Aug. 1893.] Dissenting Opinion - HOYT, J. would apply with even greater force than before. All this, however, is to be inferred, if at all, from two or three circumstances, and against the direct testimony of witnesses, and when weighed in the balance against the evidence which the bank furnishes through its books, and its former president and other officers, that it always treated the note as a mere collateral, it amounts to nothing. And so we conclude, that, as when the plaintiff rested, the non-suit should have been granted, and the subsequent proceedings not having in any way deprived the appellants of the right to that disposition of the case, the decision should now be that the judgment be reversed, and the cause remanded for the entry of a non-suit. So ordered. DUNBAR, C. J., and ANDERS and SCOTT, JJ., concur. HOYT, J. (dissenting).—I am unable to agree with the conclusion to which the majority of the court have arrived in this case. In my opinion the testimony and the cir cumstances surrounding the transaction are consistent with but one view as to the purpose for which the note in controversy was given, and that was the securing to the respondent the repayment of the sum of five thousand dollars to be advanced by it as the cash payment to Mackintosh on the purchase of his abstract. Such having been the purpose for which the note was executed, it seems clear that it was never received by said Mackintosh as security for such cash payment in such a manner that he became the owner of the note. His holding of the note was in my opinion only a temporary expedient pending the completion of the organization of the respondent, for whose use the note was originally made, and that it was the understanding of all the parties interested in the note that it should pass to the respondent as security for the five thousand dollars which was to be paid to Mackintosh as soon as it was so organ [ 7 Wash. That such was the ized that it could furnish the money. nature of the transaction is, perhaps, not shown by any direct positive proof to that effect, but the circumstances taken separately and together are so consistent with this construction of the transaction, and so inconsistent with any other construction, that my mind is satisfied. There is no reason whatever shown why this note was drawn for the time that it was which is consistent with any other theory, nor is there any other theory which will account for the fact that it was made payable at the First National Bank. If the understanding at the time it was executed was that it was to go to Mackintosh as his property, there would have been every reason why it should have been made payable at his banking house, and none whatever for its being made payable at the banking house of the respondent. Beside, the entry in the books of Mackintosh, and the memorandum made by him on the back of the note, are inconsistent with the theory that he had taken the note in the ordinary course of business, and as his property, but are entirely consistent with the theory above suggested that it was left with him until the respondent was in a condition to advance the money and receive the note as security therefor, in accordance with the original understanding between George W. Harris and the other makers of the note. If the above correctly interprets the original transaction, it must follow that when the note came into the possession of the respondent it became its property for the purpose of securing to it the payment of the amount therein named by the makers, and, if this was so, there is only one reasonable interpretation as to the nature of the transaction by which the first note of Wheeler and Harris to the respondent was made, and that is that it was so made simply for the purpose of enabling the bank to make a better showing as to the nature of the paper which it held so far as the time of payment was con Aug. 1893.] Dissenting Opinion-HOYT, J. cerned. There would be no reason whatever in its being made as collateral security to the other note, for the reason that both of the makers thereof were already bound to the bank by their signatures to the original note, nor would there be any reason for its being made as the principal note evidencing the debt for the same reason, and for the further reason that it would not be business for the bank, having security for such debt in the shape of the signatures of five persons to a note, to take another signed by only two of the persons so signing the principal note, and hold such principal note as collateral thereto. If such was the nature of the transaction when the first note of Wheeler and Harris was executed to the bank, it is but reasonable to suppose that all the notes executed in renewal thereof were of the same nature, and that none of them at any time became the principal security for the debt, or in any manner represented the same. It follows that the course of dealing in relation thereto was purely a matter of convenience as between the respondent and said Wheeler and Harris, and that the debt or principal note held as security therefor was in no manner affected by such transactions. With this view of the facts, the instructions of the court to the jury were substantially correct, and its findings amply warranted by the proofs, and, in my opinion, the judgment rendered thereon should be affirmed. 7 150 15 139 Syllabus. [7 Wash. 16 94 [No. 863. Decided August 9, 1893.] SEATTLE AND MONTANA RAILWAY COMPANY, Respondent, EMINENT DOMAIN-APPROPRIATION OF STATE LANDS-INTERSECT- Tide lands belonging to the state cannot be taken under the eminent domain act, as applied to railroads (Gen. Stat., §§ 1569, 1570; Code Proc., title 9, ch. 5), for the reason that such act has regard only to the taking of private, and not public, property. The act authorizing a city of the first class (Laws, 1889-90, p. 223, 5, subd. 37), "to project or extend its streets over and across any tide lands within its corporate limits, and along or across the harbor areas of such city," does not empower such city to lay out over the tide lands of the state a street which is not an extension of any of the existing streets of the city. Where a railway in process of construction crosses or parallels an existing railway, it must accommodate itself to the established way of the latter, and cannot be so constructed as to overlap the existing tracks or right-of-way longitudinally, so that either track cannot be operated when the other is in use. Under $1571, Gen. Stat., providing that if two railroad corporations cannot agree upon the point and manner of railroad crossings, the same shall be ascertained and determined in the manner provided by law for the taking of lands, and under §651, Code Proc., providing that if, at the time and place appointed for the hearing of the petition, the court shall be satisfied by competent proof that the land or other property sought to be appropriated is required and necessary for the purposes of such enterprise, an intersecting railroad cannot determine for itself the point and manner of its crossing another road, but the necessity therefor is a matter for adjudication by the court. An intersecting railroad should attempt to agree with the road crossed upon the point and manner of crossing and compensation therefor, before seeking the interposition of a court in proceedings to appropriate a right-of-way. It is not error for one of the judges of the superior court of a county, charged by rule of court with the examination of equity cases, before whom a cause is on trial, to deny a motion for the transfer of the cause to another judge for the purpose of a jury trial upon one branch of the case. Aug. 1893.] Opinion of the Court-STILES, J. A railroad seeking by condemnation proceedings to appropriate a right-of-way for crossing the tracks of another railroad may, by stipulation tendered, assume the burden of maintaining frogs and crossing apparatus. Appeal from Superior Court, King County. W. C. Jones, Attorney General, James A. Haight, Ashton & Chapman, and Andrew F. Burleigh, for appellants. Burke, Shepard & Woods, for respondent. The opinion of the court was delivered by 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 between 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. Stat., 1569-70; Code Proc., title 9, chap. 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, Em. Dom., § 273; State v. Anthoine, 40 Me. 435; Marblehead v. Commissioners, 5 Gray, 451; Charlestown v. Commissioners, 3 Metc. 202; Stevens v. Erie Ry. Co., 21 N. J. Eq. 259. The respondent, we believe, concedes thus much, but it |