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the courts of that state would have full ju- Action by James A. Moore and others risdiction of the corporation, but would have against D. F. Brownfield. From a judgment no jurisdiction whatever over it in relation to for plaintiffs, defendant appeals. Reversed. business not transacted in the state. This For former opinion, see 34 Pac. 199. seems to me to logically result from the hold

Benson & Morris, for appellant. Clise & ing as to the domicile of corporations an

King, for respondents. nounced by the supreme court of the United States, and under this rule the hardship and

HOYT, J. This is an appeal from a judg. injustice which will result from the other

ment rendered upon a trial had in pursuance will be avoided, yet the object of every state

of the order of this court upon a former apin the enactment of laws providing for juris

peal reversing the judgment theretofore rendiction over such corporations will be fully

dered. Upon such new trial the pleadings subserved. The only object of such legisla

were amended so that some new features tion is to protect the inhabitants of the state

were introduced. The principal contentions in their dealings with such corporations, and,

of the respective parties were, however, under the construction above suggested, this

founded upon substantially the same facts as object would be as fully accomplished by giv

in the first trial. Then and now the plaining the courts of the state such limited juris

tiffs claimed title in fee to the property in diction as by holding that they had jurisdic

question, and sought to eject the defendant tion as to every class of business transacted

therefrom. Then and now the contention of by the corporation in or out of the state. I

the defendant was that the property was not believe the true rule to be that such corpora

that of the plaintiffs, but belonged to the tions are within the jurisdiction of the courts

United States, and was occupied by him for of the state wherein they were incorporated

the purpose of enabling him to obtain title for all purposes, and of the courts of the

from the government. In addition to this, other states in which they do business only

the amended answer set up certain facts so far as necessary to protect the inhabitants tending to show that one of the grantors of thereof in relation to such business. Under

the plaintiff's had so conducted himself tothis rule the courts of the state of California

wards the property in question and its occuhad no jurisdiction of the defendant corpora

pation by defendant that he and they were tion in the case at bar, hence the liability of

estopped from asserting any title thereto as the company could be enforced here, regard

against him. less of the proceedings in the courts of that

The first ground of defense was the one state. It might follow that the company

mainly relied upon at the first trial, and the would have two judgments rendered against

evidence to establish the same was such that it for the same liability, but its remedy would

it was held upon the former appeal that it be an appeal to the supreme court of the

was sufficient to support the verdict rendered United States from one or both of them.

thereon, and the judgment would have been There this question would be finally deter

affirmed but for an erroneous construction of mined, and, when so determined, would be

the statute of limitations. It must follow binding upon the courts of all the states. I

that, if the testimony upon that question was think the decision in the case cited was

substantially the same upon the second trial wrong, and that the one announced in this is

as upon the first, and was properly admissi. also wrong.

ble under the allegations of the answer, it

so far established a defense to plaintiffs' ac(10 Wash. 439)

tion that its sufficiency should have been

submitted to the jury, and that it was error MOORE et al. v. BROWNFIELD.

to take it from their consideration, and di(Supreme Court of Washington. Dec. 29,

rect a verdict for the plaintiff's. It is, how1894.)

ever, contended that the answer upon which DIRECTING VERDICT-ESTOPPEL-MISTAKE.

the second trial was had was insufficient to 1. Where the supreme court decided that

warrant any proof upon this subject. This the evidence introduced by defendant below was sufficient to warrant a verdict in his favor,

contention is founded partly upon the lanbut ordered a new trial on other grounds, and guage of the answer and partly upon an alon second trial the same evidence was intro

leged concession by counsel for defendant, duced under proper allegations in the answer, it

at the trial, to the effect that he had abanwas error to direct a verdict for plaintiff.

2. The owner of the mainland opposite an doned what was termed the “island theory" island invited defendant to occupy the island, as a basis for his defense, and only relied disclaiming all interest therein, and stating that

upon the allegations of the answer in referit belonged to the United States. Defendant went into possession, made improvements, and

ence thereto by way of inducement to auremained in open and notorious possession, with- thorize the allegations relied upon as constiout objection from the owner of the mainland, tuting an esioppel. We are unable to asfor 15 years. Held, that such owner and his successors in title were estopped to assert title

certain wherein the allegations of the answer to the land, though the invitation and represen

fail to set out sufficient facts to warrant the tation were made in good faith, under mistake proofs introduced. They may not have been as to the title.

as completely separated from those as to the Appeal from superior court, King county; estoppel as they should have been, but that T. J. Humes, Judge.

