the direction of the state, the state is to be regarded as the superior, and responsible as such, although the work was done by contract, and by direction of its duly authorized officers. 4. EMINENT DOMAIN 271-DAMAGES NOT ANTICIPATED-RECOVERY. Where injuries result from construction of state highway, there may be a recovery for damages not contemplated in the plan of construction of the highway. 5. TRIAL 252(7)-INSTRUCTIONS-MATTERS NOT IN ISSUE. Where it was admitted that all work on a state highway was done in a prudent and cautious manner, an instruction which left to the jury to determine whether certain material was negligently placed was erroneous. 6. EMINENT DOMAIN271-CONSTRUCTION OF STATE HIGHWAY-DAMAGES. If blasting is necessary in the construction of a state highway, and damages cannot be avoided, the state may inflict it by virtue of its sovereign right, but must respond in dam ages. 7. EMINENT DOMAIN 303 REMEDY OF PROPERTY OWNERS-DAMAGES. In an action for damages resulting from construction of state highway, plaintiff was entitled to recover any increased expense incurred in operating its railway during the time necessarily consumed in making repairs, such as additional labor and supplies used on account of trains delayed or annulled as a result of damages to the track. 8. EMINENT DOMAIN 146 STATE HIGHWAYS DAMAGES MITIGATION "MuNICIPAL." If the building of a state highway benefited plaintiff's railroad property in a special degree, and the benefits were not merely speculative, they should be set off against damages due to construction of highway, since the word "municipal," as used in Const. art. 1, § 16, providing that no right of way shall be appropriated to the use of any corporation, other than municipal, until full compensation therefor be first made, etc., cannot be construed strictly, but merely as distinguishing public political bodies from corporations of a quasi public nature. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Munici pal.] 9. EMINENT DOMAIN 296 - CONSTRUCTING STATE HIGHWAY-EVIDENCE. In an action for damages to plaintiff's track, resulting from construction of a state highway, the court erred in admitting evidence that plaintiff had refused to allow contractor to take up rails from time to time before setting off blasts; the state having made no arrangements in advance, nor condemned plaintiff's property. En Banc. Appeal from Superior Court, Thurston County; D. F. Wright, Judge. Action by the Great Northern Railway Company against the State of Washington. Verdict for plaintiff for part of the amount claimed, and from the judgment, and an order denying new trial, plaintiff appeals; and the State prosecutes cross-appeals from orders overruling demurrer to complaint and denying motion for judgment notwithstanding the verdict. Reversed on plaintiff's appeal, and remanded for new trial. F. V. Brown and F. G. Dorety, both of Seattle, for appellant. W. V. Tanner, Atty. Gen., and Glenn J. Fairbrook, of Olympia, for the State. HOLCOMB, J. Plaintiff brought this action under the constitutional provision to recover compensation for damage done by the state to plaintiff's track, which resulted from the construction of a state highway. The damage complained of occurred along a stretch of two miles at the base of Chuckanut Mountain, a few miles south of Bellingham. The railroad track is located along the shore at the base of the mountain, and the water front road of the Pacific Highway, which was constructed by the state in 1914, 1915, and 1916, was built upon the hillside, approximately parallel with, and from 125 to 175 feet above, the railroad track. The hillside consists of a thin layer of top soil over a foundation of solid rock. On account of the steepness of the bluff, it was necessary to blast out a shelf for the highway and to dump material on the hillside and railroad track below. This caused slides, obstructed the track, bent rails, damaged ties, poles, and wires, and delayed trains, for which plaintiff claims an expenditure of $16,715.53 and an estimated sum of $25,000 to protect against imminent danger of further damage from slides caused by deposits and impaired drainage. Every effort was made to avoid unnecessary damage. Extra rails and ties were provided in advance, fingmen were stationed at the danger zones, a special telephone was installed, and the contractor's men employed upon the state highway always helped to clear the track, working in company with the railway section crew. Notwithstanding these precautions, the plaintiff in two years, during the construction of the highway, was forced to expend $15,576.80 in replacing the rails and equipment, removing slides and débris, paying train crews during periods of delay, providing flagmen, etc. Of this sum bills amounting to $1,139.22 were paid by the state. A written stipulation was filed, covering the amount of expenditures, to which was attached itemized bills, showing the amounts claimed for train delays, labor, rental of equipment, and other items. It was stipulated that these items were actually expended in connection with material which fell upon the railroad track, but it was denied that the falling of the material upon the track was caused by the highway construction, or that the state was responsible therefor. The state's demurrer to the complaint, and motion for judgment non obstante veredicto, were overruled, and the state has crossappealed from the orders overruling the demurrer, and denying its