finally determined that his own fault terminated the lease.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 1251; Dec. Dig. 2. LANDLORD AND TENANT POSITS RIGHT TO RETAIN.

720.]
184-RENT-DE-

Where the assignee of a lease defaulted in payment of the rent for two months and abandoned the premises, the lessors could elect to treat the lease as terminated, without waiving their right to retain a deposit which the lease provided should be retained as liquidated damages if the conditions of the lease were not fully performed by the lessees.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 743-750; Dec. Dig. 184.]

3. LANDLORD AND TENANT

94 TERMINATION OF LEASE-NECESSITY OF NOTICE. Where, after lessors of an apartment house gave notice to the room tenants not to pay rent to the lessees, who were in default in the payment of rent to the lessors, an assignee of the lease notified the lessors that, because of such notice to the subtenants and the further fact that the lessors had taken possession of part of the leased premises, he considered himself no longer liable for rent and had abandoned the premises, the statutory notice was not required

to terminate the lease.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 297, 316-320, 361, 362; Dec. Dig. 94.]

4. LANDLORD AND TENANT

POSITS RIGHT TO RETAIN.

184-RENT-DE

Where a lease of an apartment house for four years at a monthly rental of $370, which provided that if the conditions of the lease were not fully performed, city warrants deposited with the lessors might be retained on account of liquidated damages, had nearly three years to run when an assignee of the lease defaulted in the payment of rent, the liquidated damages were not unreasonable, and title to the warrants vested in the lessors.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 743-750; Dec. Dig. 184.]

5. REPLEVIN

8-NECESSITY OF RECOVERING ON STRENGTH OF PLAINTIFF'S TITLE.

In replevin plaintiff must recover upon the strength of his own title and right of possession,

and not on defendant's lack thereof.

[Ed. Note.-For other cases, see Replevin, Cent. Dig. §§ 45-68; Dec. Dig. 6. REPLEVIN

TLE.

8.]

63-PLEADING SUPERIOR TI

Under Rem. & Bal. Code, § 264, providing that an answer must contain a general or specific denial of each material allegation of the complaint or of any knowledge or information sufficient to form a belief and a statement of any new matter constituting a defense or counterclaim, whether or not the defendants in replevin could plead a money set-off or counterclaim, they could plead a superior title and right of possession in themselves or a lack of title and right of possession in plaintiff by an affirmative

answer.

to.

cross

HOLCOMB, J. Appellant sued to recover the possession of certain city warrants, or their value., Respondents denied that appellant was the owner, or entitled to the possession, of the warrants, or their value. As a further and first affirmative defense respondents pleaded a former suit between respondents, as plaintiffs, and appellant and G. S. Hamman and Matilda M. Hamman, as defendants, in the superior court of King county, numbered 71528, setting forth all the records and files therein as a defense hereRespondents further pleaded a complaint to appellant's cause of action, alleging, in substance, their right to hold the warrants under and by virtue of the terms of a lease. All the material allegations of respondents' first affirmative answer and of their cross-complaint were denied by appellant's reply, and as an affirmative defense thereto, he also pleaded the records and files in case No. 71528. There was a lease from respondents to G. S. Hamman and Matilda M. Hamman, executed July 10, 1908, for a period of four years, of a certain apartment house in Seattle, with a stipulated monthly rental of $370, payable in advance on the 10th day of each and every month during the term of the lease. The lease contained this stipulation:

"It is further covenanted and agreed that the lessees, as security guaranteeing the performance of this lease, will pay to said lessors the sum of fifteen hundred ($1,500.00) dollars, either in gold coin or collateral for the last-mentioned amount acceptable to the said lessors, said money or collateral to be held by lessors until the expiration of this lease, when, if all the conditions of said lease have been fully performed on the part of the lessees said money or collateral is to be returned; otherwise same is to be retained by the lessors on account of liquidated damages."

It is conceded that $1,500 of city warrants were deposited by the Hammans, and received and accepted by respondents, as satisfying the above requirement of the lease. On October 11, 1909, the Hammans, with the written consent of respondents, assigned the lease to appellant. The Hammans, however, claimed to retain the ownership of the warrants, leaving them in the possession of respondents as collateral for the purposes for which they were delivered. In their written consent to the assignment of the lease, it was expressly stated that respondents"did not release the Hammans from any of the obligations or liabilities that have accrued, or may hereafter accrue, under the terms of the lease."

