proposition that, the judgment in the main action not having become final at the time the present action was instituted, and the court not having discharged the receiver, the latter is the proper and necessary party to bring and maintain this action, inasmuch as he is entitled, under the order appointing him the receiver, to the exclusive possession and custody of all the rents, issues, and profits accruing from the property in dispute in said action from the time he was so appointed.

the sum of $239 collected by him as rent of ever, that the plaintiff has no capacity to said real property since his appointment as maintain this action, and that the same was said receiver, and the said appellant collect- prematurely brought. The first of these obed additional rents of said real property injections to the action is founded upon the the total sum, as plaintiff is informed and therefore alleges, of $600 making $839 in all." On the 11th day of November, 1914, the action of the plaintiff here against Ida J. Dunham having been tried, judgment was rendered and entered adjudging that, since the 2d day of May, 1908, said Dunham held "and is holding" the land in dispute in trust, for the sole use and benefit of the said plaintiff, and awarding to the said plaintiff against said Dunham the sum of $2,379.62, on account of rents, issues, and profits coming into her possession from said real property, said sum including "the $239 so paid to Ida J. Dunham by said receiver and $300 of the $600 collected by her pending said appeal from said order appointing a receiver as above alleged. Thereafter, and on the 29th day of December, 1914, a judgment was duly made and entered in the Supreme Court of the state of California in the matter of said appeal from said order appointing said receiver, whereby said order was affirmed, and that the remittitur thereon was thereafter issued by the clerk of said Supreme Court, and was filed in the above-entitled superior court on the 1st day of February, 1915."

The demurrer objected to the complaint upon the grounds of misjoinder of parties defendant, the alleged incapacity of the plaintiff to maintain this action, that the court has no jurisdiction of the persons of the defendants, nor the subject of this action, for certain specified reasons, that the complaint is uncertain in specified particulars, and that there is a nonjoinder of parties defendant in that Malcolm Brown, as receiver, "is not made a party plaintiff to this action."

But we are unable to perceive how the receiver may be held to be authorized to maintain an action on the undertaking here declared upon. The undertaking does not run to the receiver, but to the plaintiff. The action on the undertaking is not one to recover moneys from Mrs. Dunham, the defendant in the main action and the appellant from the order appointing a receiver, but its purpose is to recover for any damage resulting from the possession of the property and the collection of its rents, issues, and profits by Mrs. Dunham and against which damage the defendants here undertook by their bond to indemnify the plaintiff. We cannot perceive wherein the receiver could claim any damage against the defendants here by reason of their undertaking.

[3] We are of the opinion, however, that the point made by the defendants that this action was prematurely commenced is well taken.

This action was commenced on the 25th

time of the entry thereof, or, to be more specific, the time within which the defendant in said action was legally authorized to appeal from the judgment therein entered against her did not expire until the 12th day, of May, 1915. Section 939, Code Civ. Proc. It follows that said action, within the contemplation of section 1049 of the Code of Civil Procedure, was still pending, after the entry of judgment therein, for at least the period of 6 months. The section just referred to provides:

day of March, 1915, but at that time the judgment in the main action had not become final, said judgment having been entered on the 11th day of November, and, while it has not been made to appear whether or not [1] Among the specific points made by the an appeal has been taken therefrom, the respondents in support of the judgment is right to appeal therefrom nevertheless exthat the court was without authority to ap-isted for the period of 6 months from the point a receiver in the action of Borges v. Dunham, and that, therefore, the appellant cannot maintain the present action, because, as counsel states the proposition, "the order appointing a receiver was void, and being void the bond must fail." But a review of this question by this court in this action is foreclosed by the decision of the Supreme Court affirming the order appointing the receiver concerned here. Borges v. Dunham, etc., 169 Cal. 83, 145 Pac. 1011. While it is true that the record on appeal from said order was such as to preclude a review of the merits of the action of the court in making it, and the decision was therefore made to rest on the legal presumption of the due regularity of the proceeding culminating in the making of the order, yet the affirmance of It is obvious that a judgment rendered and the order involves a conclusive determina- entered in an action cannot become final so tion of the question and is consequently res long as the action is pending within the adjudicata. meaning of the foregoing section. See Naftz[2] The defendants further contend, how- ger v. Gregg, 99 Cal. 83, 33 Pac. 757, 37 Am.

time of its commencement until its final deter"An action is deemed to be pending from the mination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied."

St. Rep. 23; In re Blythe's Estate, 99 Cal. 472, 34 Pac. 108; Story v. Story I. C. Co., 100 Cal. 41, 34 Pac. 675; Brown v. Campbell, 100 Cal. 635, 646, 35 Pac. 433, 38 Am. St. Rep. 314.

