cross-examination of these two experts re quires nearly 100 pages in the statement of facts, and is abstracted in about three lines. The testimony of respondent's experts is abstracted in about 45 lines of typewriting, and their reports are not abstracted at all. This, however, is a very important case, and the writer of the opinion felt it necessary to examine with care the written summaries in full of the experts on both sides, and much of the testimony of the parties as reported. It is doubtful whether an abstract could have been made which would have been satisfactory unless it had been prepared in almost the same volume as the statement of facts and exhibits. After the passage of the statute amending the law regarding abstracts of record in 1915 (Laws 1915, p. 302, § 6), this court held, in Kranzusch v. Trustee Co., 93 Wash. 629, 161 Pac. 492, that insufficiency of the abstract of the evidence or of its index is ground not for the dismissal of the appeal, but only for a motion to amend the abstract upon terms. The motion is therefore denied. [2, 3] Respondent moves also to strike the statement of facts and affirm the judgment, for the reason that no exceptions were taken to the findings of the court upon which the judgment was based, and the question presented by assignments of error relates only to questions of fact. This being an equity case, no findings of fact and conclusions of law were necessary, and it was a matter of discretion with the trial court whether he made any. He made none, and the memorandum decision cannot be considered as a finding of act. This motion is also denied. [4] While this is a rate case, it must be understood that the courts cannot make rates. Their power is limited to the determination of whether or not rates attempted to be exacted in a given case are reasonable rates. The case is analogous to an inquiry before the Interstate Commerce Commission, under the original act creating that body, whereby it was given no power to fix rates. Upon specific complaint it could determine whether a particular rate or schedule of rates was reasonable, and the courts could only pass upon the validity of the methods used by the Interstate Commerce Commission and the results reached. [5] 1. The first complaint is that the court erred in making its judgment include delivery of the logs. Under the terms of the decree allowing a foreclosure of the liens and judgment for 75 cents per thousand feet board measure, to include "all services performed by the plaintiff in driving, booming, handling, and delivering said logs," it is obvious that the word "delivering" was meant only as delivering at appellant's boom, not delivering to some other point to be designated by respondent. At any rate such error, if error it was, may be obviated by modifying the decree to include the words "at [6] 2. The second claim is that the court erred in refusing plaintiff's request to make and enter findings of fact and conclusions of law in the case, and in refusing to separate ly find or state the rates allowed by the court for booming and for driving. It was not error to refuse to make findings of fact and conclusions of law. It is well settled in this state that, in an equity case, this is a matter of discretion with the trial court. Nor was there any necessity for the court to separately find and state the rates allowed by the court for booming and for driving. While this is a rate case, and may be used as a precedent in the future by either party, it is not a case where the rates can be firmly established for the future. The appellant in its complaint aggregated its total charges and aggregated them in its liens, alleging in the complaint that the total reasonable charges were $1.05 for both the driving and the booming operations. The court may have aggregated them merely for brevity, and it may have considered that the 30-cent rate was admitted by the affirmative pleadings of respondent and conceded by appellant for booming, and that the 45-cent rate was a reasonable rate for the driving. That not to exceed 30 cents for the booming was admitted by respondent and conceded by appellant, and therefore uncontroyertibly established as the maximum which could be charged for booming, is seen from preceding statements herein. But all of the evidence in the case was before the court, and whether or not the court permitted respondent to amend its pleading so as to allege that not to exceed 20 cents per thousand feet board measure was a reasonable rate for booming, since there is evidence in the case tending to justify that contention, the court may have found that 20 or 25 cents per thousand feet board measure was a reasonable rate for booming and the remainder for driving, considering the pleading amended to conform to the evidence. Its uncertainty however is not open to attack, because the combined rate or total, if segregated into portions, is in any event within the evidence and within the pleadings. 