motion for judgment non obstante veredicto. A verdict was returned in favor of the plaintiff in the sum of $7,391.34. The plaintiff moved for new trial, on the ground of errors in instructions and ☑ For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes in admission of evidence, which motion was its value is impaired, to that extent he should denied, and judgment entered on the verdict. be paid." Plaintiff appeals from the judgment and order denying a new trial. [1] The plaintiff's theory is that in inflicting the damage the state acted in its sovereign capacity, that it was necessary for the accomplishment of a public object, and that plaintiff is entitled to just compensation under Const. art. 1, § 16. The fact that the state did not condemn plaintiff's property in advance does not absolve it from liability, where no negligence is charged in the performance of a governmental duty. Kincaid v. Seattle, 74 Wash. 617, 134 Pac. 504, 135 Pac. 820. The constitutional provision must have been intended to protect all the essential elements of ownership which make property valuable. Among these elements is fundamentally the right of user, including, of course, the corresponding right of excluding others from the use. A physical interference with the land, which substantially obstructs this right, takes the plaintiff's property to just so great an extent as it is thereby deprived of its right. To deprive one of the use of his property is depriving him of his property; and the private injury is thereby as completely effected as if the property itself were physically taken. Accordingly it has been held that any use of land for a public purpose, which inflicts an injury upon adjacent land, such as would have been actionable if caused by a private owner, is a taking and damaging within the meaning of the Constitution. Nevins v. City of Peoria, 41 111. 502, 89 Am. Dec. 392, lays down the principle with which we are in accord: "Neither state nor municipal government can take private property for public use without due compensation, and this benign provision of our Constitution is to be applied by the courts whenever the property of the citizen is invaded, and without reference to the degree. * * * The same law that protects my right of property against invasion by private individuals must protect it from similar aggression on the part of municipal corporations. A city may elevate or depress its streets, as it thinks proper; but if, in so doing, it turns a stream of mud and water upon the grounds and into the cellars of one of its citizens, or creates in his neighborhood a stagnant pond that brings disease upon his household, upon what ground of reason can it be insisted that the city should be excused from paying for the injuries it has directly wrought? It is said that the city must grade streets and direct the flow of waters as best it can for the interests of the public. Undoubtedly; but, if the public interest requires that the lot of an individual shall be rendered unfit for occupancy, either wholly or in part, in this process of grading, or drainage, why should not the public pay for it to the extent to which it deprives the owner of its legitimate use? Why does not the constitutional provision apply as well to secure the payment for property partially taken for the use or convenience of a street as when wholly taken and converted into a street? Surely the question of the degree to which the property is taken can make no difference in the application of the principle. To the extent to which the owner is deprived of its legitimate use, and in so far as It is contended by the state that a suit against it to recover for damages will not lie, and that the damage herein involved is not for a public use, within the meaning of the constitutional provision requiring compensation. We cannot accede to this contention; for, if the state could have condemned the right to inflict the necessary damage or invade plaintiff's property, its failure to so condemn is not an excuse to deny plaintiff's recovery. Kincaid v. Seattle, 74 Wash. 617, 134 Рас. 504, 135 Pac. 820; Provident Trust Co. v. Spokane, 75 Wash. 217, 134 Pac. 927. * * * [2] When taking private property for a public use, the state acts in its sovereign capacity. Gasaway v. Seattle, 52 Wash. 444, 100 Pac.. 991, 21 L. R. A. (N. S.) 68. "It goes not as a trespasser, inspired by selfish or unlawful motive, but as one taking without malice or intent to do wrong, and presumptively for the public good. It cannot put on the cloak of a tort-feasor under the statute if it would. It cannot plead a willful wrong to defeat a just claim. The action for damages for land taken without compensation is usually spoken of and is in its nature one of trespass; but it is not strictly so. If the state or its agent, in the prosecution of a public work, takes no more than is necessary, and prosecutes its work without negligence, it is neither a trespasser nor a tort-feasor." Kincaid v. Seattle, 74 Wash. 617-623, 134 Pac. 504, 135 Pac. 820. If we should hold that the state cannot condemn the right to inflict the necessary damage in the prosecution of a public work, it in effect would hold that the officers and contractors of the state could be enjoined from committing the damage. While the work was in progress the plaintiff attempted to enjoin the contractor from inflicting the damage. The court said: "To hold to the contention of complainant [i. e., to grant the injunction] would render