Dunsmuir v. Port Angeles Gas, Water, Elec. Light & Power Co.

• Citation: 24 Wash. 104,63 P. 1095
• Court: United States State Supreme Court of Washington
• Decision Date: 26 February 1901
• Parties: DUNSMUIR v. PORT ANGELES GAS, WATER, ELECTRIC LIGHT & POWER CO. et al.

63 P. 1095

24 Wash. 104

DUNSMUIR v. PORT ANGELES GAS, WATER, ELECTRIC LIGHT & POWER CO. et al.

Supreme Court of Washington

February 26, 1901

Appeal from superior court, Clallan county; James G. McClinton Judge.

Action by James Dunsmuir against the Port Angeles Gas, Water Electric Light & Power Company and others to foreclose a mortgage. From a judgment for plaintiff, defendant A. P Burwell appeals. Modified.

Ira Bronson and R. C. Wilson, for appellant.

W. L Marquardt and Geo. C. Hatch, for respondent.

ANDERS J.

The respondent moves to strike appellant's brief in this case for the alleged reasons: (1) That appellant has filed to print in his brief the findings of fact and conclusions of law made by the lower court; and (2) that appellant has also failed to refer in his brief to the record by page, as required by the rules of this court. Rule 8 of this court (40 P. x.) provides that briefs shall contain a clear statement of the case, so far as deemed material by the party, with reference to the pages of the transcript for verification; and that in equity causes and actions at law tried by the court without a jury the party or parties appealing shall print in their brief the findings of fact, with the exceptions thereto, on which any question is sought to be raised by them on the appeal. Although these provisions have not been literally complied with by appellant, they have been substantially observed, and the motion to strike is therefore denied.

This action was instituted by the respondent to foreclose a mortgage on a system of waterworks in Port Angeles, alleged to have been executed to respondent by the Port Angeles Gas, Water, Electric Light & Power Company, Limited, to secure the payment of a promissory note made by said company for $20,000, dated February 21, 1891, and payable one year thereafter; and also to foreclose a mortgage on certain real estate situated in Port Angeles, executed by defendants C. E. Mallette and wife, as further security for the payment of said promissory note. The complaint alleges the due incorporation, under the laws of this state, of the Port Angeles Gas, Water, Electric Light & Power Company, Limited; that on the 21st day of February, 1891, said corporation was the owner of, and engaged in operating at Port Angeles, Wash., a system of waterworks, for the purpose of supplying the inhabitants of Port Angeles, a municipal corporation of the fourth class, with water, and which said system of waterworks consisted of a reservoir or dam on a stream of water flowing through said town, commonly known as 'Frazier's Creek,' with pipes or mains leading therefrom through, over, and under the streets, alleys, and other public places of said town to the dwellings of the inhabitants thereof, through which pipes and mains said water flowed by gravity,--together with the right to said flowing water in said stream by appropriation, and a franchise from said town permitting it to so lay its pipes and mains and operate said system of waterworks therein, with certain tools and fixtures, altogether constituting its system of waterworks or plant; the making and delivery of the said note and the executing of the said mortgage, copies of which note and mortgage are set out in full therein; that said mortgage was duly recorded in the office of the auditor of Clallam county, Wash., on March 7, 1891, and indexed direct and reverse; that the plaintiff paid taxes levied on said water plant, aggregating the sum of $2,931.40, for the protection of his mortgage lien; that no part of said note, except $5,000 of the interest thereon, has been paid, and that no part of said taxes has been paid, that the Angeles Water Company is a corporation duly organized under the laws of this state; and that said Angeles Water Company and the defendant A. P. Burwell, as trustee, claim some interest in the property covered by plaintiff's mortgage; and that said claim, if any they have, is subordinate to the lien of plaintiff's mortgage. Judgment is demanded in the complaint against the Port Angeles Gas, Water, Electric Light & Power Company, Limited, for the amount due on said note, and for said taxes, interest, attorney's fees, and costs; that the said mortgage be adjudged to be a first lien on all of said mortgaged property, and that the same be sold, and the proceeds thereof be applied in payment of the amount due plaintiff. The mortgagor, the Port Angeles Gas, Water, Electric Light & Power Company, Limited, was served with summons, and defaulted, and the Angeles Water Company seems to have made no defense. The defendant Burwell, in his answer, denied the allegations of the complaint, except that the two defendant companies were corporations, and alleged affirmatively certain facts showing the invalidity of the plaintiff's note and mortgage, and averred, in effect, that in June, 1892, the Angeles Water Company became the owner of the waterworks, rights, and privileges of the Port Angeles Gas, Water, Electric Light & Power Company, Limited, mentioned in plaintiff's complaint, by purchase from one C. E. Mallette, who purchased the same from the last-mentioned company; that the said Angeles Water Company issued 40 bonds of $1,000 each, and, to secure the payment thereof, executed and delivered to a trustee a certain deed of trust or mortgage of the property described in plaintiff's complaint, and other property in said deed of trust or mortgage described; that the said trust deed or mortgage was executed as a chattel mortgage, and was recorded in the office of the auditor of Clallam county, both in the records of real-estate mortgages and in the records of chattel mortgages; that said bonds were delivered as collateral security for the payment of certain notes made by said Mallette, and sold for the benefit of the said Angeles Water Company, and that the proceeds thereof were received by said company; that none of said notes had been paid, and that no part of said bonds had been paid, except the interest thereon up to June 1, 1894; that the Angeles Water Company surrendered possession of the property mentioned in plaintiff's complaint and in the said trust deed or mortgage to the trustee; that the said Angeles Water Company duly appropriated the water of said Frazier's creek after it purchased said property; that none of the purchasers of said bonds or of said notes, or any agents or attorneys of any of said purchasers, had, at the time of such purchase, any knowledge or notice of plaintiff's mortgage, and that the trustee named in said deed of trust or mortgage had no knowledge or notice of the mortgage of plaintiff at the time he received said trust deed or mortgage. And the defendant Burwell demanded judgment against the Angeles Water Company for the amount due on said bonds, and for the foreclosure of said trust deed, etc. The new matter pleaded in the answer was denied by the reply. The plaintiff obtained judgment against his mortgagor in accordance with the prayer of the complaint, and a decree foreclosing the mortgage as a paramount lien on the property described in the complaint, together with the usual order of sale. Judgment was also rendered in favor of defendant Burwell, as trustee, and against the defendant Angeles Water Company, establishing and foreclosing the trust deed. From the judgment and decree in favor of the plaintiff the defendant Burwell has appealed.

