Volume 74 — Washington Reports, Second Series

<bold>[1] Criminal Law — Trial — Taking Case From Jury —</bold> <bold>Sufficiency of Evidence — Waiver.</bold> Any error of the trial court in denying a criminal defendant's motion to dismiss at the close of the state's case is waived by the defendant's subsequent introduction of evidence, unless the evidence he introduces has no bearing on the merits of the cause. [1] See Ann. 21 A.L.R. 264; 5 Am.Jur.2d, Appeal and Error § 565.

<bold>[1] Divorce — Custody of Children — Modification — Review.</bold> When substantial changes have occurred in the conditions and circumstances of divorced parents affecting a child's best interests and welfare, a modification of custody arrangements is proper. Whether or not to alter custody lies within the discretion of the trial court, not to be disturbed unless it appears from the whole record that there has been an abuse thereof. The trial court should consider all facts and circumstances affecting the child's interests, including the age and sex of the child, character and emotional traits of the spouses, physical care and moral and emotional environment to be provided the child by the respective parents, and such other factors as may reasonably bear upon the child's welfare. <bold>[2] Same — Custody of Children — Father's Custody.</bold> Although courts are reluctant to deprive a mother of the custody of young children, they will do so when the evidence establishes that the child's best interests and welfare require that custody be placed in the father. <bold>[3] Contempt — Notice of Issue — Necessity.</bold> Before a party may be held in contempt, and sanctions imposed, for disobedience of a court's order, the party must be given notice that the alleged contempt is an issue to be determined by the court. <bold>[4] Divorce — Attorney's Fees — When Allowable.</bold> The allowance under RCW 26.08.190 of costs and expenses, suit money in advance of trial, and attorneys' fees in divorce and modification proceedings are matters addressed to the sound discretion of the trial court, and, when exercising this discretion, the court must base its decision on the need of the party requesting them and the ability of the other to pay. [1] See Ann. 70 A.L.R. 526; 24 Am.Jur.2d, Divorce and Separation § 820.

<bold>[1] Criminal Law — Evidence — Suppression — Hearing — Matters</bold> <bold>Considered.</bold> It is within the trial court's discretion to allow oral testimony, in addition to affidavits, when hearing a motion to suppress evidence. <bold>[2] Same — Evidence — Handwriting Exemplar.</bold> A handwriting exemplar of defendant was admissible at his trial, where obtained after he was advised of his constitutional rights, it was admittedly made without duress or promise, and there was nothing otherwise indicating it was involuntary. [2] See Ann. 1 A.L.R. 1304; 21 Am.Jur.2d, Criminal Law § 362.

<bold>[1] Eminent Domain — Compensation — Evidence — Opinion</bold> <bold>Evidence.</bold> Expert testimony as to the value of land claimed to be comparable to that being condemned may be excluded at the discretion of the trial court where such evidence creates implications which might mislead the jury to the prejudice of the objecting party. <bold>[2] Same — Compensation — Evidence — Comparable Sales —</bold> <bold>Discretion of Court.</bold> Admissibility of other sales for comparative value purposes in a condemnation proceeding is a discretionary matter resting almost exclusively with the trial court. <bold>[3] Same — Compensation — Value of Mineral Content — Price Times</bold> <bold>Quantity.</bold> It is improper to value land being condemned by multiplying the amount of minerals on the land times a specific unit value for the minerals unless there is proof that there exists a market demand for the minerals at the price used in the computation. <bold>[4] Trial — Comment on Evidence — Ruling on Objection.</bold> A trial court did not comment on the evidence by saying "objection sustained" in ruling on an objection to adverse counsel "arguing with the witness." <bold>[5] Same — Instructions — Sufficiency — In General.</bold> Each party is entitled to instructions in the form of general statements of applicable law on his theory of the case when sustained by substantial evidence. They are to be considered as a whole and are not to be amplified if broad enough to permit satisfactory argument to the jury on one's theory of the case. <bold>[6] Eminent Domain — Compensation — Fair Market Value —</bold> <bold>Definition.</bold> Fair market value is the amount of money which a well informed buyer, willing but not obliged to buy the property, would pay, and<page_number>Page 329</page_number> which a well informed seller, willing but not obligated to sell it, would accept, taking into consideration all uses to which the property is adapted and might in reason be applied. It does not mean the highest and best use which will yield the greatest return in dollars. [3] See Ann. 156 A.L.R. 1416; 27 Am.Jur.2d, Eminent Domain § 437.

