the courts of that state would have full jurisdiction of the corporation, but would have no jurisdiction whatever over it in relation to business not transacted in the state. This seems to me to logically result from the holding as to the domicile of corporations announced by the supreme court of the United States, and under this rule the hardship and injustice which will result from the other will be avoided, yet the object of every state in the enactment of laws providing for jurisdiction over such corporations will be fully subserved. The only object of such legisla I tion is to protect the inhabitants of the state in their dealings with such corporations, and, under the construction above suggested, this object would be as fully accomplished by giving the courts of the state such limited jurisdiction as by holding that they had jurisdiction as to every class of business transacted by the corporation in or out of the state. believe the true rule to be that such corporations are within the jurisdiction of the courts of the state wherein they were incorporated for all purposes, and of the courts of the other states in which they do business only so far as necessary to protect the inhabitants thereof in relation to such business. Under this rule the courts of the state of California had no jurisdiction of the defendant corporation in the case at bar, hence the liability of the company could be enforced here, regardless of the proceedings in the courts of that state. It might follow that the company would have two judgments rendered against it for the same liability, but its remedy would be an appeal to the supreme court of the United States from one or both of them. There this question would be finally determined, and, when so determined, would be binding upon the courts of all the states. I think the decision in the case cited was wrong, and that the one announced in this is also wrong. (10 Wash. 439) MOORE et al. v. BROWNFIELD. (Supreme Court of Washington. Dec. 29, 1894.) DIRECTING VERDICT-ESTOPPEL-MISTAKE. 1. Where the supreme court decided that the evidence introduced by defendant below was sufficient to warrant a verdict in his favor, but ordered a new trial on other grounds, and on second trial the same evidence was introduced under proper allegations in the answer, it was error to direct a verdict for plaintiff. 2. The owner of the mainland opposite an island invited defendant to occupy the island, disclaiming all interest therein, and stating that it belonged to the United States. Defendant went into possession, made improvements, and remained in open and notorious possession, without objection from the owner of the mainland, for 15 years. Held, that such owner and his successors in title were estopped to assert title to the land, though the invitation and representation were made in good faith, under mistake as to the title. Appeal from superior court, King county; T. J. Humes, Judge. v.39p.no.1-8 Action by James A. Moore and others against D. F. Brownfield. From a judgment for plaintiffs, defendant appeals. Reversed. For former opinion, see 34 Pac. 199. Benson & Morris, for appellant. Clise & King, for respondents. HOYT, J. This is an appeal from a judg ment rendered upon a trial had in pursuance of the order of this court upon a former appeal reversing the judgment theretofore rendered. Upon such new trial the pleadings were amended so that some new features were introduced. The principal contentions of the respective parties were, however, founded upon substantially the same facts as in the first trial. Then and now the plaintiffs claimed title in fee to the property in question, and sought to eject the defendant therefrom. Then and now the contention of the defendant was that the property was not that of the plaintiffs, but belonged to the United States, and was occupied by him for the purpose of enabling him to obtain title from the government. In addition to this, the amended answer set up certain facts tending to show that one of the grantors of the plaintiff's had so conducted himself towards the property in question and its occupation by defendant that he and they were estopped from asserting any title thereto as against him. The first ground of defense was the one mainly relied upon at the first trial, and the evidence to establish the same was such that it was held upon the former appeal that it was sufficient to support the verdict rendered thereon, and the judgment would have been affirmed but for an erroneous construction of the statute of limitations. It must follow that, if the testimony upon that question was substantially the same upon the second trial as upon the first, and was properly admissible under the allegations of the answer, it so far established a defense to plaintiffs' action that its sufficiency should have been submitted to the jury, and that it was error to take it from their consideration, and direct a verdict for the plaintiffs. It is, however, contended that the answer upon which the second trial was had was insufficient to warrant any proof upon this subject. This contention is founded partly upon the language of the answer and partly upon an alleged concession by counsel for defendant, at the trial, to the effect that he had abandoned what was termed the "island theory" as a basis for his defense, and only relied upon the allegations of the answer in reference thereto by way of inducement to authorize the allegations relied upon as constituting an estoppel. We are unable to ascertain wherein the allegations of the answer fail