[Ed. Note.-For other cases. see Replevin, On October 16, 1909, the Hammans sold Cent. Dig. §§ 225-238; Dec. Dig. 63.] the warrants to appellant, the assignee of On November 20, 1909, respond

Department 2. Appeal from Superior the lease. Court, King County; John R. Mitchell, Judge.ents notified the room tenants of the apartAction by Mark Munson against Pauline ment building that the lessees, the Hammans, P. Baldwin and another. Judgment for defendants, and plaintiff appeals. Affirmed. Roney & Loveless, of Seattle, for appellant. Wm. Hickman Moore, of Seattle, for respondents.

and appellant, had failed to pay two advance monthly payments of rent, and that any rental they, the room tenants, should, after such notice, pay to the lessees would be at their risk. On December 1, 1909, appellant

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

in above case, and the stipulation of the lease in that case was almost identical with the stipulation therefor in the present case. In the above-cited case it was stated by the late Judge Crow:

tuted an unquestioned breach of the contract. and payment of the stipulated liquidated damwhich subjected her to a termination of the lease ages. When her breach occurred, appellants were entitled to give the statutory notice to terminate the tenancy in the event of her continued default, and thereafter retain the deposit in satisfaction of their liquidated damages. They were not required to permit a continuance of the default, and thus increase their damages to such sufficient to protect them. The contract had no an extent that the liquidated sum would be insuch purpose in view. It is manifest that the parties agreed upon liquidated damages because their exact measurement could not be readily made. The sum agreed upon is not unreasonable, in view of the value and importance of the entire lease."

gave respondents a counter notice, to the effect that, by reason of their notice to subtenants, and on account of the further fact that respondents had taken possession of a portion of the leased premises and leased the same to other parties, such acts consti"It was respondent's duty to make the stipututing an interference with his beneficial en-lated monthly payments. Her failure constijoyment of the premises, he considered himself no longer liable for any further rent therefor, and had abandoned the premises. Thereupon respondents, on January 11, 1910, instituted the action known as cause No. 71528, against the Hammans and appellant, to recover the advance rental of $370 for each of the months of October and November, 1909, in two separate causes of action. The defendants therein appeared separately and answered the complaint. Munson, the appellant here, pleaded affirmatively an evic tion, on the same grounds as stated in the notice to respondents of December 1, 1909. Respondents replied, denying eviction, admit[3, 4] All the foregoing observations are exting their notice to subtenants on November actly pertinent here. Here no statutory no20, 1909, and alleging abandonment by appel- tice was required, because appellant had lant on December 1, 1909. The cause was tried to the court on November 25, 1910, the tire lease had nearly three years to run, at given notice of abandonment. Here the encourt found for the plaintiffs and against the a rental of $370 per month. Here the liqappellant and his codefendants on the is-uidated damages were $1,500, in the form of

city warrants. It was not unreasonable as a liquidation of the damages. Upon the deof the lease, the title to the deposit for liqtermination of appellant's default and breach uidated damages vested at once in the re

spondents, in whatever form, whether money or bonds or warrants.

sues of law and fact, and judgment was accordingly entered for the rent due for October and November, and a further sum of $75.66 collected by appellant "beyond the 20th day of November, 1909." No appeal was taken, and that judgment became final and conclusive. Execution on the judgment was had, and certain personal property of ap[5] Thenceforth appellant had no title or pellant seized, sold, and applied in partial satisfaction of the judgment, leaving a defi- right of possession whatsoever to the warciency of $268.85. At that time the warrants rants, and to recover in his action of replevin controversy were still in possession of re-in, it is most assuredly necessary that he spondent Ewing, who refused to return them. recover upon the strength of his own title The value of the warrants was $1,500, plus and right of possession, and not on the re24 Am. & Eng. accrued interest from October 16, 1909. Re- spondents' lack thereof. Ency. Law, 483. spondents took and retained possession of the leased premises on and after December 1, 1909.

plevin, they certainly could plead superior title and right of possession in themselves, or show lack of title and right of possession in appellant to specific personal property by affirmative answer, and should do so. 1 Rem. & Bal. Code, § 264; 18 Ency. Pl. & Pr. 551. That was the effect of respondents' affirmative answer and their cross-complaint.

[6] Appellant devotes considerable argument to the question of whether respondents [1, 2] To our minds no extended discus- can plead a counterclaim to a suit in resion of the facts or the law of the case is plevin. That question is immaterial here, necessary. The judgment in cause No. 71528 for, whether or not they could plead a money became the law of the case between the par-set-off or counterclaim to an action in reties, and finally determined that appellant's fault terminated the lease. He having defaulted in payment of rent for two months and abandoned the premises, the respondents could justly and lawfully elect to treat the lease as terminated, without waiving their right to retain the liquidated damages expressly provided for in the lease. Barrett v. Monro, 69 Wash. 229, 124 Pac. 369, 40 L. R. A. (N. S.) 763. The provision for liquidated damages, to be first deposited by the lessee with the lessor, retained, and finally held absolutely to compensate in full for any breach of the lease by the lessor, is upheld

The facts fully support the affirmative allegations of respondents, and sustain the judgment. Affirmed.

MORRIS, C. J., and MAIN, PARKER, and FULLERTON, JJ., concur.