<bold>[1] Waters and Watercourses — Nonnavigable Lakes — Riparian</bold> <bold>Rights — Vested Rights.</bold> Riparian rights on a nonnavigable lake are acquired by virtue of owning property contiguous to the water, and are vested property rights within the contemplation of Const. art. 1, § 16, which provides that private property shall not be taken or damaged for public or private use without just compensation. <bold>[2] Same — Riparian Uses — Structure.</bold> Maintenance of a structure on or over water is not a riparian use unless the structure is so intimately associated with the water that apart from the water its utility would be seriously impaired. <bold>[3] Same — Nonnavigable Lakes — Riparian Rights — Nature.</bold> A riparian owner along a natural, nonnavigable lake shares in common with the other riparian owners the right to use the entire surface of the lake for boating, fishing, swimming, and other riparian uses so long as there is no unreasonable interference with the exercise of these rights by other respective owners. <bold>[4] Same — Nonnavigable Lakes — Riparian Rights — Regulation by</bold> <bold>Zoning.</bold> While a municipality may regulate the exercise of riparian rights on a nonnavigable lake by means of its police power, it may not totally divest the riparian owners of their rights through zoning. <bold>[5] Property — Encroachments — Balancing of Equities — When</bold> <bold>Available.</bold> The doctrine of balancing the equities or relative hardship is not available to prevent the enforcement of the legal right to have encroaching structures removed where the encroacher knew at the time he constructed it that his right to do so was contested and there was a real likelihood that he would be held to have interfered with the rights of others. <bold>[6] Judges — Disqualification — Previous Advocacy.</bold> A judge is not disqualified under RCW <cross_reference>4.12.040</cross_reference>, as being prejudiced against a party or his interest, simply because the judge had previous occasion, as a practicing attorney, to study and give advice based on his interpretation of a point of law involved in the cause presently before him. <bold>[7] Appeal and Error — Findings of Fact — Review.</bold> A trial court's findings will not be disturbed on appeal when supported by substantial evidence. <bold>[8] Waters and Watercourses — Nonnavigable Lakes — Riparian</bold> <bold>Rights — Federal Law.</bold> Federal common law, as opposed to state law, does not apply to determine the riparian rights of an owner of property contiguous to a nonnavigable lake within this state simply because<page_number>Page 576</page_number> the owner's title to the property can be traced to a federal government patent issued prior to statehood. [1] See Ann. 57 A.L.R.2d 569; 56 Am. Jur., Water (1st ed. § 275).

<bold>[1] Divorce — Disposition of Property — Factors Considered.</bold> When making a disposition of property at the time of divorce, the court will consider the necessities of the wife and the financial abilities of the husband, the age, health, etc., of the parties and the children, future earning prospects, sources and kinds of property, concern for child support and alimony, and, among other things, the question of fault. The disposition need only be just and equitable, with wide discretion and latitude resting in the trial court. <bold>[2] Same — Disposition of Property — Review.</bold> The Supreme Court will substitute its judgment as to disposition of property of divorced persons for that of the trial court only when inequity and injustice are apparent beyond simply an honest difference of opinion and an abuse of discretion is clearly manifest on the part of the trial court. <bold>[3] Evidence — Judicial Notice — Facts Capable of Being</bold> <bold>Noticed.</bold> The courts have a very broad authority to avoid unnecessary proof of established facts by taking judicial notice in proper instances. A fact may be noticed if it is verifiably certain by reference to competent, authoritative sources. <bold>[4] Divorce — Disposition of Property — Cost of Reducing Real</bold> <bold>Estate to Cash.</bold> When disposing of an apartment building owned by parties to a divorce, a trial court acted properly in taking judicial notice of, and considering, contingent commissions and additional costs of financing a sale of the property in order to arrive at the true value prior to awarding it to one of the parties. [1] See Ann. 164 A.L.R. 329; 24 Am.Jur.2d, Divorce and Separation § 933.