fact only furnished ground for a motion to v.39p.no.148

have the defenses separately stated, and did government; that in pursuance of such invinot authorize a demand that the defendant tation defendant went into possession of the elect as to which he would rely upon. Un- property, cleared the same, erected buildings der the reformed procedure, the pleading con- thereon, and there made his home continusists of a statement of the facts, and the an. ally from about the date of said invitation, swer in question was in substantial compli- in 1879, until the present time; that his ocance with its requirements. Neither can we cupation and improvement have been open find that there was a waiver at the trial of a and notorious, and without any objection on right to rely upon this “island theory" as a the part of said Christian Brownfield or any defense to plaintiffs' action. Some such as- other person; and that the plaintiffs claim sertion was made at the time by counsel for under said Brownfield. It was not alleged plaintiffs, but the defendant so qualified his or proven that in extending this invitation acquiescence therein that he was not thereby and inducing these acts on the part of the deprived of the right to rely upon all the defendant the said Christian Brownfield was facts pleaded which he could prove. We guilty of any bad faith. It will probably be have examined all the evidence, and com- conceded that these representations were pared it with that put in upon the former sufficient, if willfully made, to have estopped trial, and are satisfied that the proof as to said Brownfield, and those holding under the “island theory” was much stronger upon him, from asserting title to the property. this trial than upon the former one. At that Nearly all of the authorities cited show that trial there was a substantial contradiction by such would have been the result of such mis. the plaintiffs of the proof offered by defend- representations, followed by the acts of the ant, while at this one there was nothing to defendant proven upon the trial. It is true contradict the testimony offered by defend- that a few of the cases lay down the doctrine ant to show that the land was once an island. that an equitable estoppel cannot be pleaded

What we have said is sutlicient to show in defense to an action of ejectment. But that the action of the court in directing a ver- an examination thereof will show that they dict for the plaintiff's constituted reversible were decided by courts exercising only comerror, but, in view of another trial, we will mon-law jurisdiction, or where the distincdiscuss the other questions involved in the tion between the courts of common-law and case. One of them is the claim on the part chancery exists, and few, if any, cases can of the defendant that the plaintiffs did not be found, where the reformed procedure is in prove title in themselves. An examination force, which hold that an equitable estoppel of the record shows there is force in this may not be pleaded in an action of ejectment, contention, so far as the actual introduction The question remains as to the effect of of evidence is concerned; but it is claimed such declarations and conduct when not that such evidence was made unnecessary made in bad faith. As to this, there is a by reason of certain stipulations and agree- want of harmony among the cases, but, in ments entered into by the defendant. The our opinion, under such circumstances as record upon this appeal does not fully dis- were shown by the testimony on the part of close all that may have had binding force the defendant in the case at bar, the one who upon the defendant in reference to this ques- made these representations, and those claimtion, and we call attention to it now in order ing under him, were estopped, even although that at the next trial the matter may be the representations were made in good faith, more clearly put before the jury.

The effect upon one acting upon them is not The other question grows out of the pleadings changed by the motive which induced the and proofs offered to show that plaintiffs were representations. And we see no good reason estopped from asserting title against the de- why one who had made representations, even fendant. From these allegations and proofs though acting under a mistake, as to the the following facts were sufficiently estab- title of a piece of property, for the purpose lished to require a submission of the ques- of inducing another to purchase the same tions relating thereto to the jury: That and expend money thereon, should be alChristian Brownfield was the owner of a lowed to stand by and see the money exhomestead claim upon the mainland oppo- | pended, and afterwards assert title in him. site the property in question; that said prop- self to the property. The most of the cases erty was an island cut off from the main- speak of such representations as having been land by a channel about 80 feet wide, cov- willfully made, but some of them boldly anered with water during the greater portion nounce the doctrine that one cannot, in equiof the year to the depth of 3 or 4 feet; that ty, assert title to a piece of property concernthe meander line which bounded his claini ing which he has made such representations along the lake front was upon said mainland, as to induce another to purchase and improve quite a distance from the center of the chan- the same. We cite the following cases, some nel which divided the island therefrom; that of which assert the doctrine to the full exwhile he was such owner of the upland he tent required to sustain the contention of invited the defendant to go upon this island, the defendant upon the proof offered in the and there make his home; that at that time case at bar, and the reasoning of the others he disclaimed all interest in the property logically leads to the same result, although himself, and stated that it belonged to the the element of willfulness was a part of the facts upon which the decisions were found- closure of certain liens upon the property of ed: City of Los Angeles v. Cohn (Cal.) 35 the appellants. The claim of the plaintif Pac. 1002; Eickelberg v. Soper (S. D.) 47 N. the Washington Rock-Plaster Company is atW. 953; Roeder v. Fouts, 5 Wash. 135, 31 tacked upon two grounds, one, that the Pac. 432; Marines v. Goblet (S. C.) 9 S. E. work for which the lien was claimed was not 803; Putnam v. Tyler (Pa. Sup.) 12 Atl. 43; | fully completed; the other, that it was unMorgan v. Railroad Co., 96 U. S. 716; Trus- skillfully done, and therefore of less value tees v. Smith, 118 N. Y. 634, 23 N. E. 1002. than contemplated. The proofs upon these See, also, Broom, Leg. Max. (8th Ed.) *174. questions were not very satisfactory, but It is true that in the case at bar the defend- were sufficient to sustain the decree, as this ant was not induced to purchase the prop- court will not reverse a finding of the suerty, but the taking possession of it as gov- perior court unless there was a substantial ernment land, with a view of obtaining title failure of proof to support it. The lien of by residence and cultivation, was, in our the plaintiff Wheeler, Osgood & Co. is also opinion, equivalent to a purchase. The judg- attacked upon two grounds-one, that the ment will be reversed, and the cause remand- terms and conditions of the contract were ed for a new trial.