the state impotent in this enterprise and destroy a large public work of public necessity." G. N. Ry. Co. v. Quigg (D. C.) 213 Fed. 873-879. [3] In our opinion, the theory that property rights are ever to be sacrificed to public convenience or necessity without just compensation is fraught with danger, and should find no lodgment in American jurisprudence. If the acts which caused the injury were done under and in consequence of the direction of the state, then the state is to be regarded as the superior, and responsible as such, although it does the work by contract and by the direction of its duly authorized officers. The plaintiff's complaint states a cause of action under article 1, § 16, of our Constitution, and the state's demurrer was properly overruled. There is no merit in the state's assignment of error in denying its motion non obstante veredicto. This brings us to plaintiff's assignment of errors. 1. Plaintiff assigns error in the court's in struction No. 12. It, being contrary to the [7] 6 and 7. The court erred in failing and view we have above expressed, is clearly er roneous. [4] 2 and 3. It is contended by plaintiff that all of the last paragraph of instruction No. 9 is erroneous; but we think the same is correct, excepting that portion which reads: "But the state is not liable for any damage to the plaintiff, if you find that any damages were so sustained, which were not anticipated in or contemplated in the plan of the construction of the highway referred to in the complaint; and if you find that any damage has resulted to the plaintiff which was not contemplated by the plan of the construction of the highway, such damage may not be considered by you in arriving at your verdict." That portion of the instruction is contrary to the view we have expressed herein, and if the same is supplanted by that portion of plaintiff's third requested instruction, or an instruction of similar import, it would express the law as we have determined. That portion of plaintiff's third requested instruction to which we refer reads as follows: "If, in addition to the foregoing facts, which are admitted, you should find that the plain tiff's railway has been or will be physically damaged by the casting or sliding of earth or rock upon it as a necessary result of such con refusing to give that portion of plaintiff's sixth requested instruction, or an instruction of similar import, which is: "You should also include in such verdict any increased expense which has been or will be incurred by the plaintiff in operating said railway during the time necessarily consumed in making such repairs, such as additional labor and supplies used on account of trains delayed or annulled as a result of any damage to the said railway, for which the state is liable under said instructions." Our views, as heretofore expressed, explicitly point to the theory that plaintiff may recover for deprivation of the use of his property as though it was physically taken. Therefore instruction No. 10 is clearly erroneous. [8] 8. Plaintiff contends that the court erred in giving its instruction No. 14, relating to the setting off of benefits. The Constitution, art. 1, § 16, provides: struction of the state highway, or as a neces-lar to ours. Municipal corporations are per sary result of any work of highway construction performed in a manner directed by the state officials in charge, or in a manner necessary to, and reasonably to be expected in, every practicable, known, and practiced engineering method of constructing such highway, your verdict should then be for the plaintiff, and for all • of such damage you should award compensation for the plaintiff." [5] 4. That portion of instruction No. 13 reading as follows: "And if you find that in constructing said highway any contractor or employé of the state left loose rocks or material upon said hillside, which could have been removed, but which, having been left on said hillside, caused | damage to the plaintiff, and if you find that such material was negligently left on said hillside, then the state is not liable for any damage which may have resulted from such negligent acts" -is erroneous, for it leaves the jury to determine whether or not the material was negligently placed, when there is no evidence of negligence; it having been admitted that every portion of the work was done in a pru dent and cautious manner. [6] 5. Instruction No. 11 is erroneous, under the rule announced in Farnandis v. G. N. Ry. Co., 41 Wash, 486, 84 Pac. 18, 5 L. R. A. (N. S.) 1086, 111 Am. St. Rep. 1027, and Patrick v. Smith, 75 Wash. 407, 134 Pac. 1076, 48 L. R. A. (N. S.) 740. In the latter case the court said: "The authorities are agreed upon the question that one who, in blasting upon his premises, casts débris upon the land of another, is liable in damages, regardless of the degree of care or skill used in doing the work. 19 Cyc. 7." If blasting is necessary in the construction of a highway, and damages cannot be avoided, the state may inflict it by virtue of its sovereign right, but it must respond in damages, as it cannot be considered as tortious. If mitted to offset benefits from condemnation [9] 9. Plaintiff contends that the court erred in admitting testimony that the Great Northern had refused to allow the contractor to take up its rails from time to time before setting off blasts, and in denying plaintiff's motion to strike all of that testimony. It cannot be said that the testimony of the con