendants, with which they were not satisfied, and from which judgment they have appealed to this court.

We think the petition stated facts sufficient to constitute a cause of action. The contention that the state should have been made a party to the action was fully disposed of by this court in Seattle & M. Ry. Co. v. State, 7 Wash. 150, 34 Pac. 551, where it was held that the state's interest in land was not subJect to condemnation. The state, through its authorized agent, the legislature, having authorized the boom company to enter upon the lands, and giving to the boom company an

easement therein, and having contracted in this instance with the appellants for the purchase of the land, there is no interest to be condemned except the interest of the appellants. This, it seems to us, disposes of the main contention in the case.

The main argument made by one of the attorneys for the appellants, to the effect that the act of March 17, 1890, conferring upon boom companies the right of eminent domain, is unconstitutional, on the ground of defect in the title of the act, was not raised in the court below, or upon the briefs here, and will therefore not be considered.

There was one constitutional question raised, however, and that was that said act was contrary to the provisions of the state constitution prohibiting the enactment of such laws granting corporate powers or privileges, viz. section 28 of article 2 of the constitution. There was no authority, however, cited to sustain this contention; nor do we think that any can be found. It is well settled that boom companies are quasi public corporations, and that the legislature has power to authorize them to condemn property under the right of eminent domain, and that the use of such and by such companies is a public use, inasmuch as it tends to promote the productive power of any considerable number of the inhabitants of the section of the state, and leads to the creation of new channels for the employment of private capital and labor. 7 Lawson, Rights, Rem. & Prac. § 3885, and cases cited. In fact, the overwhelming, and we think uniform, decision of the courts under constitutions similar to ours in this respect, sustains this law.

We think the court gave the proper instructions to the jury in the case, and that no error was committed in the trial thereof.

During the deliberations of the jury, they requested the clerk to send them the instructions of the court. The clerk attempted to comply with the request of the jury, but, through a mistake, omitted to send a certain instruction, which had inadvertently become separated from the rest. This instruction, it is claimed, was beneficial to the defendants; and, because of the failure of the jury to receive said instruction after they had retired, appellants moved the lower court to set aside the verdict of the jury, and assign as error the overruling of said motion by the court Conceding the irregularity claimed by the appellants, and conceding, without deciding, that the jury had a right to the instructions at all, in the absence of any showing, by affidavit or otherwise, that the defendants were prejudiced by the fact that this instruction was inadvertently omitted from the jury, we would not be justified in reversing the case. Believing that the record discloses no preju dicial error in any particular, the judgment will be affirmed.

HOYT, C. J., and GORDON, J., concur.

(15 Wash. 142)

MURDOCH v. LEONARD et al. (Supreme Court of Washington. July 10, 1896.) EQUITY-REFORMATION OF MORTGAGE-MISTAKEPLEADING-REFORMING CONTRACT OF MARRIED WOMAN--OWNERSHIP OF MORTGAGED PROPERTY -EVIDENCE-PARTIES.

1. A complaint in an action to reform a mortgage, reciting that, when executed, all the parties thereto intended that it should cover certain property, but "that, in drawing said mortgage, the descrintion recited therein was erroneously mentioned," and the property was described as another tract, sufficiently alleges a mutual mistake.

2. Under 1 Hill's Code, § 1410, providing that a contract made by a married woman may be enforced against her as if she were unmarried, equity will reform a mortgage by a married woman which, by mutual mistake, contains an erroneous description of the property.

3. In an action to reform and foreclose a mortgage, where plaintiff claims that, by mutual mistake, the mortgage misdescribed the property, evidence that defendants received the rents of the property as claimed by plaintiff, and had sought to effect a loan thereon, and in certain letters had suggested that they would convey such property to plaintiff in consideration of a release of the mortgage thereon, and the payment of a small sum of money, sufficiently shows that defendants owned such property.

4. In a suit to foreclose a mortgage, one to whom the mortgagors had conveyed the premises, but who has not recorded the deed or taken possession thereunder, is not a necessary party.