At the time of the execution of the undertaking the trial on the merits had not been completed, and consequently no judgment entered for the plaintiff. The issue submitted by the plaintiff by his complaint was whether the legal title to the land in dispute had been and was held by the defendant in trust for his benefit. The defendant answered the complaint denying specifically its allegations, and with her answer filed a crosscomplaint in which she prayed for a decree quieting her title to the property described in the complaint. After issue joined, the plaintiff, upon notice duly given, applied to the trial court for an order for the appointment of a receiver to receive the rents, is

Now, the bond upon which the present action is founded, it will be noted, imposes upon the defendants two several and distinct obligations, viz.: The one whereby they have bound themselves in the sum of $300 to indemnify the plaintiff in this action for the costs on appeal, and the other, whereby they have bound themselves in the sum of $1,000 to hold the plaintiff free from loss, in the event that he should obtain judgment in the main action against the defendant therein, by reason of the moneys collected by the lat-sues, and profits of the real property in conter pending the appeal from the order as rents, issues, and profits growing out of the land. Whether this view of the undertaking be correct or not must depend, of course, upon the intention of the sureties, and this proposition must in turn be determined by a construction of the instrument.

[4, 5] While the relief asked by the plaintiff in this action is confined or limited by the complaint to the damage alleged to have been suffered by the plaintiff by reason of the rents, etc., coming into the hands of Mrs. Dunham pending the appeal from the order appointing a receiver, we may, nevertheless, express the opinion that the plaintiff is entitled to maintain an action in the proper forum upon the undertaking in so far as it obligates the defendants (sureties) to reimburse him for the costs on the appeal from said order. The receiver was appointed upon the application of the plaintiff, and, in the absence of a showing of an abuse of authority by the court in making the order of appointment, the presumption is that the appointment of a receiver was in all respects proper. The plaintiff was required, of course, to defend on the appeal from the order appointing the receiver the action of the trial court in that regard. He was necessarily the respondent in that appeal and, said order having been affirmed on appeal, he is entitled to be reimbursed by the appealing party-the party vanquished on the appeal-for the necessary or legal costs incurred by him in so defending the order.

troversy. The time for hearing the application was fixed for the day on which the action had been set down for trial, and, after taking some testimony, the court made the order appointing a receiver. Borges v. Dunham, 169 Cal. 83, 145 Pac. 1011. The question, then, at issue at the time the order for the appointment of a receiver was made, was whether the plaintiff was entitled to a cancellation of his deed to the property to the defendant and the property declared to be held in trust by the latter for the benefit of the former, or whether both the legal and equitable title to the property was in the defendant and she entitled to a decree quieting said title. It hence follows that the plaintiff, at the time of the appointment of the receiver and at the time of the execution of the undertaking, was not entitled to the possession of the property, nor to the rents, issues, and profits thereof.

Now, it will be noted that the undertaking, so far as it relates to the possession of the land and the collection of the rents, issues, and profits thereof by Mrs. Dunham, pending the decision on the appeal from the order appointing the receiver, provided, among other things, as follows:

"That if the said appellant does not make such payment within 30 days after the filing of the remittitur from the Supreme Court of the state of California, to which said appeal is taken, judgment may be entered upon the motion of the respondents, and in their favor, against the undersigned sureties for the said amount of said judgment, together with interest which may be due thereon, and the damages and costs which may be awarded against the appellant on ap peal."

The meaning of the foregoing language is, it must be conceded, very obscure; but, considering that, at the time of the execution of the undertaking, there was pending no appeal the disallowance of which by the Supreme or appellate court would result in a

[6] But, as stated, our conclusion is that this action upon that part of the undertaking referred to is premature, or, in other words, that the plaintiff was not, at the time of the commencement of the present action, legally authorized to maintain it. The conclusion thus declared is inspired by the conviction, based upon a construction of the undertaking by the light of all the circumstanc-judgment for any amount of money or a es surrounding its execution, that it was not the intention that the obligation of the undertaking upon which the plaintiff wholly relies for a recovery was to be discharged until there had been a judgment entered in favor of the plaintiff and the same had become

money judgment of any sort, we take it that what the sureties meant by that language is this: That they would not only guarantee the payment of the costs on appeal from the order appointing a receiver, but that, if a final judgment on the merits was eventually

demnify him against any damage which might result to him by reason of the fact that, pending the determination of the appeal from the order, the defendant Mrs. Dunham was permitted to remain in possession of the property and to collect and retain the rents, issues, and profits thereof. This, it appears to us, is the correct interpretation of the language of the undertaking, above quoted, and of the intention of the sureties; for the only appeal actually pending when the undertaking was made and delivered was the appeal from the order 'appointing a receiver, and obviously there could result from said appeal no judgment other than one affirming or reversing the order, except in so

far as the awarding of costs on said appeal may be treated as a judgment for an amount of money, and this we do not think can be truly said to be the case. Besides, as to the costs on said appeal, the undertaking, as before suggested, makes a separate and distinct provision.

