case the supreme court holds, "It must be that there are boundaries to such body, and the lode exists." It therefore follows that if the apex of such a body of ore is on the claim of the party following and claiming the same, and if such vein, ledge, lode, zone, or belt extends downward vertically, so far departing from a perpendicular line as to pass the side lines of such claim, such departure is authorized by the act of congress, and the ore belongs to the party following it. "Or if there is a continuous cavity or opening between dissimilar rocks in which ore in some quantity and value is found, the lode exists." It is admitted by all the evidence that in this case there is a contact between the shale and lime,-rocks of a dissimilar character,-and that in the contact mineral of value is found. Therefore, according to the ruling of the supreme court, as above laid down, the lode must exist. There being no conflict in the evidence as to either of these propositions, I think the court should have instructed the jury to find for the defendants, or granted a motion for a new trial, and therefore I cannot concur in the conclusion reached by the majority of the court. 1. A complaint alleging the sale to defendants of plaintiffs' right, title, and interest in and to certain personal property, and seeking recovery of part of the purchase money, is not defective for failure to define plaintiffs' right of ownership in the property. 2. The allegation of the complaint that defendants took possession of the property under the contract by which plaintiffs sold and delivered to them their right and interest therein, is not open to the construction that defendants took tortious possession thereof. 3. Possession of personal property having been taken pursuant to a sale, it was not necessary that the agreement be in writing. 4. Defendants having taken possession of property according to an arrangement for its purchase made by one of them as the representative of all, would tend to show authority to bind them as a firm, or at least a ratification. 5. A verdict for a certain sum, and "interest" from a certain time, is for interest to be computed at the legal rate. 6. A judgment will not be reversed by reason of an allowance by the verdict of excessive interest, where, at the offer of the successful party, the excess was remitted. Appeal from circuit court, Columbia county; Thomas A. McBride, Judge. Action by L. D. Duzan and others against Lincoln Meserve and others. Judgment for plaintiffs. Defendants appeal. Affirmed. W. B. Dillard, for appellants. J. F. Caples, for respondents. LORD, C. J. This is an action to recover the sum of $500 from the defendants, alleged to be due to the plaintiffs on the sale of their right, title, and interest in and to certain mill machinery which was then in their possession under a contract of sale with J. M. Arthur & Co., of Portland, Or. The cause was tried upon the issues joined by the pleadings, and resulted in a verdict and judgment for the plaintiffs. The first ground of error relied upon is the insufficiency of the facts stated to constitute a cause of action. The complaint alleges, in substance, that on the 9th day of November, 1890, the plaintiffs, as partners, sold and delivered to the defendants, as partners, their right, title, and interest in and to certain personal property. (describing it,) and also the right to use certain buildings, etc., for the agreed consideration of $2,000. That, in pursuance of such contract and sale, the defendants took possession of said property, and agreed and promised to pay therefor the said sum of $2,000 in the manner following, to wit, "To assume and pay a certain indebtedness of said plaintiffs to J. M. Arthur & Co., consisting of a book account and certain promissory notes amounting to the sum of fifteen hundred dollars, and the further sum of five hundred dollars in cash to be paid said plaintiffs by said defendants within thirty days from and after the said 9th of November, 1890." The objection is that the plaintiffs' right of ownership in the property is undefined, and that the allegation, "took possession," does not assist the averment, as the possession taken might be tortious. We do not think either objection is well taken, al: though the allegations might be more definitely expressed. The allegation is not intended to convey the idea of absolute ownership, but only of the sale and delivery of the plaintiffs' right and interest in the property of which they are in the possession. The prop. erty was mill machinery. The plaintiffs allege that they sold and delivered, for the consideration stated. their right and interest in said property, and that, in pursuance of such contract and sale, defendants took possession of it. We cannot say that possession taken under such contract and sale is tortious. We think, therefore, the complaint stated a cause of action. Other objections relate to alleged erroneous rulings in the progress of the trial. It is claimed that the court erred in overruling the defendants' objection to the testimony of several witnesses tending to show an oral agreement between the plaintiffs and defendants, on the ground that the price was over $50, and hence that the statute required such agreement to be in writing. The bill of exceptions shows that the plaintiffs made a contract with J. M. Arthur & Co. by which they agreed to pay, and Arthur & Co. agreed to sell to the plaintiff's the property in question for, the sum of $1,500, and that it was delivered to the plaintiffs under such contract, The last assignment of error is that the verdict is uncertain and indefinite. The