not sufficiently set out in the notice; and the

other, that the husband alone was named DUNBAR, C. J., and STILES, J., concur.

as the owner of the property. In our opinion, the statement of the contract was suffi

cient, under the rules announced by the de(10 Wash. 445)

cisions of this court cited by appellants. In WASHINGTON ROCK-PLASTER CO. v.

the cases so cited, the statement of the conJOHNSON et al. (BANK OF

tract in the lien notice under consideration EVERETT, Intervener).

was in some respects similar to the one in WHEELER, OSGOOD & CO. v. SAME the case at bar, but did not contain, as did (BANK OF EVERETT et al.,

this one, any sufficient reference to a bill of Interveners).

items showing in detail all the materials fur(Supreme Court of Washington. Dec. 29, nished under the contract. The paper title 1894.)

was in the name of the husband, and knowl. MECHANICS' LIENS-FORECLOSURE THEREOP – - IN- edge of the fact that he had a wife was not TERVENTION OF OTHER LIEN HOLDERS-SuffiCIENCY OF NOTICE-REVERSAL OF FINDINGS.

so brought home to the plaintiff as to make 1. The supreme court will not reverse a

it necessary that it should name her as one finding unimas there was a substantial failure of of the owners of the property. Besides, the proof to support it.

necessity of making her a party to the lien 2. Where it appeared, in an action to fore

notice in any case where the record title is close a lien on property owned by a husband and wife, that the title thereof was in the name

in the husband alone may well be doubted. of the husband only, and that knowledge of the The object of the notice is to advise a searchfact that he had a wife was not brought home er of the records of the existence of the lien, to the plaintiff, it was not error to render judg. ment for the latter, though the notice omitted

And, as his attention is directed to the recthe name of the wife.

ord title, the claim against it will give full 3. Liens of other mechanics and material notice. The husband is so far charged with men can be joined by intervention in an action

the care and management of the community brought by one of them for the foreclosure of his lien, if, in opinion of the trial court, the in

property that notice to him fully serves the terests of all parties demand it.

object of the lien notice. 4, To make an irregularity arising from the

The objection to the decree so far as it refailure of the lower court to find facts, preliminary to the rendering of its decree, available on

lates to the claims of the interveners is appeal, a timely request and objection at or be- founded upon the contention that in a suit fore the time of the entry of the decree must be for the foreclosure of a lien of a mechanic shown.

or material man it is not within the discre Appeal from superior court, Snohomish

tion of a court to allow an intervention for county.

the purpose of enforcing a lien upon the same Action by the Washington Rock-Plaster

property growing out of contracts of a differCompany against August Johnson and Ame- ent nature. Some authorities are cited to sus. lia Johnson, and one by Wheeler, Osgood & tain this contention, but, in our opinion, they Co. against the same and other parties. The are remotely, if at all, in point. Under our Bank of Everett and others intervened, and statute there is no reason why other liens the actions were consolidated. From a judg- than those of mechanics and material men ment in favor of plaintiffs and interveners, cannot be joined in an action for the foredefendants Johnson appeal. Affirmed.

closure of such liens, if, in the opinion of the Delaney & Gamel, for appellants. Black

trial court, the convenience and interests of & Edwards for appellees Mitchel Land &

all parties demand such joinder. All the Imp. Co., M. 0. Tibbits, and Kronnick & Par- liens relate to the same subject-matter, and sons. Hudson & Holt and Miller & Roscoe,

suits thereon seek a common remedy,-that for appellees Wheeler, Osgood & Co.