tractor, that he requested plaintiff to take up and replace the rails of its track each time a blast was to be exploded, and that he could have avoided practically all of the damage if his request had been granted, is proper The state had made no arrangements in ad vance, nor had it condemned the property. The rails were a part of a continuously operated property fixed in place for use, and a part of as necessary a public use as the state's highway itself, and were there first. Surely the railway company could not be made to take up its track without condemnation. The contractor could not remove them temporarily without interfering with the use of the railway by its owner. This evidence should not have been admitted, and the de nial of plaintiff's motion to strike it was er-party must pay his own costs and the estate roneous. For the errors herein indicated, the cause is reversed on plaintiff's appeal, and remanded for new trial. ELLIS, C. J., and MOUNT, MAIN, PARKER, WEBSTER, FULLERTON, and CHADWICK, JJ., concur. (102 Wash. 254) CORNETT et al. v. WEST. In re CORNETT'S ESTATE. (No. 14622.) should not be made liable therefor. Department 1. Appeal from Superior Court, Spokane County; Hugo E. Oswald, Judge. Action by William H. Cornett, individually and as guardian, and others, and as trustee under the will of Roberta L. Cornett, deceased, against J. Elmer West, and proceedings for the same relief in the same court in the matter of the estate of Roberta L. Cornett, deceased. From the judgment both parties appeal. Modified, and cause remanded. Stephens & Jack, of Spokane, for appel(Supreme Court of Washington. May 8, 1918.) lants. E. O. Connor, of Spokane, for respond 3. TRUSTS239-MANAGEMENT OF ESTATEAUTHORITY OF TRUSTEE. A trustee under a nonintervention will can act only in conjunction with his cotrustee, and cannot borrow money in the name of the estate without his concurrence, and if he does so he may be required to personally take up the loan and relieve the estate of its apparent obligation. 4. TRUSTS 315(1) NONINTERVENTION WILLS-COMPENSATION OF TRUSTEES. Where a trustee under a nonintervention will personally performs services in the management of the estate, he is, under the express provisions of Probate Code (Laws 1917, p. 687) §158, entitled to a reasonable compensation therefor. 5. TRUSTS315(3) - FEES AND COMPENSA TION-STATUTES-ALLOWANCE. Where the court has decided that determi nation of the fees of the trustees under a nonintervention will must await the termination of the trust, it was error to determine for what part of the trust period the fees should be fixed pursuant to a former statute and for what pursuant to the Probate Code 1917, § 158. 6. TRUSTS303-NONINTERVENTION WILLS -FINAL ACCOUNTING. Probate Code, § 92, providing for final accounting under nonintervention wills, governs every case in which the executor or trustee under such a will has not fully executed the trust before the statute took effect, the object of the statute being to provide record title of the estate distributed. ent. ELLIS, C. J. In March, 1917, William Forrest Cornett and Gordon Forrest Cornett, both at the time minors, by William H. Cornett, their guardian ad litem, and William H. Cornett in his indivdual capacity and as trustee under the will of Roberta L. Cornett, deceased, brought an action in equity in the superior court for Spokane county to remove. the cotrustee, J. Elmer West. At the same time the same parties filed in the same court a petition to the same end in the probate proceedings in the estate of Roberta L. Cornett. The principal grounds advanced for the removal were that West, without consulting his cotrustee, had borrowed money in the name of the estate, which, with other funds of the estate in his possession, he used in paying fees claimed by himself as executor, and in addition thereto had appropriated to his own use $150 per month, as fees for special services in collection of rents of the "Altadena" apartments, belonging to the estate. For the rest the pleadings present an unprofitable tale of charges and countercharges of the two trustees touching their treatment of each other, which we shall not repeat. By stipulation the two proceedings were consolidated for the purpose of trial, and are here for review upon the same record. Roberta L. Cornett died testate in California on November 3, 1914, leaving surviving plaintiffs, her husband and their two sons. The elder son was at the time of trial 21 years old, the younger 14. She died possessed of a considerable estate, her separate property, situated in the states of Washington and California. By nonintervention will she devised and bequeathed all of her property to William H. Cornett and J. Elmer West, whom she named as executors and trustees, in trust for the payment of her debts and funeral expenses, and a legacy of $100 to her half-brother, the remainder to be held, managed, and controlled by the trustees until the younger child shall have arrived at the age of 21 years, the property to be divided equally share and share alike between the husband and children. The provisions of the will for other contingencies are not here, vides; that no fees can be allowed to either material. At the time of her death the testatrix and her family were residents of California, where the husband still resides. The other trustee, West, is a resident of the state of Washington. Probate proceedings were had in both states. The will was probated in Spokane