It appears from the record that the Port Angeles Gas, Water Electric Light & Power Company, Limited (hereinafter designated as the 'first company') was incorporated under the laws of the state of Washington in the year 1890. In November, 1890, the town of Port Angeles granted to C. E. Mallette, his associates, successors, and assigns, by ordinance, the right for 25 years to construct, operate, and maintain waterworks in said town, and to supply the town and its inhabitants with water, with the right to lay, relay, connect, disconnect, and repair its mains and pipes along, through, under, and over the streets, alleys, wharves, and other public places in said town; and it was provided in the ordinance that the town should have the right to purchase the plant after five years at a price to be fixed by appraisers. Prior to February 21, 1891, the date of the respondent's note and mortgage, said franchise was transferred by said Mallette to the first company, the respondent's mortgagor. On said February 21, 1891, the first company had commenced the construction of its waterworks, the same being the only water plant ever constructed at Port Angeles. On that date the mains and pipes had been purchased for the plant, and were in the possession of the company, but only a portion of the mains had been laid; and the dam subsequently constructed on Frazier's creek for the purpose of storing the water of said stream and of diverting it into the company's mains had not then been erected, although the company had made preparation for its construction. This dam was constructed some distance south of the corporate limits of the town, upon a section of school land owned by the state, and no other dam has ever been constructed or used for the purpose of supplying water for the plant by either of said companies. No permission or authority was ever obtained, in writing or otherwise, from the state, for the construction or maintaining of said dam, or for laying or maintaining the pipe line of said waterworks through said school lands. The pipe line, when constructed, extended northerly from the dam and said school land over the premises of private parties. No deed of right of way was ever obtained by the first company from any of the persons whose lands were crossed by the pipe line. No proceedings were ever had to condemn the water in said stream, or the right of way for the...