to set out sufficient facts to warrant the proofs introduced. They may not have been as completely separated from those as to the estoppel as they should have been, but that fact only furnished ground for a motion to have the defenses separately stated, and did not authorize a demand that the defendant elect as to which he would rely upon. Under the reformed procedure, the pleading consists of a statement of the facts, and the an swer in question was in substantial compliance with its requirements. Neither can we find that there was a waiver at the trial of a right to rely upon this "island theory" as a defense to plaintiffs' action. Some such assertion was made at the time by counsel for plaintiffs, but the defendant so qualified his acquiescence therein that he was not thereby deprived of the right to rely upon all the facts pleaded which he could prove. We have examined all the evidence, and compared it with that put in upon the former trial, and are satisfied that the proof as to the "island theory" was much stronger upon this trial than upon the former one. At that trial there was a substantial contradiction by the plaintiffs of the proof offered by defendant, while at this one there was nothing to contradict the testimony offered by defendant to show that the land was once an island. What we have said is sufficient to show that the action of the court in directing a verdict for the plaintiffs constituted reversible error, but, in view of another trial, we will discuss the other questions involved in the case. One of them is the claim on the part of the defendant that the plaintiffs did not prove title in themselves. An examination of the record shows there is force in this contention, so far as the actual introduction of evidence is concerned; but it is claimed that such evidence was made unnecessary by reason of certain stipulations and agreements entered into by the defendant. The record upon this appeal does not fully disclose all that may have had binding force upon the defendant in reference to this question, and we call attention to it now in order that at the next trial the matter may be more clearly put before the jury. The other question grows out of the pleadings and proofs offered to show that plaintiffs were estopped from asserting title against the defendant. From these allegations and proofs the following facts were sufficiently established to require a submission of the questions relating thereto to the jury: That Christian Brownfield was the owner of a homestead claim upon the mainland opposite the property in question; that said property was an island cut off from the mainland by a channel about 80 feet wide, covered with water during the greater portion of the year to the depth of 3 or 4 feet; that the meander line which bounded his claim along the lake front was upon said mainland, quite a distance from the center of the channel which divided the island therefrom; that while he was such owner of the upland he invited the defendant to go upon this island, and there make his home; that at that time he disclaimed all interest in the property himself, and stated that it belonged to the government; that in pursuance of such invitation defendant went into possession of the property, cleared the same, erected buildings thereon, and there made his home continually from about the date of said invitation, in 1879, until the present time; that his occupation and improvement have been open and notorious, and without any objection on the part of said Christian Brownfield or any other person; and that the plaintiffs claim under said Brownfield. It was not alleged or proven that in extending this invitation and inducing these acts on the part of the defendant the said Christian Brownfield was guilty of any bad faith. It will probably be conceded that these representations were sufficient, if willfully made, to have estopped said Brownfield, and those holding under him, from asserting title to the property. Nearly all of the authorities cited show that such would have been the result of such mis representations, followed by the acts of the defendant proven upon the trial. It is true that a few of the cases lay down the doctrine that an equitable estoppel cannot be pleaded in defense to an action of ejectment. But an examination thereof will show that they were decided by courts exercising only com mon-law jurisdiction, or where the distinction between the courts of common-law and chancery exists, and few, if any, cases can be found, where the reformed procedure is in force, which hold that an equitable estoppel may not be pleaded in an action of ejectment. The question remains as to the effect of such declarations and conduct when not made in bad faith. As to this, there is a want of harmony among the cases, but, in our opinion, under such circumstances as were shown by the testimony on the part of the defendant in the case at bar, the one who made these representations, and those claiming under him, were estopped, even although the representations were made in good faith. The effect upon one acting upon them is not changed by the motive which induced the representations. And we see no good reason why one who had made representations, even though acting under a mistake, as to the title of a piece of property, for the purpose of inducing another to purchase the same and expend money thereon, should be allowed to stand by and see the money expended, and afterwards assert title in him. self to the property. The most of the cases speak of such representations as having