3. The third assignment of error is the one on which appellant mainly relies. The question discussed is whether the rate of 65 cents alleged and claimed for driving and 30 cents conceded and claimed for booming should have been sustained. It is evident that the court relied principally upon the evidence of the experts for respondent, and while the reports of appellant's experts are elaborate and go very largely into minutest details, there is considerable indication that appellant's experts carry inflated values into their methods of valuation, and exorbitant expenses and charges in their maintenance, reproducing, and operating charges. Some, in fact, are apparently duplicated. The very admirable report of Mr. Gray, showing his methods of cise, and simple in its premises, methods, and conclusions that any one, whether an expert or not, can quickly understand and appreciate them. He also displayed the utmost fairness toward the appellant and gave it considerable advantage in his premises and deductions, such as, that it was operating an expensive plant for a limited term of activities until the sources of business would be exhausted, and was not such a permanent plant as a railroad or a street railway. His estimates and his testimony throughout show the fairness of this consideration toward the appellant, and yet his conclusions would justify a finding of a materially lower rate at the present time than was apparently at least made by the court, for booming, and a slightly lower rate for driving. A complete analysis of the methods and figures of the experts would be interesting or important to no one but the parties. We have examined them and the trial court heard and saw the witnesses and found a total rate which seems from the evidence to be a very reasonable rate. We may say in passing that, under the evidence, a driving rate of 45 cents per thousand feet board measure and 30 cents per thousand feet board measure for booming and rafting the logs, if desirable to separate the rates, seem to be amply sufficient and reasonable rates. The appellant, however, never separated its driving and booming operations. It did, as shown by the manner of paying its superintendent, charge one-fourth of the salary of its superintendent per month to driv ing operations and three-fourths to booming. This was substantially the method adopted as approximately proper by expert Gray. It is shown also that from 1902 to 1908 a joint rate of 60 cents for driving, booming, and towing was in effect as fixed by appellant, and from February, 1909, to May, 1910, a driving rate of 35 cents and a booming rate of 40 cents. It is also shown incidentally that much business on the stream in question was lost the preceding year because of the rates charged by appellant; loggers operating on the stream not being willing to meet the rates. On other similar streams in that vicinity, where the conditions are much the same or even more difficult and the driving longer, lower rates are charged than were here allowed by the court. [7] Much is said by counsel for appellant, and was said by their expert, as to the proper rating base. Appellant contends that the fair value of the depreciated value of the property devoted by the boom company to its booming and driving operations as adopted by respondent's expert was not a proper basis upon which to figure its rates, and contends that the cost of reproduction now was to be taken as the rating base, and that it was entitled to charge rates that would produce a fair return upon all its property at the cost if purchased new now. There is no statute adopting the basis of valuation of such public utility. We are of the opinion that the proper rating base of any such public utility is the present fair cash value, which is its reproduction cost minus its depreciation, if any. Knoxville v. Water Co., 212 U. S. 1, 29 Sup. Ct. 148, 53 L. Ed. 371; Minnesota Rate Cases, 230 U. S. 352, 33 Sup. Ct. 729, 57 L. Ed. 1511, 48 L. R. A. (N. S.) 1151, Ann. Cas. 1916A, 18; Pioneer Tel. & Tel. Co. v. Westenhaver, 29 Okl. 429, 118 Pac. 354, 38 L. R. A. (N. S.) 209. Finding nothing in the record which would justify reversal, the decrees are affirmed. ELLIS, C. J., and CHADWICK, MOUNT, and MORRIS, JJ., concur. (100 Wash. 413) LANHAM v. LONGMIRE et al. (No. 14529.) (Supreme Court of Washington. Feb. 26, 1918.) 