RUSSELL v. UNION MACHINERY & SUP-ly well established. There being no cross

B. E. Padgett, of Everett, for appellant. | principal, and, agreeing with the lower court Cooley & Horan and R. Mulvihill, all of Everett, for respondent.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

5. WATERS AND WATER COURSES 133-when the action was commenced, plaintiffs were PRESCRIPTIVE RIGHTS.

Albert I. Kulzer, of Chewelah, and Carey & Johnson, of Colville, for appellants. Stull, Wentz & Bailey, of Colville, for respondent.

PARKER, J. The principal object sought by the plaintiffs in this action is to have the defendant enjoined from diverting the waters of Grouse creek to his nonriparian homestead land. They also seek apportionment of the waters of Grouse creek between them

selves and the defendant for use upon the riparian land of each. The trial court rendered its decree adjudging the defendant entitled absolutely, as against the plaintiffs, to 11⁄2 cubic feet of water per second of time of the water of Grouse creek for use upon his nonriparian land, upon the ground that he had acquired such right by prescription, adjudging the plaintiff's entitled to one-eightieth of one cubic foot of water per second of time for domestic purposes, subject to defendant's superior right to 12 cubic feet thereof for use upon his nonriparian land, and apportioning the remainder of the water of Grouse creek to plaintiffs and defendant equally for use upon the riparian land of each. From this disposition of the cause, the plaintiffs have appealed.

erly to and over appellants' land, where it empties into a small lake upon which their land borders. It also flows over the intervening southeast quarter of the northeast quarter of section 1, which we have noticed, and which land is also riparian thereto, though apparently unoccupied. These lands lie in an arid region, and require irrigation to render them productive.

In the year 1889 respondent went upon the railway land in section 1, which he thereafter acquired in 1912, and constructed a dam in the creek and a ditch leading therefrom by which he diverted a portion of the water of the creek onto his homestead land This was for irrigation and domestic use. the inception of his present claim of the prescriptive right to water of Grouse creek. He continued to divert the water to his homestead for a period considerably more than ten years before he acquired title to his land in section 1.

The diversion and use of the water thus commenced was made under claim of right, was open, notorious, and continuous, without interference by any one until about the year 1912, when appellants several times removed some of the obstructions to the natural flow of the water at respondent's intake, which obstructions were replaced by respondent. According to respondent's own testimony, he diverted from the creek about one-third of the water flowing therein, and the evidence does not indicate that he had at any time diverted any greater proportion of the entire flow of the creek until the past few years, when in the dry seasons he diverted all of the water flowing in the creek, though the water so diverted in later years was not all used upon his homestead; some of it being used on his land in section 1, which is riparian to the creek. The trial court found, in effect, that the defendant has continually diverted 1% cubic feet per second of the water of Grouse creek since 1889, and used the same upon his nonriparian homestead, and has thereby acquired by prescription the right to use that amount of water upon his nonriparian homestead, re

Appellants and their grantor, the Northern Pacific Railway Company, have been since prior to the year 1889 the owners of lot 1, being the fractional northeast quarter of the northeast quarter of section 1 in township 30 north, range 40 east, in Stevens county. The defendant since 1889 has been the owner of the northeast quarter of section 12 in the same township, having acquired the same under the homestead laws of the United States. The defendant has since the year 1912 been the owner of the southeast quarter of section 1, having acquired the same by mesne conveyances from the Northern Pacific Railway Company; that company having been the owner thereof since prior to 1889. Having in mind the system of government survey of public lands, it will be noticed that the east line of all these tracts is also the east line of the township, and that they are in order from north to south as follows: Ap-gardless of the present diminished amount of pellants' railway land; respondent's railway land; respondent's homestead. The only intervening land is the southeast quarter of the northeast quarter of section 1. Otherwise all the lands here involved would be contiguous. Grouse creek is a small, unnav-ent and prospective irrigation and domestic igable, unmeandered stream, with a present maximum flow of water therein along the portion thereof here involved of approximately 10 cubic feet per second, which is diminished during the dry season of the year to not exceeding 11⁄2 cubic feet of water per second. This creek flows from the east upon respondent's railway land in section 1 at a point some 200 yards north of the northeast corner of his homestead in section 12. It continues to flow west approximately parallel with the north line of his homestead some 200 yards, where it turns and flows north

water flowing in the creek in the dry seasons. During the years when respondent claims to have acquired his prescriptive right up until about 1912 there flowed in the creek upon appellants' land sufficient water for all pres

use required thereon. Two-thirds of the water of the creek must then have reached appellants' land, except as possibly diminished by some slight loss in seepage and evaporation, since none of the water of the creek was then used on the land between the point of diversion and appellants' land. The loss of water in recent years to appellants' land was manifestly caused by the diminution of the flow of the water in this portion of the creek, through natural causes or from the increased use of the water by upper riparian owners and the continued diversion by the