been willfully made, but some of them boldly announce the doctrine that one cannot, in equity, assert title to a piece of property concerning which he has made such representations as to induce another to purchase and improve the same. We cite the following cases, some of which assert the doctrine to the full extent required to sustain the contention of the defendant upon the proof offered in the case at bar, and the reasoning of the others logically leads to the same result, although the element of willfulness was a part of the facts upon which the decisions were founded: City of Los Angeles v. Cohn (Cal.) 35 Pac. 1002; Eickelberg v. Soper (S. D.) 47 N. W. 953; Roeder v. Fouts, 5 Wash. 135, 31 Pac. 432; Marines v. Goblet (S. C.) 9 S. E. 803; Putnam v. Tyler (Pa. Sup.) 12 Atl. 43; Morgan v. Railroad Co., 96 U. S. 716; Trustees v. Smith, 118 N. Y. 634, 23 N. E. 1002. See, also, Broom, Leg. Max. (8th Ed.) *174. It is true that in the case at bar the defendant was not induced to purchase the property, but the taking possession of it as government land, with a view of obtaining title by residence and cultivation, was, in our opinion, equivalent to a purchase. The judgment will be reversed, and the cause remanded for a new trial. DUNBAR, C. J., and STILES, J., concur. (10 Wash. 445) WASHINGTON ROCK-PLASTER CO. v. (Supreme Court of Washington. Dec. 29, MECHANICS' LIENS-FORECLOSURE THEREOF - INTERVENTION OF OTHER LIEN HOLDERS-SUFFICIENCY OF NOTICE-REVERSAL OF FINDINGS. 1. The supreme court will not reverse a finding unless there was a substantial failure of proof to support it. 2. Where it appeared, in an action to foreclose a lien on property owned by a husband and wife, that the title thereof was in the name of the husband only, and that knowledge of the fact that he had a wife was not brought home to the plaintiff, it was not error to render judg ment for the latter, though the notice omitted the name of the wife. 3. Liens of other mechanics and material men can be joined by intervention in an action brought by one of them for the foreclosure of his lien, if, in opinion of the trial court, the interests of all parties demand it. 4. To make an irregularity arising from the failure of the lower court to find facts, preliminary to the rendering of its decree, available on appeal, a timely request and objection at or before the time of the entry of the decree must be shown. Appeal from superior court, Snohomish county. Action by the Washington Rock-Plaster Company against August Johnson and Amelia Johnson, and one by Wheeler, Osgood & Co. against the same and other parties. The Bank of Everett and others intervened, and the actions were consolidated. From a judgment in favor of plaintiffs and interveners, defendants Johnson appeal. Affirmed. Delaney & Gamel, for appellants. Black & Edwards for appellees Mitchel Land & Imp. Co., M. O. Tibbits, and Kronnick & Parsons. Hudson & Holt and Miller & Roscoe, for appellees Wheeler, Osgood & Co. HOYT, J. This is an appeal from a decree, in a consolidated case, for the fore closure of certain liens upon the property of the appellants. The claim of the plaintiff the Washington Rock-Plaster Company is attacked upon two grounds,-one, that the work for which the lien was claimed was not fully completed; the other, that it was unskillfully done, and therefore of less value than contemplated. The proofs upon these questions were not very satisfactory, but were sufficient to sustain the decree, as this court will not reverse a finding of the superior court unless there was a substantial failure of proof to support it. The lien of the plaintiff Wheeler, Osgood & Co. is also attacked upon two grounds,-one, that the terms and conditions of the contract were not sufficiently set out in the notice; and the other, that the husband alone was named as the owner of the property. In our opinion, the statement of the contract was suffi cient, under the rules announced by the decisions of this court cited by appellants. In the cases so cited, the statement of the contract in the lien notice under consideration was in some respects similar to the one in the case at bar, but did not contain, as did this one, any sufficient reference to a bill of items showing in detail all the materials furnished under the contract. The paper title was in the name of the husband, and knowledge of the fact that he had a wife was not so brought home to the plaintiff as to make it necessary that it should name her as one of the owners of the property. Besides, the necessity of making her a party to the lien notice in any case where the record title is in the husband alone may well be doubted. The object of the notice is to advise a searcher of the records of the existence of the lien. And, as his attention is directed to the rec ord title, the claim against it will give full notice. The husband is so far charged with the care and management of the community property that notice to him fully serves the object of the lien notice. The objection to the decree so far as it relates to the claims of the interveners is founded upon the contention that in a suit for the foreclosure of a lien of a mechanic or material man it is not within the discretion of a court to allow an intervention for the purpose of enforcing a lien upon the same property growing out of contracts of a different nature. Some authorities are cited to sustain this contention, but, in our opinion, they are remotely, if at all, in point. Under our statute there is no reason why other liens than those of mechanics and