The demurrer was, in our opinion, properly sustained, and the judgment is affirmed.

We concur:

NETT, J.

CHIPMAN, P. J.; BUR

(89 Wash. 587)
OECHSLI et ux. v. WASHINGTON

ELLIS, J. Action to cancel a deed of a

right of way for an electric railway because of an alleged failure of the defendant, as successor in interest to the grantee, to comply with the terms of the grant. Plaintiff's also seek to enjoin the maintenance or operation of any railroad on the right of way and to recover damages for injury to the land caused by the construction of a roadbed across it.

Omitting acknowledgment and description, the deed reads:

"Know all men by these presents: That Ben Oechsli and Christiana Oechsli, husband and wife, in consideration of the sum of $1.00 to them in hand paid, and the benefits to accrue to them by reason of the operation of an elecELEC-tric railroad over the lands herein described, do hereby grant and convey to George A. Robinson, for the construction, operation and maintenance his heirs, successors, or assigns, a right of way of a railroad; said right of way to be thirtyfive feet wide on each side of center line of said railroad as the same shall be definitely located and constructed over and across the following described premises, to wit: [Describing property and location of right of way.]

TRIC RY. CO. (No. 13037.) (Supreme Court of Washington. Feb. 15, 1916.) 1. RAILROADS 82-RIGHTS OF WAY-DEEDS -CONSTRUCTION.

A right of way deed for an electric railroad declared that the right granted should be held and possessed by the grantee or his heirs and assigns, so long as the railroad should be maintained on the land, but that if the railroad should be abandoned all right should cease and the lands revert to the grantor or his heirs or assigns, but such right should not determine, in any event, prior to the expiration of the period of two years from the date thereof. Held, that the last clause was inserted for the grantee's benefit, being intended to preclude forfeiture even for a failure to commence work on the railroad for two years after the execution of the deed, and so the right of way could not be forfeited because the entire road had not been constructed at the expiration of two years and had not at that time been electrified.

Where a deed for a right of way for an electric railroad provided for forfeiture in case of abandonment, unreasonable delay in electrifying the road does not warrant forfeiture; the road having been constructed and operated by steam.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 213-219; Dec. Dig. 82.]

"The right hereby granted shall be held and possessed by the party of the second part, heirs, successors, and assigns so long as he, or his successors, heirs, or assigns shall maintain and operate such railroad over and across the lands aforesaid, provided, however, that if said railroad shall be abandoned all right hereunder shall cease and the right in and to the lands hereby granted shall revert to the grantor herein, or his heirs or assigns without notice or declaration of forfeiture and the same as if this contract had not been made, but the rights hereby granted shall not determine in any event prior to the expiration of the period of two years from the date hereof.

"The right of way to be properly fenced on both sides and provision made for station at or near county road, if demanded, to have half acre of additional land for station purposes. "Witness our hands and seals the 25th day of March, 1910. Ben Oechsli. "Christiana Oechsli."

It is conceded that the defendant is a public service corporation and has acquired the interest of Robinson. It has constructed a railroad from Chehalis for a distance of about

3. RAILROADS 82 RIGHTS OF WAY-71⁄2 miles running through the plaintiffs' land,

EJECTMENT.

Where a railroad company enters upon and with knowledge of the landowner constructs its tracks over his property, the landowner can only recover damages, and cannot eject the corporation from the land. Therefore, where a railroad company under a franchise to construct an electric road constructed its right ci way

which lies about 4 miles from Chehalis. It has acquired a right of way some distance further, and the railroad is still in process of construction. For about three years trains have been operated by steam over the road through plaintiffs' land mainly in connection