1. EXECUTION 194(3) — LEVY - CLAIMS BY THIRD PERSONS. While a bill of sale from a third person in the hands of one claiming property levied on under execution is prima facie evidence of title, it does not conclude the execution creditor from showing that the title was in fact in the execution debtor at the time of the levy. 2. EXECUTION 181 - LEVY THIRD PERSONS-TITLE. CLAIMS BY the time of a levy would not be defeated by reaA third person showing title to property at son of having sold the property under warranty between the date of levy and trial of his claim, 3. SALES 199-TRANSFER OF TITLE-IN TENTION. When title passes in a sale of personalty is a question of intention, even though where quality, quantity, or price is to be determined a presumption exists that title does not pass until its determination. 4. SALES 218%-DELIVERY-TITLE. Where an automobile was delivered, evidence held to show that title passed although the price had not been agreed on. Department 2. Appeal from Superior Court, Pierce County; Ernest M. Card, Judge. Claim and delivery by J. D. Lanham against Robert Longmire and others to obtain property levied on while in the hands of a judgment debtor. Judgment for defendants, and plaintiff appeals. Affirmed. Thomas J. Wayne, of Tacoma, for appellant. Ryan & Desmond, of Seattle, for respondents. CHADWICK, J. On the 20th day of May, 1914, respondent Louisa C. Pletsch, as administratrix, recovered a judgment against one P. W. Smyley. In March, 1917, Smyley was engaged in the automobile business at Tacoma, Wash. Appellant owned an Overland automobile, which was turned over to Smyley on the 25th day of March. On the 28th day of March, the car was seized by the sheriff on an execution as the property of Smyley. On March 31st appellant began this action, and made affidavit (Rem. Code, § 573) For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes be done, as to determine quality, quantity, or price, affords a presumption that title is not intended to pass until its performance, the presumption is not conclusive. 35 Cyc. 282. A delivery to the buyer is strong evidence of an intention to pass the title at once. Id. 286. that he was the owner of the car and enti- | vendee. It is a question of intention; and, tled to its immediate possession. A redeliv- | although the fact that something remains to ery bond was filed, and the car returned to appellant. On the 31st day of March appellant and Smyley consummated a trade, Smyley allowing a credit of $500 on a new Chandler car, which he turned over to appellant on that day. He thereafter used the Overland car as his own until it was sold to third parties. The court sitting without a jury held in favor of respondents, and appellant has appealed. It is assigned as error that the court held that it was incumbent upon appellant to prove title at the time of trial, whereas the law is that he may recover if he proves title at the time of the levy. [1] Appellant offered a bill of sale showing final payment by him to a third party for the Overland car, and this he contends makes proof of ownership that cannot be overcome by subsequent events. It may be granted that a deraignment of title from a third party makes a prima facie case, but it does not conclude an execution creditor from showing that the title was in fact in the execution debtor at the time of the levy. "However conclusive the terms of a written instrument may be between the parties thereto, they are not so conclusive between either of those parties and a third person in litigation where the terms of the written contract are only collaterally in issue." Ransom v. Wickstrom & Co., 84 Wash. 419, 146 Pac. 1041, L. R. A. 1916A, 588. Counsel differ as to the meaning of our statute (Rem. Code, § 573). The one insists that it means that the title, or right of possession, shall be proved as of the time of the levy; and the other, that it means that such proofs shall be as of the time of the trial. Respondents' reasoning is that, whereas under our claim and delivery statute the sheriff does not try the title, or right of possession, as at common law or under some statutes, the engagement to make good his title means to make it good in a court of competent jurisdiction, and at a time when the bond may be exonerated or enforced by a proper judgment. "This question as to the passing of title is fraught with difficulties, and not always easy of solution. An examination of the multitude of cases bearing upon this subject, with their