Opinion of the Court-FULLERTON, J. [24 Wash. dence of the defendant's witnesses, who had equal opportunities to observe the conduct of the parties, and to hear what was said between them. What little basis there is in the evidence to support the ingenious theory put forth by the state is apparent from the recitals we have made from the record. Its purpose, however, is rather to account for the lack of evidence than to reconcile facts shown by the evidence. How ineffective it is in this regard needs but little consideration to show. If the blow which is said to have stunned the victim was struck after he had removed his clothes, it must have been struck while he was in the shack. The murderer must then have carried or dragged him out of the shack to some obscure place before cutting his throat, else there would have been evidences of blood on some of the surroundings. After cutting the throat, he must have waited until the body had quit bleeding, and have washed off the gore, before replacing the every-day clothing, else they would certainly have borne some marks of contact with the blood of the deceased. It would hardly seem possible that a person capable of such cool, fiendish deliberation would have cast the body adrift with knife marks upon it capable of being recognized the moment the body was discovered, or that he would have cast it adrift at all, when it would have been so easy to conceal it where there was scarcely a probability of its ever being discovered. But this, as well as the theory advanced by the state, is mere speculation. The question is not what the appellant might have done, but what in fact did he do. Without further pursuing the inquiry, we conclude that there is no substantial evidence upon which the verdict of the jury can be sustained, and the judgment of this court will be that the judgment of the court below be reversed, and the cause remanded, with instructions to discharge the appellant; and it is so ordered. REAVIS, C. J., and DUNBAR, ANDERS and WHITE, JJ., concur. [No. 3196. Decided March 30, 1901.] THE STATE OF WASHINGTON on the Relation of Robert B. Lehman v. ROBERT BRIDGES, Commissioner of Public Lands. CONSTRUCTION OF STATUTE. TIDE LANDS -FIRST AND SECOND CLASS Under Laws 1897, p. 248, § 39, which provides that tide lands of the first class shall comprise tide lands "within or in front of the limits of any incorporated city or town, or within two miles thereof on either side," and all tide lands not included in the above class shall be known as second class, the term "in front of the limits of any incorporated city" must be construed as referring to only such lands as lie adjoining and in front of the limits of a city; and the term "within two miles thereof on either side" should be construed as referring to such tide lands as are located, by measurement along the general direction of the city shore line, within a distance of two miles from either of its two boundary lines which extend inland from such shore line. Original Application for Mandamus. B. F. Heuston, for relator. Thomas M. Vance, Assistant Attorney General, for respondent. PER CURIAM. This is an original application made to this court by the relator, whereby he seeks a peremptory writ of mandate against the respondent, commanding him to receive and file the relator's application to purchase certain tide lands in the county of King, state of Wash ington, and to issue a contract of sale for such lands as second-class tide lands. It appears from the record that the application to purchase was duly made to the respondent as required by law, and accompanying the application was a tender of the amount necessary to be paid before the issuance of a contract for the sale of second-class tide lands. The only question submitted for our determination is, Are the lands involved first or second-class tide lands, within the meaning of the statute classifying tide and shore lands? The act of March 16, 1897 (Laws 1897, p. 248, § 39), provides as follows: "The tide and shore lands of the state of Washington, which are not reserved from sale by the constitution and laws of the state, shall be divided into two classes: (1) Tide and shore lands of the first class, which shall comprise all tide and shore lands within or in front of the limits of any incorporated city or town, or within two miles thereof on either side, including submerged lands lying between the line of mean low tide and the inner harbor line, wherever harbor lines have been established or shall be established. (2) All tide and shore lands in the state not included in the above class shall be known as second-class tide and shore lands, and shall be leased and sold as in the manner provided in this act." The record shows that the lands involved here lie opposite the easterly boundary of the city of Tacoma, and that the limits of said city on the easterly side extend from the upland of the shore upon which the city is built down to the bay, and intersect and cross the government meander line on the shore thereof in a general perpendicular direction, and extend on across the tide lands fronting on said shore and out into the navigable water of said bay, and thence "down the bay," as the boundary is described, into Puget Sound; that the limits of such city thus include not only the meander line, tide lands, and harbor areas in front of the shore on which the city is built, but they extend out into navigable water from six to thirty fathoms deep, and at some places more than a mile from any shore; that the tide lands described in the petition are upon the opposite side of the bay from such city, and separated from it by navigable water, and by more than two miles, measured along the meander line of the shore upon which the city is built, but said lands do lie within two miles in a direct line across the bay from, and in front of, an imaginary city boundary line running up and down said bay midway between the shores thereof. If these are tide lands of the first class, as contended. by respondent, they must lie either "within" or "in front of" the limits of the city of Tacoma, or "within two miles thereof on either side." It is clear that they do not lie "within" the limits of the city. Do they lie "in front of” the limits of an incorporated city or town? We think not, within the meaning of the statute above quoted. It is our opinion that the legislature intended by the words "in front of" to include only such lands as lie adjoining and in front of the limits of an incorporated city, and it was not intended that the words should apply to lands which may happen to lie in front of a city in fact, but across a channel of navigable water and upon an opposite shore. It is possible for another city or town to be located upon such opposite shore, and in that event the lands adjoining or within its shore limits certainly could not be held to lie "in front of" the limits of another city upon an opposite shore when a channel of navigable water exists between the boundaries of the two. From a geometrical point of view "in front of" might include everything between the prescribed line and infinity; but, as applied practically to measurements on the surface of the earth, 24 366 d25 395 24 366 €28 356 we believe it can only mean immediately in front of,that is, adjoining. The remaining question is, are these lands "within two miles thereof on either side," considered with reference to the limits of the city of Tacoma? The only measurement which brings them within two miles is by a direct line across the bay from and in front of an imaginary city boundary line running up and down said bay midway between the shores thereof. We believe the legislature intended by the language above quoted to determine the location of such lands by measurement along the general direction of the shore line, a distance of two miles from either of the two boundary lines which extend inland from such shore line. Such measurement, it is conceded, cannot include these lands. We, therefore, conclude that the lands involved must be held to be second-class tide lands, and that the relator is entitled to the relief which he asks. We accordingly direct the issuance of a peremptory writ of mandate in accordance with the prayer of the petition. [No. 3543. Decided March 30, 1901.] NORTHERN COUNTIES INVESTMENT TRUST, LIMITED, Ap- ADVERSE POSSESSION OCCUPATION OF RIGHT OF WAY -- WHEN CON Where a portion of the land granted to a railway for right of way purposes was, during its non-user by the railway, fenced and cultivated by the grantor of the easement and his successors for a period of more than ten years, no title by adverse possession inured to them, since the mere occupation of a portion of a right of way by the owner of the servient estate is not inconsistent with the easement, but must be construed as permissive, in the absence of acts upon his part actually tending to prevent the use of the right of way for railway purposes. |