Lanham v. Forney, 27122.

• Decision Date: 11 August 1938
• Docket Number: 27122.
• Citation: 81 P.2d 777,196 Wash. 62
• Parties: LANHAM v. FORNEY et al.
• Court: Washington Supreme Court

81 P.2d 777

196 Wash. 62

LANHAM v. FORNEY et al.

No. 27122.

Supreme Court of Washington

August 11, 1938

Department 2.

Appeal from Superior Court, Stevens County; D. H. Carey, Judge.

Suit for an injunction by G. B. Lanham against J. J. Forney, a widower, and others. From a judgment dismissing the suit plaintiff appeals.

Affirmed.

Henry M. Kaye, of Chewelah, for appellant.

John T Raftis, of Colville, for respondents.

ROBINSON Justice.

This case come to the court upon stipulated facts. From the stipulation it appears, in substance, that, in 1929, the town of Springdale, a Washington municipality of the fourth class by ordinance, granted to J. P. Lanham, his heirs, executors administrators, and assigns the right to carry on a general water service business, and to that end to lay, maintain, and operate, in and under its streets, alleys, and highways, the necessary pipes and conduits. The water system was installed shortly thereafter at an approximate expense of twenty-five hundred dollars and has ever since been in operation. G. B. Lanham, plaintiff below, appellant here, has succeeded to the rights of the original holder of this franchise.

In 1905, W. Gillingham owned property abutting on the east side of First street, in Springdale. There was a natural spring on this property, and he had obtained a permit from the town council to lay a pipe across First street to carry water to other property owned by him on the west side of the street. The pipe was installed, and is still in place. The respondents subsequently became the owners of the Gillingham properties just mentioned, and for more than fifteen years have operated a garage and service station thereon and during that time have used the water conveyed from the spring across the street through the pipe originally installed by Gillingham.

In May, 1935, the respondents, having acquired property north of Harrison avenue and north of their property on which the spring is located, applied to the council of Springdale for permission to lay water pipes across Harrison avenue to carry water from the spring to their dwelling house on the north side of Harrison avenue. A permit was granted and a pipe was laid in 1935, and since that time they have used the water conveyed through this pipe for domestic purposes.

At the time the permit last mentioned was secured, J. J. Forney and Howard Forney, two of the respondents, were, respectively, mayor and clerk of the town of Springdale. Regarding this permit, it is stipulated:

'That the permit above referred to was not issued in any regular session of the Town Council of the Town of Springdale, Washington; that in May, 1935, several members of said council being either ill or absent from Springdale, Washington, it was not possible to hold a session of said council, and that J. J. Forney, in lieu thereof, secured a written permit from the members of said town council who were members of the street committee of said town council; that said street committee was empowered and authorized to handle matters pertaining to the use of streets in said town of Springdale, Washington; that plaintiff G. B. Lanham was a member of said town council in 1935, and refused to sign said permit when requested to do so by said J. J. Forney; that said plaintiff G. B. Lanham admits having seen said signed permit; that said permit was never signed by the mayor or town clerk of the town of Springdale and no showing was ever made as to the necessity of such permits being signed by the mayor and clerk or either of them; that said permit was never incorporated in the minutes of said town council but was left with other papers in the care of the town clerk, and the present whereabouts of said permit is unknown; that no objection has ever been made by said town of Springdale, Washington, as to the manner or form of issuing said permit for the use of said streets by defendants, as aforesaid, and that the fact of giving such permit, as above stated, was known to and discussed by members of said town council in regular session, and no action was ever taken one way or the other in regard to same, other than stated above.

'That in giving said permit, as above stated, no length of time was mentioned therein within which said streets could be used for laying said pipes, and that said permit contained no express provision as to the duty or responsibility of defendants in regard to maintaining the said streets in proper condition.'

It is not claimed that the appellant's franchise was an exclusive one, and it is stipulated that the respondents have never attempted to sell water or to furnish water to others, but have used the water pipe across First street strictly to supply water to their own garage and service station, and the water pipe across Harrison avenue to supply water for their own domestic use.

This suit was brought to enjoin the respondents from further using said water pipes. The complaint purports to state two causes of action, the first, upon the theory that the appellant had a franchise,...