infinite variety of facts, and at least apparent conflict of law, ofttimes tends to confuse rather than to enlighten the mind of the inquirer. It is best, therefore, to consider always, in cases of this kind, the general principles of the law, and then apply them as best we may to the facts of the case in hand." Sherwood v. Walker, 66 Mich. 568, 33 N. W. 919, 11 Am. St. Rep. 531. Now in the case at bar, the property had been voluntarily delivered to Smyley. It was in his possession at the time the levy was made. This possession was not interrupted by the redelivery, but continued until the price, or an allowance for the old car, had been agreed upon. Appellant never had possession of the car, nor has he ever had any control over it, since he delivered it to Smyley. He admits he filed the affidavit in claim and delivery at the instance and request of Smyley, who is paying the costs of this action. Taking the whole record with all its legitimate inferences, we are convinced that as between appellant and Smyley title passed on or before the 28th day of March, and that appellant has failed to make good his title even as of the day of the levy. This case rests more in fact than in law, and we are convinced that no jury would ever return a verdict contrary to the findings of the trial judge. Affirmed. ELLIS, C. J., and MOUNT and HOLCOMB, JJ., concur. (100 Wash. 485) STATE ex rel. GRAYS HARBOR LOGGING CO. et al. v. SUPERIOR COURT FOR GRAYS HARBOR COUNTY et al. (No. 14356.) [2] It may be granted that a claimant in an ordinary case may sustain himself by showing title, or a right of possession, at the time of the levy, for we can readily conceive that he may have sold his property to a third (Supreme person, pending a trial, under a warranty of title. If this were made to appear, a de fendant in claim and delivery could not set up the sale to defeat the right of the claimant. [3, 4] But whatever the rule may be as to the time when the title, or right of possession, is to be established, we are satisfied that in so far as appellant is concerned Smyley had title at the time of levy. The books contain no hard and fast rule as to the time when title will pass as between vendor and 1. EMINENT DOMAIN 264 METHOD TO REVIEW RIGHT TO TAKE PROPERTY-CERTIORARI OR WRIT OF REVIEW. The only method to review the question of the right to take property under the power of eminent domain-that is, the question of use view. and necessity-is by certiorari or writ of re2. EMINENT DOMAIN 264-DECREE of ApPROPRIATION-METHOD TO REVIEW-CERTIORARI OR WRIT OF REVIEW. propriation of private property under power The only method to review a decree of apof eminent domain, if any, is by certiorari or VIEW. On error from a judgment awarding damages in a condemnation proceeding, no question can be raised as to the right to condemnation, and the review will be confined solely to the propriety and justness of the amount of dam ages. 4. EMINENT DOMAIN 264-WRIT OF REVIEW AS TO Order of NECESSITY-TIME FOR APPLICATION. Writ of review to review the judgment or order of necessity entered in an eminent domain case must be applied for within 30 days from date of entry of judgment. 5. EMINENT DOMAIN 198 (1) review, but the court cannot again review the which resulted in an order of condemnation adjudication of necessity of appropriation, being entered in the cause on October 15, which is also reviewable by certiorari or re1914. view, nor review that question at all if it was On October 22, 1914, a petition for a allowed to become final without review. writ of review to review the order of con3. EMINENT DOMAIN 262(1) ERROR demnation was presented to this court by the FROM JUDGMENT AWARDING DAMAGES IN respondents Grays Harbor Logging Company CONDEMNATION PROCEEDING-SCOPE OF REand Boeing, which came on regularly to be heard upon October 19, 1914. This court made and entered its decision which is reported in 82 Wash. 503, 144 Pac. 722. The decision there affirmed the decision of the superior court and upheld the order of condemnation or adjudication of the use and necessity for taking the property. A petition for rehearing being filed and denied, the judgment of this court was entered in accordance with its decision on. March 1, 1915. On April 8, 1915, a petition in that cause for a writ of error to the Supreme Court of the United States was filed in this court, and on that date an order directing the issuance of a writ of error was entered. The cause proceeded to hearing before the Supreme Court of the United States, and upon March 6, 1917, that court made and entered its decision dismissing