5. In a suit to reform and foreclose a mortgage, where plaintiff had, in consideration of a deed of the property actually described in the mortgage, which was a different tract from that claimed by plaintiff as covered by the mortgage, surrendered to defendants possession of the note and mortgage, and neither at the trial nor prior thereto had they offered to reconvey such premises, and there is some evidence that defendants owned lands corresponding with the description in the mortgage and other lands corresponding with plaintiff's claimed description, recovery will not be allowed unless plaintiff makes a reconveyance.

town of Winlock, as hereinbefore described"; also, that the appellants, at the time of the execution of the mortgage, did not own any real estate in Pagett's addition to the town of Winlock; and that, at the time of the execution and delivery of the mortgage, the appellants pointed out and designated to the mortgagees, as the property mortgaged and intended to be mortgaged, the property first above described. A demurrer was interposed to this complaint, and overruled by the court. Thereafter appellants answered, denying all of the allegations of the complaint, and alleging affirmatively that they were not, at the time of the execution of the mortgage in question, the owners of any right, title, or interest in or to the north half of lot 1 in block 2 of the original town of Winlock. Upon findings of fact and conclusions duly made and filed, a decree was entered in favor of the respondent, and the defendants have appealed.

1. The first error complained of is the ruling of the court upon the demurrer to the complaint. Appellants insist that the complaint is insufficient, in that it is not alleged that there was any fraud or misrepresentation upon the part of the defendants, and that there is no allegation in the complaint that there was any "mutual mistake." It is true that the authorities hold that "in this class of cases the facts must be distinctly and positively averred"; but we think that, while the complaint does not in express words allege "mutual mistake," it does distinctly set up facts from which that conclusion is inevitable, and it expressly alleges that the mortgage was given upon, and intended to be a lien upon, the north half of lot 1, block 2, of the original town of Winlock, etc. We think that the complaint lacks no allegation essential to confer jurisdiction in equity.

2. It is next insisted that equity is power

Action by Miller Murdoch against Martha E. Leonard and another. Judgment for plaintiff, and defendants appeal. Modified.

M. A. Langhorne, for appellants. E. B. Preble and G. T. Swasey, for respondent.

GORDON, J. Respondent instituted this action in the superior court for Lewis county to reform and foreclose a mortgage of real estate executed by the appellants (husband and wife) to respondent's assignors, securing an indebtedness aggregating $678 and interest. The complaint alleges that, at the time said mortgage was executed, both the defendants and the mortgagees intended that the same should include and describe the north half of lot 1, block 2, of the town of Winlock; "that, in drawing said mortgage, the description of the property recited therein and intended to be conveyed was erroneously mentioned as being in Pagett's addition to the town of Winlock, when in truth and in fact the prop-¦ erty intended to be conveyed by said mortgage was situate and being in the original

ried woman. While such is, undoubtedly, the rule in many jurisdictions, we do not think it prevails where, as in this state, the wife is under no legal disability to contract. Stevens v. Holman (Cal.) 44 Pac. 670; Hamar v. Medsker, 60 Ind. 413; Witherington v. Mason, 86 Ala. 345, 5 South. 679. We think that our statute conclusively establishes this point against appellants' contention. Section 1410, 1 Hill's Code, is as follows: "Contracts may be made by a wife, and liabilities incurred, and the same may be enforced by or against her to the same extent and in the same manner as if she were unmarried."

3. The trial court found that the defendants were the "owners and in possession of said north half of lot 1, block 2," of the original plat, etc., at the time of the execution of the mortgage. This finding was excepted to, and it is contended that the evidence fails to support it. We have examined the record carefully, and think that the proof in support of the finding is sufficient, at least for the purposes of this case, and as against these defendants. Upon the part of the plaintiff,