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with construction work, but whatever freight, forfeiture, an injunction, and for damages to is offered is hauled for hire. Poles for elec- the land occasioned by the grading of the trifying the road have been set from Chehalis roadbed. None of these remedies is available through plaintiffs' land and have been dis-under the deed for any delay in any detail of tributed for setting to a considerable dis- the work, but only for an abandonment of the tance further. Copper plates are placed at railroad. The failure to electrify the road the rail joints for use in operating the road within a reasonable time, though it might by electricity. Of the plaintiffs' land one- be made ground for an action in damages half acre selected by them has been fenced for the additional servitude imposed by the for a station, and a switch has been construc- use of steam as a motive power instead of ed thereon. The entire right of way across electricity, is no ground for a forfeiture of plaintiffs' land has been fenced. Defendant the grant, nor for an injunction, and obviousfor a considerable time has been negotiating ly neither augmented nor diminished the for electrical current with a power company physical damage to the land occasioned by which has a high-power transmission line grading the roadbed. The deed does not running alongside the road as far as the provide for a forfeiture because of any deplaintiffs' land, but no contract has yet been lay in electrifying the road. The failure consummated. The evidence shows that in to employ electricity as a motive power was order to use this current it would be neces- no evidence of an abandonment of the railsary at great expense to install transformers road, which was the only condition for a forat substations to reduce the voltage. It is feiture. There was no evidence whatever of fairly deducible from the evidence that the such abandonment. Whether therefore the business which the road would get over the deed be viewed as a grant with a condition short distance to which it has been construct- subsequent, or of an estate limited upon a ed would not justify the expense of electrify-contingency, can make no difference. If viewing it at the present time, but the defendant's ed as the former, the condition is in process president testified that it is the intention to of performance. If as the latter, the condo so when the road shall have been complet-tingency has not arisen. Mouat v. Seattle, ed from Chehalis to Onalaska, where there Lake Shore & Eastern Ry. Co., 16 Wash, S4, is a large mill, and expressed the belief that this would be done within the next year and a half. He also testified that the work has been much delayed by financial conditions and by suits in condemnation for completing the right of way.

47 Pac. 233. Neither was there any evidence of an abandonment of the intention ultimately to electrify the road, even if the deed could be so construed as to make the abandonment of that intention a ground of forfeiture. All of the evidence pointed the other way. The setting of the poles and the placing of copper plates for that purpose verify the president's testimony that such is the ultimate purpose. There was no evidence from which the jury could have inferred an abandonment of that purpose, By the terms of the deed, abandonment, not mere delay, is the only ground of forfeiture.

At the close of the evidence, the court, on defendant's motion, withdrew the case from the jury and dismissed it. Plaintiffs appeal. [1] Appellants claim that the clause in the deed, declaring that the “rights hereby granted shall not determine in any event prior to the expiration of the period of two years from the date hereof," fixes a limitation within which the road must be built and in [3] In any view of the case, the respondent operation to avoid a forfeiture. We think is certainly in no worse position than it would not. This clause, when read in context, was have been had it entered upon the appellants' clearly inserted for the grantee's benefit. It land and constructed the railroad without was intended to qualify the immediately pre- any deed but with their knowledge. Being a ceding provision, that “if said railroad shall public service corporation invested with the be abandoned all rights hereunder shall cease power of eminent domain, it could not be and the right in and to the lands hereby ejected from the land nor enjoined from the granted shall revert to the grantor herein," operation of its road. In such a case, under etc. The provision as a whole makes plain the rule to which this court is committed, the the intention of the parties that the only appellants' only remedy would be to recover ground for a forfeiture shall be the abandon- damages in the value of the land taken and ment of the railroad. The final clause was for injury to the land remaining. Kakeldy v. intended to preclude even the failure to com- Columbia & P. S. R. Co., 37 Wash. 675, 80 mence work within two years from being Pac. 205; Kincaid v. Seattle, 74 Wash. 617, construed as an abandonment. It is a limita-134 Pac. 504, 135 Pac. 820; Thorberg v. tion on the right to declare a forfeiture, not Hoquiam, 77 Wash. 679, 138 Pac. 304; Doma limitation on the grant.

[2] It is next contended that the grant was for an electric railroad, and that there was sufficient evidence to take the case to the jury on the question whether a reasonable time had elapsed in which to electrify the road. This question is interesting, but for

rese v. Roslyn, 154 Pac. 140. But the respondent here entered and constructed its road under a grant of the right of way. Obviously and a fortiori, if it were conceded that it had violated the terms of the grant by permanently abandoning the intended use of electricity for that of steam, the appellants'

MORRIS, C. J., and MOUNT, FULLER-jury, as neither side claimed one or objected TON, and CHADWICK, JJ., concur.

BAUSMAN, J. [1] The service of this appeal was after the signing, and before the PARKER, J. (dissenting). I am unable te entry, of the decree. Its filing was after view the facts as they are viewed by my that entry. The filing being a part of the Brethren in the foregoing opinion. I think taking of an appeal under our statute, we the representations made by the appellant hold that there was here an appeal after, were false and such as to entitle respondent and not before, a judgment. A motion to to avoid the sale contract, in view of appel

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