Cascade Public Service Corp. v. Railsback

• Decision Date: 16 July 1910
• Citation: 59 Wash. 376,109 P. 1062
• Parties: CASCADE PUBLIC SERVICE CORPORATION v. RAILSBACK (NISQUALLY POWER CO., Intervener.
• Court: Washington Supreme Court

109 P. 1062

59 Wash. 376

CASCADE PUBLIC SERVICE CORPORATION v. RAILSBACK (NISQUALLY POWER CO., Intervener.

Supreme Court of Washington

July 16, 1910

Department 2. Appeal from Superior Court, Pierce County; C. M Easterday, Judge.

Action by the Cascade Public Service Corporation against Fannie M Railsback, as executrix, and the Nisqually Power Company intervener. From a judgment for defendants, plaintiff appeals. Affirmed.

George M. Sinclair, for appellant.

Stallcup & Keyes and Hayden & Langhorne, for respondents.

RUDKIN, C.J.

On the 10th day of July, 1905, the defendant Warren entered into a contract with the plaintiff Corbett, whereby, in consideration of the sum of $1,250, the former agreed to convey to the latter 'A strip and parcel of land one hundred feet wide, hereafter to be surveyed in the northwest quarter of the southeast quarter, and the southwest quarter of the northeast quarter and lot two of section four township fifteen north, range four east of the Willamette Meridian. * * * Said strip of land to be used for a right of way for a water flume to convey the waters of the Nisqually river from a point of diversion to be selected by A. C Corbett, above and south of said premises to some point on said river either in or below said premises, said water so conveyed to be used for power purposes for generating electricity or other power, as the said A. C. Corbett, his heirs or assigns may desire.' One hundred dollars of the purchase price was paid at the execution of the contract, and the balance was to be paid on the execution of a deed within 30 days thereafter. On the 5th day of August, 1905, an additional $250 was paid on the purchase price, and the time for full and complete performance of the contract was extended for a period of 60 days from and after the 10th day of August, 1905. The complaint alleged a survey and selection of the right of way, a tender of full performance of the contract on the part of plaintiff on the 7th day of October, 1905, and again on the 4th day of December, 1905, a refusal to perform on the part of the defendant, and prayed for specific performance. The Cascade Public Service Corporation was later substituted as plaintiff, as successor in interest to the original plaintiff, and the Nisqually Power Company intervened as successor in interest to the defendant. At the time this contract and extension were entered into the defendant Warren was an occupant of the land over which the proposed right of way was granted, under the homestead laws of the United States, and did not make his final proof until the 28th day of September, 1905. The court below seems to have decided the case against the plaintiff on the pleadings, holding that the contract between Warren and Corbett was in contravention of the laws of the United States and void, but the case was nevertheless heard on the facts, apparently for the purpose of making a record for this court. At the close of the trial a final judgment was entered in favor of the defendant and intervener, from which this appeal is prosecuted.

Section 2290 of the Revised Statutes of the United States (U. S Comp. St. 1901, p. 1389) provides that a person applying for the entry of a homestead claim shall make affidavit that, among other things, 'Such application is made for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use or benefit of any other person.' Section 2291 prescribes the time and manner of making final proof, and requires the applicant to make affidavit, 'That no part of such land has been alienated, except as provided in section...