verdict is as follows: "We, the jury in the above-entitled action, find for the plaintiff in the sum of five hundred dollars, with Interest thereon since November 9, 1890." Interest allowed by a verdict must be computed according to the rate provided by law, when no rate is specified. A failure, therefore, to fix a rate in the verdict, did not invalidate it. It is claimed, however, tha the verdict should have been set aside for the reason that interest should have been allowed only from December 9, 1890. The record discloses that, after the defendants filed their motion for a new trial, plaintiffs filed a cross motion, in which they offered to remit the excess of interest, which was allowed, and the excess accordingly deducted. Under these circumstances, the judgment will not be reversed on appeal, when it appears that the error in the amount allowed by the verdict is inconsiderable and ascertainable. The judgment must therefore be affirmed. and put into a mill in Columbia county, Or., but whether this was so or not, at the time of where it was being operated at the time of the alleged contract, their subsequent agreethe sale by plaintiffs to the defendants. It ment with Arthur & Co., and its ratification also tends to show that the plaintiffs con- by the plaintiffs, and their taking possession tracted to sell to the defendants their right of the property, including the interests of the and interest in the mill machinery, and also plaintiffs, under such arrangements, tended in the buildings, for the sum of $500, with to show his authority to bind the defendants the understanding that satisfactory arrange as a firm, or at least to show their ratificaments could be made with Arthur & Co. for tion of his authority so to do. The other the payment of the amount due them, who, rulings are substantially covered by the prinafter being made acquainted with the facts, ciple involved in this objection, and need no gave an order, of which the following is a further reference. copy: "Portland, July 25, 1890. Messrs. Duzan & Kaiser-Gentlemen: For value received, the undersigned has this day assigned and transferred to Lincoln Meserve, William Meserve, Joseph Meserve, Hawley E. Meserve, and James Meserve, partners by the name of Meserve Brothers, the right to demand and recover from you the possession of all the machinery and personal property intrusted to your care by the undersigned by contract entered into between you and the undersigned on the 13th day of May, 1890, by the terms of which you were intrusted by the undersigned with the possession and care of said property. You will therefore please deliver the possession of said machinery and personal property to said Meserve Brothers, and oblige, yours, respectfully. [Signed] J. M. Arthur & Co." In connection with this order, and executed at the same time, was the following writing: "J. M. Arthur & Co., Dealers in Machinery and Supplies. Portland, Oregon, July 25, 1890. Messrs. J. M. Arthur & Co.-Gentlemen: We are knowing to and cognizant of the agreement between you and Meserve Bros. It is satisfactory to us, and we came up for this special purpose, and they have come also for this special purpose. Yours, respectfully, Duzan & Kaiser." The record discloses that both of said papers were executed at the same time, and in the presence of the plaintiff Kaiser and the defendants Lincoln Meserve and William Meserve. In view of these facts and the writings, when the defendants took possession of the property, they accepted and received the plaintiffs' right, title, and interest therein, and thus obviated the objection that the agreement was not in writing. Objection is also made to the statement of one of the defendants, while a witness, in regard to the existence of the partnership, and the agreement to pay the plaintiffs $500 for their right and interest in the machinery and other property. The record discloses that the negotiations for the purchase of the plaintiffs' interest in the property were conducted by one of the defendants, and that the agree ment to sell for the consideration already named was made with him, as the representative of Meserve Bros., in case satisfactory arrangements could be effected with Arthur & Co. The point of the objection is that no authority is shown in such defendant and witness to bind the other defendants as a firm; (24 Or. 553) SHERMAN v. BELLOWS et al. A private citizen cannot bring a suit against a state board to enjoin the erection of a public building at a place other than prescribed by law, unless his burden of taxation will thereby be increased. Appeal from circuit court, Linn county; George H. Burnett, Judge. Suit by D. C. Sherman against A. J. Bellows and others, trustees of the Oregon Soldiers' Home, for an injunction. Decree for plaintiff, and defendants appeal. Reversed. The other facts fully appear in the following statement by MOORE, J.: This is a suit brought by the plaintiff in his own name against the trustees of the Oregon Soldiers' Home to restrain them from purchasing land for a site and locating the Soldiers' Home at Roseburg. The material allegations of the complaint, in substance, are that plaintiff is a citizen, resident, and taxpayer of the state of Oregon; that the defendants are the duly appointed, qualified, and acting trustees of the Oregon Soldiers' Home, and by virtue of their office are charged with the duty of selecting and lo cating the site of said Oregon Soldiers' Home, and of erecting suitable buildings thereon; that said Oregon Soldiers' Home is a public institution, established and provided for by the legislative assembly of the state of Oregon; that