the cause for want of jurisdiction upon the ground that the order of necessity and public use to review which the writ of error had been issued was not a final judgment, but should be construed as being subject to the conditions that the proper compensation to be paid for the taking of the property described in the petition must be first ascertained and paid. In the opinion it was said: JUDGMENT OF NECESSITY TO CONDEMN-FINALITY. Without adjudication and judgment of necessity to condemn, no subsequent proceedings can be had in the condemnation proceedings, and judgment of necessity is final, subject only to review as provided by law. 6. EMINENT DOMAIN 246(2)—CONDEMNATION PROCEEDINGS-NATURE OF DECREE OF BINDING FORCE ON AP APPROPRIATION A decree of appropriation in condemnation proceedings is merely a collective judgment, incorporating in it the decree or order of necessity and judgment on the award of the jury, and vests title in an appropriator on condition that he pay the owner or into court for his benefit the money awarded, and under it the appropriator can waive his right to appropriate and take the land, abandon it, and refuse to pay the money, in which case the owner of the land retains it and the previous orders and judgments are null. Department 2. Application for writ of review and stay of proceedings by the State of Washington, on the relation of Grays Harbor Logging Company and W. R. Boeing, against the Superior Court for Grays Harbor County and W. A. Reynolds, Presiding Judge thereof, and Coats-Fordney Logging Company. Writ and stay denied. Donworth & Todd, of Seattle, W. H. Abel, of Montesano, A. M. Abel, of Aberdeen, and R. E. Campbell, of Seattle, for relators. Bridges & Bruener, of Aberdeen, for respondents. "When the litigation in the state courts is brought to a conclusion, the case may be brought here upon the federal questions already raised as well as any that may be raised the proceedings still to be taken, presumably hereafter; for although the state courts, in will feel themselves bound by the decision heretofore made by the Supreme Court (82 Wash. 503), as laying down the law of the case, this court will not be thus bound." Grays Harbor Logging Co. v. Coats-Fordney Logging Co., 243 U. S. 251, 37 Sup. Ct. 295, 61 L. Ed. 702. Thereafter upon July 2, 1917, the cause having been remitted to the superior court of Grays Harbor county, a trial was had before the court and jury upon the question of the damages to be awarded and paid the respondents, the relators here, for the taking and damaging of their lands as described in the petition for condemnation. The jury awarded damages, and judgment was entered thereon in favor of relators in the sum of $2,500 as the value of the lands taken and damages to the remainder. On August 21, 1917, the court made and entered its decree of appropriation in the cause. The relators here have appealed from the judgment of award of the lower court, and have also brought this proceeding for a writ of review, frankly stating that they are seeking, and believe they are entitled to, a review of all three of the judgments heretofore entered in the cause, in order to obtain a final determiIn the original cause proceedings were had nation so that they can have the question of HOLCOMB, J. This is an original application for a writ of review and a stay of proceedings pending the final disposition of a condemnation action instituted under the provisions of the private way of necessity act (Laws 1913, p. 412, c. 133; Rem. Code, § 5857-1 et seq.) in the superior court of Grays Harbor county, wherein the Coats-Fordney Logging Company is the petitioner and the Grays Harbor Logging Company and W. E. Boeing are the respondents. The writ is argued for and the relief demanded on the ground that relators have no adequate remedy by appeal. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the constitutionality of the private way of necessity act passed upon by the Supreme Court of the United States upon a final judgment. view will be confined solely to the propriety and justness of the amount of damages. Fruitland Irrigation Co. v. Smith, 54 Wash. 185, 102 Pac. 1031; North Coast R. R. Co. v. Gentry, supra; Calispel Diking Dist. v. Mc Leish, 63 Wash. 331, 115 Pac. 508; Seattle P. A. & L. C. R. v. Land, 81 Wash. 206, 142 Pac. 680; State ex rel. Davis v. Superior Court, supra. The only question then which relators may present to this court upon appeal from the second judgment is that of the adequacy of the damages awarded, and for this reason they contend that, having no appeal from the last judgment, the