material men cannot be joined in an action for the foreclosure of such liens, if, in the opinion of the trial court, the convenience and interests of all parties demand such joinder. All the liens relate to the same subject-matter, and suits thereon seek a common remedy,-that is, to have the property sold in satisfaction thereof, and bear such relations to each other as to come within the provisions of our statute as to intervention. Another objection is raised to the entire decree. There was no finding of facts by the court preliminary to its rendition. Our present statute requires a finding of facts in an equity case, as well as in one at law, tried by the court, but it does not follow that a decree will be reversed on appeal, for want of such finding, when it is not made to appear by the record that there was any request for a finding, or any objection raised on that account in the court below. To make such irregularity available on appeal, a timely request and objection at or before the time of the entry of the decree must be shown. There is nothing in the record tending to show such action in the case at bar. On the contrary, there are some recitals in the decree which tend to show that a finding of facts other than therein contained was expressly waived by all parties. The judgment will be affirmed. SCOTT and STILES, JJ., concur. DUNBAR, C. J., concurs in the result. (10 Wash. 388) SKAGIT COUNTY v. STILES. (Supreme Court of Washington. Dec. 26, 1894.) CONSTITUTIONAL LAW-STATUTE INVALID IN PART -CONSTRUCTION. Since that part of Sess. Laws 1889-90, p. 652, allowing a county to condemn lands for a right of way for a ditch, has been adjudged unconstitutional, and no other method of acquiring land for such purposes is provided, and other sections of the act providing for an appeal from the award of damages in such condemnation proceedings, and leaving the county without power to enforce the construction of the ditch if it acquires the land in any other way than by condemnation, evidence an intent on the part of the legislature to make the various sections of the act interdependent, the whole act is unconstitutional. Appeal from superior court, Skagit county; Henry McBride, Judge. Action by Skagit county against Fletcher Stiles. From a judgment for plaintiff, defendant appeals. Reversed. Million & Houser, for appellant. Geo. A. Joiner, for respondent. SCOTT, J. This was an application in the court below on the part of Skagit county, by its county treasurer, for a judgment against the defendant for a delinquent ditch assessment of the year 1891, together with the penalty, interest, and costs, and for an order of sale thereon. The assessment was sustained, and judgment rendered as prayed for, and the defendant appeals. One of the questions raised is as to the constitutionality of the law under which the proceedings were had. This law was before this court for consideration in Askam v. King Co., 9 Wash., 36 Pac. 1097, which case involved the right of the county to condemn lands for a right of way for a ditch; and it was held that the provisions of the act in that respect were unconstitutional, and that no such power was conferred. It is contended by respondent, however, that the remaining portions of the act are not affected by that decision; that the act has three distinct features: First, the securing of the right of way, which the decision aforesaid held void; second, the construction of the improvement; and, third, the apportionment of benefits and assessment of the cost of construction, which were not involved in the case aforesaid, and which, it is contended, should stand independent of the first proposition, as that only affected the securing of the right of way under the power of eminent domain; and that the right of way may still be obtained by purchase, in which case the provisions of the act are sufficient for the enforcement of such undertakings. In determining whether a part of an act can stand where another part has been held unconstitutional, a different rule as to presumptions is recognized from that which obtains where the whole act is being considered. The general rule that legislative acts are primarily presumed to be constitutional, and that all intendments are to be made in favor of the act to give it effect according to the intent of the lawmaking power, does not apply in such cases, as the upholding of a part of an act is not favored; and where a part has been held unconstitutional, and the remaining portion comes up for consideration as to whether it can stand as an independent proposition, the presumptions are generally against it, and it will not be sustained, unless "that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected." Cooley, Const. Lim. (5th Ed.) p. 212. When so construed, can the remaining portions of this act stand? It is plain from a reading of the act (Sess. Laws 1889-90, p. 652) that the only way provided for obtaining a right of way thereunder was by condemnation proceedings. Undoubtedly, however, a person could donate a right of way for such a ditch; but it is an entirely different question whether the commissioners have authority to acquire a right of way by negotiating a purchase. Under the provisions of this act, a petition must be presented asking for the improvement, and giving a general description of the proposed route. A bond conditioned for the payment of all costs if the prayer of the petition is not granted, or in case it is dismissed for any cause, must be filed therewith; whereupon there must be a view of the line of the