section 3, art. 14, of the state constitution provides that all such institutions shall be located at the seat of government; that in the contest for the location of such seat of government at the general election in 1864, Salem, in Marion county, Or., received a majority of all the votes cast, and was thereupon duly declared the permanent seat of government; that plaintiff has been informed and believes that said defendants, disregarding their obliga- | tions as trustees of said Oregon Soldiers' Home, have entered into a contract to purchase a tract of land at or near Roseburg, Or., with the intention of using the same as the site of said Oregon Soldiers' Home; that, as plaintiff is informed and believes, said defendants have had prepared a plan and specifications for the necessary buildings, and are about to let a contract for the erection of the same at great cost and expense to the state of Oregon, without authority of law; that by their said action in contracting to purchase said tract of land at or near Roseburg, Or., as the site of the said Oregon Soldiers' Home, the erection of public buildings thereon, and expenditure of large sums of public money therefor, great injury will be done to the public and to this plaintiff; and that plaintiff has no plain, adequate, or speedy remedy at law; wherefore he prayed a preliminary injunction, and that at the hearing it be made perpetual. To this complaint the defendants interposed a demurrer, for the reasons: First, that the plaintiff has not the legal capacity to bring this suit; and, second, that the complaint does not state faqts sufficient to constitute a cause of suit against the defendants. The demurrer was overruled, and, defendants refusing to further plead, a permanent injunction was granted, from which the defendants appeal. Geo. E. Chamberlain, Atty. Gen., for appellants. H. J. Bigger, A. O. Condit, and Loring K. Adams, for respondent. MOORE, J., (after stating the facts.) Two questions are thus presented: First, has the plaintiff any legal capacity to sue? and second, does the complaint state facts sufficient to constitute a cause of suit? While there is an irreconcilable conflict in the decisions upon the right of a taxpayer, in his own name, to restrain by injunction a municipal corporation and its officers from illegally cre ating debts, or disposing of the corporate property or funds, we think the decided weight of authority supports the doctrine that he may invoke the aid of a court of equity to obtain such relief, whenever it is made to appear that such illegal act of the corporation would increase his burden of taxation. Hodgman V. Railway Co., 20 Minn. 48, (Gil. 36;) Willard v. Comstock, 58 Wis. 565, 17 N. W. Rep. 401; Railroad Co. v. Dunn, 51 Ala. 134; Springfield v. Edwards, 84 Ill. 627; McCord v. Pike, (Ill.) 12 N. E. Rep. 259, 2 Amer. St. Rep. 85, and exhaustive notes. When a plain official duty is threatened to be violated by some official act, any person who will sustain per sonal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it. Board v. McComb, 92 U. S. 531. Conceding, without deciding, that the Soldiers' Home is a public institution of the state, provided by the legislative assembly, and that section 3, art. 14, of the constitution required the trus tees to locate it at Salem; that they had threatened to violate their official duty by locating it at Roseburg,-does it appear that plaintiff has sustained a personal injury thereby? If it were alleged that, in consequence of the location of the Soldiers' Home at Roseburg, plaintiff's property would be subjected to a burden of taxation in addition to that which it would be required to bear if located at Salem, then he would sustain a personal injury; and, since an ade quate compensation cannot be had at law, he would be entitled to an injunction to prevent such location. "The damages," says Judge Dillon, "which he will sustain in case his burdens of taxation are increased, are not in common with the damages to other taxpayers, but they are special, affecting his private property and private rights." 2 Dill. Mun. Corp. § 731, and cases cited. A municipal corporation holds its property and funds in trust for the benefit of the taxpayers, and whenever it attempts to allow an illegal claim, consent to a collusive judgment, misappropriate the public money, or do any other act ultra vires, the taxpayer, in his own name, may have an injunction to restrain such unlawful acts, when his property would thereby be compelled to bear its pro rata share of the burden thus imposed. Willard v. Comstock, supra. His right to invoke the aid of a court of equity to restrain by injunction such unlawful acts depends upon his personal injury, and the test of such injury is measured by the fact that his property would be subjected to an additional burden of taxation. If his property will not be subjected to an additional burden of taxation, and he will not sustain any other personal damages, his injury is not contradistinguished from that of all other taxpayers of the municipality, and he cannot invoke the aid of equity to prevent an unlawful corporate act, however much he may, in common with others, be injured. Seager v. Kankakee Co., 102 IL. 669. His special injury is the gist of the suit, and, unless it is alleged and proved, there can be no equitable relief in such cases. McDonald Y. English, 85 Ill. 236. In no case has it ever been held that a private individual may maintain a bill to enjoin a breach of public trust (in the absence of statutory authority) without showing that he will be specially injured thereby. Ang. & D. Highw. § 284. The plaintiff does not allege that, in consequence of the location of the Soldiers' Home at Roseburg, his property will be subjected to any burden of taxation, or that he will sustain any other special injury. These allegations were necessary to give the court jurisdiction to entertain his suit and grant the injunction, and, in their absence from the complaint, the plaintiff shows no legal capacity to sue; and besides, the facts therein stated are not sufficient to constitute a cause of suit. For these reasons the decree of the court below is reversed, the demurrer sustained, and the cause remanded for such other proceedings as may be deemed necessary, not inconsistent with this opinion. 