is, to have the property sold in satisfaction

thereof,—and bear such relations to each HOYT, J. This is an appeal from a de- other as to come within the provisions of our cree, in & consolidated case, for the fore statute as to intervention,

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Another objection is raised to the entire in that respect were unconstitutional, and decree. There was no finding of facts by that no such power was conferred. It is conthe court preliminary to its rendition. Our tended by respondent, however, that the represent statute requires a finding of facts in maining portions of the act are not affected an equity case, as well as in one at law, tried by that decision; that the act has three disby the court, but it does not follow that a tinct features: First, the securing of the decree will be reversed on appeal, for want right of way, which the decision aforesaid of such finding, when it is not made to ap- held void; second, the construction of the pear by the record that there was any re- improvement; and, third, the apportionment quest for a finding, or any objection raised of benefits and assessment of the cost of on that account in the court below. To make construction, which were not involved in such irregularity available on appeal, a the case aforesaid, and which, it is contendtimely request and objection at or before the ed, should stand independent of the first time of the entry of the decree must be proposition, as that only affected the seshown. There is nothing in the record tend- curing of the right of way under the power ing to show such action in the case at bar. of eminent domain; and that the right of On the contrary, there are some recitals in way may still be obtained by purchase, in the decree which tend to show that a finding which case the provisions of the act are sufof facts other than therein contained was ficient for the enforcement of such undertakexpressly waived by all parties. The judg- ings. In determining whether a part of an ment will be affirmed.

act can stand where another part has been

held unconstitutional, a different rule as to SCOTT and STILES, JJ., concur. DUN- presumptions is recognized from that which BAR, C. J., concurs in the result.

obtains where the whole act is being considered. The general rule that legislative acts

are primarily presumed to be constitutionale (10 Wash. 388)

and that all intendments are to be made in SKAGIT COUNTY V. STILES.

favor of the act to give it effect according (Supreme Court of Washington. Dec. 26, 1894.)

to the intent of the lawmaking power, does

not apply in such cases, as the upholding of CONSTITUTIONAL LAW-STATUTE INVALID IN PART - CONSTRUCTION.

a part of an act is not favored; and where Since that part of Sess. Laws 1889-90,

a part has been held unconstitutional, and p. 652, allowing a county to condemn lands for the remaining portion comes up for consida right of way for a ditch, has been adjudged eration as to whether it can stand as an unconstitutional, and no other method of acquir- independent proposition, the presumptions ing land for such purposes is provided, and other sections of the act providing for an appeal

are generally against it, and it will not be from the award of damages in such condemna- sustained, unless “that which remains is tion proceedings, and leaving the county without complete in itself, and capable of being expower to enforce the construction of the ditch if it acquires the land in any other way than by

ecuted in accordance with the apparent legiscondemnation, evidence an intent on the part of lative intent, wholly independent of that the legislature to make the various sections of which was rejected.” Cooley, Const. Lim. the act interdependent, the whole act is unconstitutional.

(5th Ed.) p. 212. When so construed, can the

remaining portions of this act stand? It is Appeal from superior court, Skagit coun

plain from a reading of the act (Sess. Laws ty; Henry McBride, Judge.

1889–90, p. 652) that the only way provided Action by Skagit county against Fletcher

for obtaining a right of way thereunder was Stiles. From a judgment for plaintiff, de

by condemnation proceedings. Undoubtedfendant appeals. Reversed.

ly, however, a person could donate a right of Million & Houser, for appellant. Geo. A. way for such a ditch; but it is an entirely Joiner, for respondent.

different question whether the commission

ers have authority to acquire a right of way SCOTT, J. This was an application in the by negotiating a purchase. Under the procourt below on the part of Skagit county, visions of this act, a petition must be preby its county treasurer, for a judgment sented asking for the improvement, and givagainst the defendant for a delinquent ditch ing a general description of the proposed assessment of the year 1891, together with route. A bond conditioned for the payment the penalty, interest, and costs, and for an of all costs if the prayer of the petition is order of sale thereon. The assessment was not granted, or in case it is dismissed for sustained, and judgment rendered as prayed any cause, must be filed therewith; wherefor, and the defendant appeals.