proposed ditch, and a report thereon, and, if a finding is made in favor of the improvement, there must be a survey and definite location of the route, etc., and notice given, whereupon claims for damages may be made, and various objections raised. Section 17 authorizes an appeal from allowances made by the commissioners as com pensation for lands taken for the right of way, etc., by any person aggrieved; and, although subsequent sections seem to indicate that the right of appeal in such cases is limited to the owner of the land taken, we do not think such is the intent of the act. If the landowner has a right to appeal from an allowance which he considers too small, other persons to be assessed for the cost of the improvement should have the right to appeal from an excessive one, as they are certainly aggrieved thereby, and consequently come within the provisions of section 17. Now, aside from the fact that the act nowhere gives the county a right to purchase a right of way for such an improvement, it is apparent that, if the commissioners have such power independent of the act, there could be no appeal from the amount which they should agree to pay a particular landowner for a right of way. The legislature might have been willing to subject the petitioners for such improvements to the burden of paying the cost of the right of way where the same is obtained under the power of eminent domain, and the compensation adjudged by the commissioners, with the right of an appeal therefrom to the courts, but might have been unwilling to do so if such compensation was to be determined and allowed according to the arbitrary judgment of the commissioners. Furthermore, it is apparent, under the provisions of this act, that some expenses must be incurred in definitely locating the route before the commissioners could well proceed to obtain a right of way by purchase. While the petitioners must give a general description of the route over which the proposed improvement is desired to be constructed, it is not intended that it should be an exact one primarily, and the route only becomes definitely and conclusively established by the final survey, after it is determined to construct the improvement. Having gone thus far, and incurred the necessary costs for viewing the proposed improvement in order to pass upon its desirability, and having incurred the necessary expenses for definitely locating the line and making the plat, etc., if without the power of condemning a right of way the commissioners might be utterly unable to carry out the proposed undertaking, for the persons over whose lands the ditch was to be constructed might refuse to sell or to give the necessary right of way. Now, evidently, the legislature intended, in enacting this law, that the county commissioners should have power to enforce the construction of the ditch when its desirability had been determined upon in the primary proceedings, and it was not intended that the petitioners for such an improve ment should take the risk of having to pay the costs of the original proceedings in consequence of an inability to secure the right of way when the commissioners granted the petition. And yet they might have to do this if the commissioners had no power to acquire a right of way under the right of eminent domain. These provisions of the act would negative the idea that it was intended to allow the commissioners to procure the right of way by negotiating a pur. chase, even if they could do so independent of an express authorization, and we are of the opinion that they could not. Consequently, there is no more than a bare possibility that the remaining portions of the act can be operative under any circumstances. The undertaking could only be carried out in case a right of way was donated, and, in order to obviate the objection of possibly subjecting the petitioners to the costs of the primary proceedings in consequence of an inability to secure the right of way where the finding is in favor of constructing the improvement, such donation must be made in advance of the preliminary view of the proposed line; and there might be some difficulty in this, as a slight change of location thereafter, when it should be definitely determined, might transfer the line from the lands of one owner to those of a different owner, and, to avoid contingencies of this kind, it would be necessary to obtain gifts of the right of way from all landowners in the immediate vicinity of the line of the improvement as contemplated. This might possibly be done, but the fact that there is a possibility of constructing a ditch under the remaining portions of this act is not sufficient to except it from the presumption that the legislature would not have passed the parts of the act in question as independent propositions, or without conferring upon the county the right to condemn lands for a right of way; and, that part having been held unconstitutional, the whole act must fall with it. Reversed. DUNBAR, C. J., and HOYT, J., concur. STILES, J. (dissenting). I hold that the fact that the appellant petitioned for the construction of this ditch, and that it has been constructed in accordance with his own request, ought to estop him from raising the constitutional question discussed above. The ditch is there, and he is getting the benefit of it; and the people who did the work, and who would have a lien upon his land for the value of their labor thereon had his request been to them directly, have not been paid, and will not be, for the county is in no wise liable. |