1. Tide lands belonging to the state are not "state lands," within Code Proc. § 649, providing for service of notice in condemnation proceedings if the property sought to be appropriated is state, school, or county lands, and cannot be condemned, there being no authority therefor. 2. Gen. St. § 1572, by expressly conferring on railroad companies the right to construct their lines across, along, or on any river, stream of water, or water course which their routes intersect or touch, excludes the right to construct lines across tide lands belonging to the state. 3. The right given cities by Act March 24, 1890, "to project or extend" their streets over tide lands is merely to continue an existing street in the same direction and with the same width. 4. Gen. St. § 1571, provides that any railway company may cross, intersect, join, and unite its railway with any other railway before constructed "at any point" in its route, and, if the two companies cannot agree on the compensation or the points and manner of the crossings and connections, the same shall be determined as provided for the taking of land necessary for the constructing of a railroad. Code Proc. § 651, provides that if the court shall be satisfied by competent proof that the property sought to be appropriated is necessary for the purposes of the enterprise, he shall make an order for a jury. Held, that where the points of crossing could not be determined by the companies the court was to determine them, and that it did not have to declare a necessity for a crossing at a particular point desired by the new road where it would greatly injure the senior road, and near by which the new road could pass without such injury, and with merely an additional expense to the new road. 5. Under Code Proc. § 651, providing that if at the time of hearing the petition the court or judge shall be satisfied that the property sought to be appropriated is necessary for the purposes of the enterprise, he shall make an Rehearing denied. order for a jury, it is not error for the judge hearing the application on the question of necessity, to send the jury trial to another judge, though the better practice is for the same judge to hear the entire matter. Appeal from superior court, King county; I. J. Lichtenberg, Judge. Proceeding by the Seattle & Montana Railway Company against the state of Washington and others to condemn a right of way. From a decree for petitioner, defendants appeal. Reversed. Ashton & Chapman and A. F. Burleigh, for appellants. Burke, Shepard & Woods, for respondent. W. C. Jones, Atty. Gen., and Jas. A. Haight, Asst. Atty. Gen., for the State. STILES, J. This was a proceeding for the condemnation of a right of way for respondent's railroad, and involves three different appellants, the state, the Columbia & Puget Sound Railroad Company, and the Northern Pacific Railroad Company. The right of way sought to be appropriated lies over land be tween the high and low water marks in Elliott bay, on the water front of the city of Seattle. 1. The state appeared by the attorney general, and moved to dismiss the proceeding as against it, on the ground that the court had no jurisdiction to entertain it, which motion was denied. We think the court erred in its ruling on this point, for the following reasons: The state is the owner of this land, and there is no authority, either express or implied, in the statutes, for the taking of any part of it through exercise of the power of eminent domain. Our eminent domain act, as applied to railroads, (Gen. St. §§ 1569, 1570; Code Proc. tit. 18, c. 5,) must be construed, as are all such acts, as having regard only to the taking of private property, unless there is either express or clearly implied authority to extend them further. Lewis, Er. Dom. § 273; State v. Anthoine, 40 Me. 435; Inhabitants of Marblehead v. County Com'rs, 5 Gray, 451; Inhabitants of Charleston v. County Com'rs, 3 Metc. (Mass.) 202; Stevens v. Railroad Co., 21 N. J. Eq. 259. The respondent, we believe, concedes thus much, but it claims to avoid the force of it by citing that portion of Code Proc. § 649, providing for service of notice in condemnation cases, which reads as follows: "In case the land, real estate, premises, or other property sought to be appropriated is state, school or county land, the notice shall be served on the auditor of the county in which the land, etc., is situated." Tide lands are "state" lands in a certain sense; that is, they belong to the state; but in all the nomenclature of our constitution and statutes the latter term does not include the former. Articles 15 and 17 of the constitution treat of tide lands, while article 16 is devoted to school and granted or state lands. Title 3, c. 7, Gen. St., provided for a "state land com mission," to whose supervision "all public lands now owned by or the title to which may hereafter vest in the state" was committed. But this sweeping term "public lands" did