among other things, it was shown that the building (known as the "Post-Office Building") upon the property was insured by appellants in their own right, as owners, for the sum of $500; that they were in possession of the property, and exercised all the acts of ownership, and rented it, and received rent therefor. It also appears from certain letters written by appellant Charles E. Leonard (the husband), and introduced by plaintiff, that appellants were seeking to effect a loan upon the property at a lower rate of interest than that expressed in the notes secured by respondent's mortgage, and that it was their intention to pay and discharge respondent's mortgage from the proceeds of such loan. In another of said letters (written prior to the commencement of this action), appellant suggested that they would convey this property (viz. the property which respondent seeks to make chargeable with the lien of the mortgage) to the respondent, in consideration of a release of the mortgage and the payment of a small sum of money. This proof was prima facie sufficient to establish ownership. Abb. Tr. Ev. p. 692. On the part of the defendants, it was shown by the auditor of the county that a deed was of record, covering the land in question, executed to one Harrington, but no proof was made tracing the title through the grantor to the primary source. Nor was it shown that such grantor was in possession at the time of its execution, or that Harrington was ever at any time in possession.

4. It is further urged as ground for reversal that Harrington should have been made a party defendant. As already stated, the proof fails to show that Harrington or his grantor ever had possession of the premises, or that Harrington had a record title extending back to the primary source. Hence, in the light of the record, Harrington was not a necessary party, and is neither concluded nor affected by this proceeding. But, irrespective of this view of the question, there is still another reason for this conclusion. Appellants seek to place him in the position of a claimant under a title adverse to, and, if valid, paramount to, their own. Assuming him to be such, he was not a proper party. "The only proper parties to a foreclosure suit are the mortgagor, the mortgagee, and those who have acquired any interest from either of them subsequently to the mortgage." California Safe-Deposit & Trust Co. v. Cheney Electric Light, Telephone & Power Co., 12 Wash. 138, 40 Pac. 732.

The title to the premises can be more appropriately determined in another form of action.

5. The final contention is that there can be no recovery by plaintiff, because it appears that, prior to the commencement of the action, the plaintiff had, in consideration of a deed of conveyance to the property actually described in the mortgage, surrendered and delivered to the appellants possession of the

note and mortgage in question, and that neither at the trial nor prior thereto had the respondent offered to reconvey said premises to the appellants, or surrender conveyance thereof. The theory of respondent's counsel is that the consideration for which the note and mortgage were surrendered was an actual conveyance of title to the property which is sought to be subjected to the lien of the mortgage in this case, whereas the deed actually obtained, like the mortgage sought to be reformed, erroneously described the property as being in Pagett's addition. Appellants requested the lower court to find that they "were at the time of the execution of said mortgage, and ever since have been, the owners of the north half of lot 1, block 2, Pagett's First addition to the town of Winlock," which was refused by the court. While the evidence is not satisfactory in this connection, we think that, fairly considered, appellants were entitled to this finding, and we shall dispose of the case upon that assumption. It was the duty of the respondent to have tendered a deed of reconveyance of the identical property described in the deed to him, viz. lot 1, block 2, Pagett's addition, prior to the commencement of his action; or, if the deed from appellants to him had not been recorded, then he should have returned said deed, or offered to surrender it, to appellants.

Upon the whole record, we think that substantial justice will be subserved by remanding the cause, and permitting the respondent to reconvey to appellants the premises described in their deed to him of date May 16, 1895, or to surrender the deed of conveyance so received by him, if the same has not been recorded; and upon his complying herewith within the period of 30 days from the date of the receipt of the remittitur by the lower court, and the payment of the costs of both courts, the decree appealed from will be affirmed; otherwise, the same will be reversed, and the action dismissed.

HOYT, C. J., and ANDERS and DUNBAR, JJ., concur.

(15 Wash. 696) WARNER v. COWIE et al. (KEEFE et al., Garnishees).

(Supreme Court of Washington. July 9, 1896.)

CERTIORARI-WHEN LIES.

Certiorari will not lie to review a judgment which is below the jurisdictional amount fixed by Const. art. 4, § 4, for appeals, where the question does not involve the legality of a tax or statute. State v. Superior Court of Jefferson Co., 36 Pac. 27, 8 Wash. 271, followed. Application for writ of certiorari. Denied. John W. Whitham, for defendants.

PER CURIAM. This is an application for a writ of certiorari, where the original amount in controversy is less than $200. In the case of State v. Superior Court of Jef