upon there must be a view of the line of One of the questions raised is as to the the proposed ditch, and a report thereon, constitutionality of the law under which the and, if a finding is made in favor of the improceedings were had. This law was before provement, there must be a survey and this court for consideration in Askam v. definite location of the route, etc., and 10King Co., 9 Wash. - 36 Pac, 1097, which tice given, whereupon claims for damages case involved the right of the county to con- may be made, and various objections raised. demn lands for a right of way for a ditch; Section 17 authorizes an appeal from allow. and it was held that the provisions of the act ances made by the commissioners as com. pensation for lands taken for the right of this if the commissioners had no power to way, etc., by any person aggrieved; and, al- acquire a right of way under the right of though subsequent sections seem to indi- eminent domain. These provisions of the cate that the right of appeal in such cases act would negative the idea that it was inis limited to the owner of the land taken, tended to allow the commissioners to prowe do not think such is the intent of the cure the right of way by negotiating a puract. If the landowner has a right to appeal chase, even if they could do so independent from an allowance which he considers too of an express authorization, and we are of small, other persons to be assessed for the the opinion that they could not. Consecost of the improvement should have the quently, there is no more than a bare possiright to appeal from an excessive one, as bility that the remaining portions of the act they are certainly aggrieved thereby, and can be operative under any circumstances. consequently come within the provisions of The undertaking could only be carried out section 17. Now, aside from the fact that in case a right of way was donated, and, in the act nowhere gives the county a right to order to obviate the objection of possibly purchase a right of way for such an im- subjecting the petitioners to the costs of the provement, it is apparent that, if the com- primary proceedings in consequence of an missioners have such power independent of inability to secure the right of way where the act, there could be no appeal from the the finding is in favor of constructing the amount which they should agree to pay a improvement, such donation must be made particular landowner for a right of way. in advance of the preliminary view of the The legislature might have been willing to proposed line; and there might be some difsubject the petitioners for such improve-ficulty in this, as a sligbt change of location ments to the burden of paying the cost of thereafter, when it should be definitely dethe right of way where the same is obtained termined, might transfer the line from the under the power of eminent domain, and the lands of one owner to those of a different compensation adjudged by the commission- owner, and, to avoid contingencies of this ers, with the right of an appeal therefrom kind, it would be necessary to obtain gifts to the courts, but might have been unwill- of the right of way from all landowners in ing to do so if such compensation was to be the immediate vicinity of the line of the imdetermined and allowed according to the ar- provement as contemplated. This might posbitrary judgment of the commissioners. sibly be done, but the fact that there is a

Furthermore, it is apparent, under the pro possibility of constructing a ditch under the visions of this act, that some expenses must remaining portions of this act is not suffibe incurred in definitely locating the route cient to except it from the presumption that before the commissioners could well proceed the legislature would not have passed the to obtain a right of way by purchase. While parts of the act in question as independent the petitioners must give a general descrip- propositions, or without conferring upon the tion of the route over wbich the proposed county the right to condemn lands for a improvement is desired to be constructed, right of way; and, that part having been it is not intended that it should be an exact held unconstitutional, the whole act must fall one primarily, and the route only becomes with it. Reversed. definitely and conclusively established by the final survey, after it is determined to con- DUNBAR, C. J., and HOYT, J., concur. struct the improvement. Having gone thus far, and incurred the necessary costs for STILES, J. (dissenting). I hold that the viewing the proposed improvement in order fact that the appellant petitioned for the to pass upon its desirability, and having in- construction of this ditch, and that it has curred the necessary expenses for definitely been constructed in accordance with his own locating the line and making the plat, etc., request, ougbt to estop him from raising the if without the power of condemning a right constitutional question discussed above. The of way the commissioners might be utterly ditch is there, and he is getting the benefit unable to carry out the proposed undertak- of it; and the people who did the work, and ing, for the persons over whose lands the who would have a lien upon his land for the ditch was to be constructed might refuse to value of their labor thereon had his request sell or to give the necessary right of way. been to them directly, have not been paid, Now, evidently, the legislature intended, in and will not be, for the county is in no wise enacting this law, that the county commis- liable sioners should have power to enforce the construction of the ditch when its desira

(10 Wash. 414) bility had been determined upon in the primary proceedings, and it was not intended

BALDWIN V. BAER et al.? that the petitioners for such an improve- (Supreme Court of Washington. Dec. 27, 1894.) ment should take the risk of having to pay MORTGAGES LIEN OF PRIOR JUDGMENT - TRAN. the costs of the original proceedings in con

SCRIPT FROM ANOTHER COUNTY-Possi

BILITY OF ITS ATTACK. sequence of an inability to secure the right

1. Under Laws 1887-88, pp. 24-28, providof way when the commissioners granted the

ing that civil actions may be commenced by filpetition. And yet they might have to do ing a complaint and issuing a summons, and

1 Rehearing denied.

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