not include school lands, tide lands, the harbor areas, the capitol grounds, nor any of the lands upon which the public institutions of the state are located, all of which are committed to the supervision of other boards or officers. As well might it be contended that because a railroad is authorized to enter upon and condemn "any" land for its tracks, depots, shops, roundhouses, etc., it could, by serving a notice upon the auditor of Thurston county, take the entire 10 acres upon which the state capitol stands for a depot and shops. Thus much for construction of the term "state lands." But it would seem that the legislature, in expressly conferring upon railroad companies the right to construct their lines "across, along, or upon any river, stream of water, water course, etc., which the route of such railway shall intersect or touch," (Gen. St. § 1572,) has gone as far as it intended in this direction. True, this law was passed in 1888, when the territorial legislature had not full, nor perhaps any, jurisdiction over such lands as that in question; but no change has been made in the law, and we can only interpret it as we find it. What it meant then it means now; the change in the conditions from territorial times to the present has not changed the meaning or intent of the statute. The argument from convenience is strongly urged upon us, and it is said that, unless tide lands are thus subject to condemnation, much embarrassment will ensue to the building of railroads, because the situation of the land in many places, and particularly at this place, is such that no land is available for tracks and railway terminal facilities except along the shores of tide waters and upon the tide flats. The state of Washington, by its constitution, has taken an advanced and decided position with regard to navigable waters and the lands beneath them; a position which is scarcely anywhere paralleled by the written law. It proposes to determine for itself what shall be the disposition of these lands, and how the facilities for transportation upon, to, and from its great natural water highways shall be managed and enjoyed. It will doubtless encourage and invite the building of railways, so as to take advantage of these lands and waters; but it proposes to say how that shall be done, and when and by whom. All railways built upon its tide lands, and all which may be built there until it shall have provided for them by law, will be there at sufferance, subject to be removed or rearranged, as the legislature, subject to the constitution, may ordain. It has harbor lines to lay in front of the city of Seattle, which must be inviolate, and the lands between which must be inalienable, except as the constitution per mits; and it has its own policy, as announced in legislation already enacted, concerning the disposal of the other tide lands. 2. The disposition of the case is, at this point, complicated with another matter, viz. the fact that the place over which this condemnation was sought was within what is known as "Railroad Avenue," a street laid out by the city council of Seattle in 1889, before the adoption of the constitution, and perpetuated in the freeholders' charter of 1890. The court below held that, inasmuch as this was a street authorized to be laid out by the constitution and the statutes of the state, the state, although a proper and necessary party to this proceeding, was not entitled to any consideration in the assessment of damages for the laying of the railroad along the street. We are unable to see why the state, as owner of the fee, and of lands abutting on both sides of the street, should not be entitled to damages for the occupation of the street for ordinary railroad purposes, even conceding this to be a lawful street, unless we were to adopt the theory that such occupation is not an additional burden for which the abutting owner may claim damages,-a theory which could hardly stand under our constitutional provisions against the taking or damaging of property without compensation, as the state would certainly be entitled to rank as a private owner in such a case. Hatch v. Railroad Co., (Wash.) 32 Pac. Rep. 1063. Neither the constitution nor the statute assumes to confer the fee of any tide lands for streets; an easement only is given. The court's ruling last referred to, however, would not cut an important figure in this case, in view of a dismissal as to the state. But the main question is left,-whether Railroad avenue has any legal existence,—and this question vitally concerns the other parties to the proceeding. This street was declared to be a public street of the city immediately after the fire of 1889, when all of the ground covered by it was free from buildings or other structures, and it has been kept free ever since, although it occupies some of the space where such structures formerly stood. It begins at a point on the northeasterly shore of Elliott bay, and skirts the bay for several miles, much in the form of the letter U. It does not touch the upland at any point except where it begins, but keeps mostly within the low-tide line, until it passes south of King street, where the land recedes to the south and east, forming a large inner bay, which the street crosses. It is 120 feet wide, and is not the extension of any city street. While it was laid out as and declared to be a public street, its real purpose was undoubtedly to afford an open space for the use of railroads, and its entire width, except space for sidewalks has been covered by specific grants to rail. road companies, of a certain number of feet each. When fully occupied, in accordance |