county, Wash., on November 11, 1914. The inventory was filed, notice to creditors was published, and a decree declaring the estate solvent, was entered on December 29, 1914. The administration of the trust estate then proceeded, West as resident executor and trustee managing the estate in Washington, Cornett as resident executor and trustee in California managing the estate there. The probate court in California allowed Cornett $1,445 executor's fees, which he claims to have deposited in bank to the credit of the estate. The time for filing claims expired December 29, 1915. On January 8, 1916, West made the inheritance tax report to the state tax commission, deducting the sum of $8,308.90 for executors' fees. The report was approved by the commission, and the inheritance tax based thereon, in the sum of $1,498.94, was paid. The estate in California, consisting of the family home, was sold, the net proceeds being $43,000. Of this, $22,500 was loaned at 7 per cent. interest, and the balance was deposited in bank at 4 per cent. interest. The Washington property consists of an apartment house of 32 apartments in Spokane called the "Altadena." It was built in 1908, and with the grounds cost $145,000 to $150,000. It is mortgaged for $30,000 at 6 per cent. interest. All other property in this state has been sold. West had managed the property in this state for Mrs. Cornett for many years, superintended the building of the Altadena, and had since managed it for $100 per month, up to the time of her death. as executors at any time nor as trustees until that time, and that, if West be allowed any sum for conducting and managing the Altadena apartments, it should only be such reasonable sum as others would do the work for, and West should account for it as a part of his fees as trustee when the trust is closed. He further claimed that at that time the fees should be divided equally between the trustees. The court found (we eliminate many intermingled legal conclusions) that the duties of the executors and trustees imposed by the will are such that they cannot be separated and continue during the full period of the trust; that the executors' fees are not due, but must remain in abeyance till the completion of the trust period, when the youngest child shall be 21 years old; that West's services in the management and collection of rents of the Altadena apartments are reasonably worth $125 per month; that West, as executor, had legal authority to borrow the $7,000, but not at this time to apply the money on his fees. The court further found that the only ground for lack of harmony between the trustees was the disagreement over the fees and that there are no grounds for the removal of West. Upon appropriate conclusions of law the proceedings for West's removal were dismissed, without costs or attorney's fees to either party, and a decree was entered adjudging that West is not entitled to any compensation other than for the entire period from the probate of the will to the time of distribution therein provided; that he is entitled to retain $125 per month to be deducted from such compensation as may hereafter be awarded by a court of competent jurisdiction when the final accounting and decree of distribution shall be made; that the borrowing of money by West be disapproved, and that he recast his accounts and refund the money to the estate, and also all sums retained by him in excess of $125 per month; that Cornett and West are executors under the will for the entire period from the date of its probate until final accounting and decree of distribution when the youngest son shall attain his majority, and are entitled to compensation as executors and not as trustees, but that such compensation cannot be definitely determined until one or the other die, be removed, resign, or the final accounting takes place. The court further decreed, in substance, that the compensation for the period from the probating of the will till the Probate Code of 1917 went into effect, should be such part of the statutory compensation provided by the prior law as that period bears to the whole trust period, and that compensation for the period from the taking effect of the 1917 Probate Code till final settlement shall be such as the court, pursuant to that Code, shall fix, or as subsequent laws may provide. Finally, the West, conceiving that the administration of the estate by the executors as such closed with the year for filing claims, and being advised that Cornett, because of his nonresidence, was disqualified to act as executor in this state, claimed that statutory executor's fees on the estate in this state, in the sum of $8,308.90, were then due, and that he alone was entitled to them. He borrowed $7,000 in the name of the estate, and with this and other money on hand paid himself that sum, notifying Cornett of the fact. He also retained $150 per month for his services in the management of the Altadena. West also claims that he will further be entitled to trustee's fees on the closing of the trust. Cornett, on the other hand, claims that the duties of both Cornett and West, as executors and trustees, are of the same character and inseparable throughout the whole trust period from the probate of the will; that these duties were, are, and will continue to be in substance those of trustees from the time of the proof of the will till the trust is finally closed and the estate distributed as the will pro-court decreed that nothing in the decree |