Bannister v. Cavanaugh

• Decision Date: 13 December 1933
• Docket Number: 24578.
• Citation: 175 Wash. 451,27 P.2d 695
• Court: Washington Supreme Court
• Parties: BANNISTER v. CAVANAUGH et al.

27 P.2d 695

175 Wash. 451

BANNISTER v. CAVANAUGH et al.

No. 24578.

Supreme Court of Washington

December 13, 1933

Department 1.

Appeal from Superior Court, King County; Alex Caplan, Judge.

Suit by George C. Bannister against Fred B. Cavanaugh and wife and others. From an unsatisfactory judgment in plaintiff's favor, plaintiff appeals.

Affirmed.

Earl G Rice, of Seattle, for appellant.

Landon & Landon, of Seattle, for respondents.

MITCHELL Justice.

Fred B Cavanaugh and his wife were the owners of coal lands in King county, Wash., consisting in part of the E. 1/2 of the S.E 1/4 of S.E. 1/4 of N.E. 1/4 of section 26, township 23 north, range 5 East, W. M., upon which five acres just described there was a developed coal mine equipped with mining machinery and implements. In July, 1931, they leased their coal lands to F. W. Cordes and Lowther Ferris who, among other considerations, were to pay a royalty on all coal mined. They also agreed to build and gravel a road from the mine to the county road. Upon taking possession, the lessees organized a corporation named Cavanaugh Coals, Inc., through which they entered into a contract with George C. Bannister to construct the road. He built the road, and it was accepted. The cost of construction was $2,600, upon which the sum of $1,200 was paid. Being unable to collect the balance on demand, he, in due time, filed a notice of claim of lien on all the lands in the vicinity of the developed coal mine belonging to Cavanaugh and wife, and also on certain machinery in the coal mine and certain other personal property about the mine.

He then brought this suit against Cavanaugh and wife, Cordes and Ferris, and Cavanaugh Coals, Inc., a corporation, to recover judgment for the balance due for building the road and to foreclose the lien against the property described in the lien. It seems that none of the defendants appeared in the action except Fred B. Cavanaugh and his wife. Before the trial took place, $50 more was paid on the claim, leaving $1,350 due. Judgment was entered in favor of the plaintiff, from which he has appealed, claiming that the relief given him was inadequate.

A purported statement of facts must be and it is stricken, on motion of respondents, because not filed in the superior court in time, and because, as filed, it is manifestly incomplete and is not certified in the manner required by Rem. Rev. Stat. § 391. Indeed, in his reply brief appellant says: 'We are not seeking a review of the testimony. We rest our case on the findings of fact made by the trial court.'

Respondents owned 211 acres of land, not all contiguous; but the court found that the road is beneficial or appurtenant to only five acres hereinBefore described.

Appellant's first assignment is that 'the court erred in refusing to find that said road is appurtenant and adjoining to all of the 211 acres.' In the absence of a statement of facts, however, we are not at liberty to question the findings. There is no evidence here by which they may be tested or judged.

It is also assigned that the court erred in signing conclusion of law No. 2. Admitting that it is inconsistent in some respects with the findings and judgment, still that is of no controlling importance. In Gerhard v. Worrell, 20 Wash. 492, 55 P. 625, 626, we said: 'While it is proper practice to make separate conclusions, yet the findings of fact must be considered as controlling the conclusions of law, and the judgment or decree must accord...