decree of appropriation have the right to a writ of review therefrom which would review the original order or judgment of necessity. The act under which the condemnation proceeding was instituted provides that the procedure shall be the same as that provided for the condemnation of private property by railroad companies. Rem. Code, § 5857-2. The method of procedure in condemnation actions by railroad companies is found in section 921 et seq., Rem. Code. In considering the provisions of the last act this court, in the case of Chicago, M. & P. S. R. Co. v. Slosser, 82 Wash. 467, 144 Pac. 706, said: "The statute referred to seemingly contem-vesting the title in the appropriator, they plates the entry, during the course of the proceedings, of three separate and distinct judg ments: First (by Rem. & Bal. Code, § 925; P. C. 171, § 176), a judgment finding that the contemplated use for which the property sought to be appropriated is really a public use, and the necessity for its taking for that use; second (by Id. § 926; P. C. 171, § 177), a judg-judgment or order of necessity entered in an ment fixing the amount of the award that is eminent domain case must be applied for made to the owner of the property appropriat- within 30 days from the date of the entry of ed because of the appropriation, both for the the judgment. State ex rel. Lowary v. Suproperty actually taken and for other property damaged thereby; and, third (by Id. § 927; P. perior Court, 41 Wash. 450, 83 Pac. 726; C. 171, 178), * * * a judgment or de- State ex rel. Alexander v. Superior Court, cree of appropriation of the land, real estate, 42 Wash. 684, 85 Pac. 673; State ex rel. Tumpremises, right of way, or other property water P., etc., Co. v. Superior Court, 56 sought to be appropriated, thereby vesting the legal title to the same in the corporation seek- Wash. 287, 105 Pac. 815. ing to appropriate such land, real estate, premises, right of way, or other property for corporate purposes.' An appeal is granted by the statute only from the second of the judgments above referred to, namely, that awarding the damages. Rem. Code, § 931; Chicago, M. & P. S. R. Co. v. Slosser, supra; North Coast R. Co. v. Gentry, 58 Wash. 80, 107 Pac. 1059. [4] We have uniformly held that the writ of review for the purpose of reviewing the [5] The judgment of necessity was entered herein October 15, 1914, and within 30 days thereafter these same relators petitioned this court for a writ of review to review the identical judgment of necessity which it now seeks to have the court again review. At that time this court fully reviewed every question involved in the present application, including the constitutional question, and [1] The only method of reviewing the ques-upheld the judgment of the lower court and tion of the right to take property under the power of eminent domain-that is, the question of use and necessity-is by certiorari or writ of review. Seattle M. R. Co. v. B. B. & E. R. Co., 29 Wash. 491, 69 Pac. 1107, 92 Am. St. Rep. 907; Whatcom County v. Yellowkanim, 48 Wash, 90, 92 Pac. 892; State ex rel. Pagett v. Superior Court, 46 Wash. 35, 89 Pac. 178; State ex rel. Alexander v. Superior Court, 42 Wash. 684, 85 Pac. 673; State ex rel. Smith v. Superior Court, 30 Wash. 219, 70 Pac. 484. [2] The only method of reviewing the decree of appropriation, the last of the three judgments above mentioned, if at all, is by certiorari or review. Chicago, M. & P. S. R. Co. v. Slosser, supra; Olympia L. & P. Co. v. Tumwater P. Co., 55 Wash. 392, 104 Pac. 778; State ex rel. Davis v. Superior Court, 82 Wash. 31, 143 Pac. 168. Even then we cannot again review the adjudication of necessity, nor review that question at all if it was allowed to become final without review thereof. the constitutionality of the private way of As [6] It seems to us that the Supreme Court of the United States overlooked our decisions holding that the judginent or order of necessity under our statutes is a final judgment. And it has always been held by that court that constructions of local statutes and of judicial procedure by the court of last resort of a state will be followed by that court. The decree of appropriation is nothing more than a collective judgment, incorporating in it the decree or order of necessity and judgment on the award of the jury. The decree of ap[3] We have held that, upon an error from propriation vests title in an appropriator a judgment awarding damages in a condem-upon the condition that the appropriator pays nation proceeding, no question can be raised to the owner or into court for his benefit the |