Linne v. Bredes

• Decision Date: 05 September 1906
• Citation: 86 P. 858,43 Wash. 540
• Parties: LINNE v. BREDES.
• Court: Washington Supreme Court

86 P. 858

43 Wash. 540

LINNE v. BREDES.

Supreme Court of Washington

September 5, 1906

Appeal from Superior Court, King County; Geo. E. Morris, Judge.

Action by Frank J. Linne against H. T. Bredes. Judgment for plaintiff. Defendant appeals. Reversed and remanded with instructions.

Larrabee & Wright, for appellant.

Horace A. Wilson, for respondent.

CROW J.

This action was instituted by the respondent, Frank J. Linne against the appellant, H. T. Bredes, to recover damages on a breach of contract. The respondent alleged that on December 5, 1904, he entered into a written agreement with the appellant for the purchase of certain personal property consisting of an ice plant, and a lease on realty in the city of Seattle; that by said contract appellant expressly promised to pay all liens and incumbrances of every kind and nature which might be against said property; that respondent fully performed said contract on his part; that upon entering into possession he discovered that the city of Seattle had cut off the water supply from said ice plant; that said property was incumbered with delinquent water charges amounting to $426.95; that said city, acting under the provisions of § 349 of ordinance No. 4443, refused to supply said ice plant with water until said delinquent charges were paid; that respondent demanded of appellant that he pay said delinquent charges; that appellant refused to do so, and that respondent, to secure a supply of water, was compelled to, and did, pay the same. Appellant's demurrer to this complaint being overruled, he answered, making certain denials and pleading as an offset a claim of $500 for services rendered by him to respondent. Upon trial to the court without a jury, findings of fact were made in accordance with the allegations of the complaint. On the issue raised by the affirmative defense, the court found that there was no express or implied contract between respondent and appellant by which respondent employed appellant to perform any services, but that all services performed by appellant were voluntary and without the expectation of payment or reward. On these findings judgment was entered in favor of the respondent for $426.95 and costs, and this appeal has been taken.

Appellant has excepted to the findings made by the trial court, and has also excepted to its refusal to make specific findings requested him. Most of his assignments of error are based on these exceptions. Without discussing the evidence, we will state that, after a careful examination of the same, we conclude that it sustains the findings made. It appears from the evidence that the appellant, Bredes, was not the former owner or occupant of the property two had contracted the liability to the city for the delinquent water rents. He had but recently obtained an assignment of the legal title from the former occupant who had made such default.

Having adopted the findings made by the trial court, the only question for us to consider is whether they sustain the judgment entered. This depends upon the further question whether the delinquent charges were an incumbrance upon the property. An incumbrance has been correctly defined to be 'any right to, or interest in, land which may subsist in third persons, to the diminution of the value of the estate of the tenant, but consistently with the passing of the fee.' Also as 'a burden upon land depreciative of its value, such as a lien, easement, or servitude, which, though adverse to the interest of the landowner, does not conflict with his conveyance of the land in fee.' This court approved these definitions in Green v. Tidball, 26 Wash. 338, 67 P. 84. Respondent, having cited said case, also directs our attention to ordinance No. 4443 of the city of Seattle, entitled: 'An ordinance to fix, regulate and control the use and price of water supplied by the city water works, and providing penalties for the violation thereof,' of which § 349 reads as follows: 'All water rates shall be charged against the property on which it is furnished and against the owner thereof, and if for any cause any sums owing therefor become delinquent the water shall be cut off, and in no case shall it be turned on to the same property until all such delinquencies shall have been paid in full. No change of ownership or occupation shall affect the application of this section.' Respondent insists that said section confers upon the city of Seattle the right to refuse water to an occupant of property until all delinquent water charges against said property that may have been incurred by a prior owner or occupant have been paid. If he is right in this contention, the delinquent water charges constituted an incumbrance which the appellant had agreed to pay, and the respondent is entitled to recover in this action. The test of appellant's liability, therefore, is the right or power of the city to adopt such a rule by ordinance, and whether such regulation is reasonable. We have not discovered, nor have we been cited to, any express statutory authority for such an ordinance. The appellant contends (1) that the delinquent charges were not a lien or incumbrance; and (2) that in the absence of express statutory authority they could not be made such by ordinance. We think these contentions must be sustained. The authorities seem to hold that, in the absence of express statutory authority, delinquent water rentals cannot be made a lien or incumbrance upon property as against a subsequent owner or occupant who did not contract said charges or make default in their payment. Turner v. Revere Water Company, 171 Mass. 329, 50 N.E. 634, 40 L. R. A. 657, 68 Am. St. Rep. 432; Sheffield Waterworks v. Wilkinson, 4 C. P. D. 410; Leighton v. Ricker (Mass.) 54 N.E. 254; Dayton v. Quigley, 29 N. J. Eq. 77.

Respondent has made numerous citations of authority, which, upon a casual examination, might seem to sustain his position, but we find none of them to be in point. All of them are subject to the criticism either (1) that they do not go to the extent of authorizing a water company, or a city operating a water system, to create a lien upon or hold property for delinquent charges due from prior owners or occupants, or (2) that where they hold the property may be subjected to a lien or incumbrance for such charges incurred by a prior owner or occupant, the right to thus create such incumbrance is expressly vested by statute. Tacoma Hotel Company v Tacoma Light & Water Company, 3 Wash. St. 316, 28 P. 516, 14 L. R. A. 669, 28 Am. St. Rep. 35, cited by the respondent, its subject to the first criticism here mentioned. There the company refused to supply water to the identical party and property in default for the arrearages, and a regulation permitting such action was properly held to be reasonable. It will be observed, however, that no change of ownership or occupancy had intervened, and the company by its refusal of a water supply was not attempting to coerce one person into the payment of an obligation incurred by another. In Jones v. Mayor, etc., of Nashville (Tenn.) 72 S.W. 985, the city refused water to the plaintiff, who was herself in default for rentals, and this was held to be a reasonable regulation. There was no attempt to hold her for the default of any other person. In Sheward v. Citizens' Water Company, 90 Cal. 635, 27 P. 439, the dispute was over charges incurred by the plaintiff himself. The respondent has also cited the following Pennsylvania cases: Altoona v. Shellenberger, 6 Pa. Dist. R. 544; Appeal of Brumm (Pa.) 12 A. 855; Girard Life Ins. Co. v. Philadelphia, 88 Pa. 393; Commonwealth v. City of Philadelphia (Pa.) 19 A. 136; In re Gerry (D. C.) 112 F. 958; Gilham v. Real Estate and Title Ins. Co. (Pa.) 52 A. 85. An examination of these cases, in connection with various statutes of that state, will show that while some of them, in substance, hold that a water company or a municipal corporation operating a water system has the right to hold property for delinquent charges incurred by a former owner or occupant, thereby creating a lien or incumbrance, such right is conferred by statute. For instance, in Appeal of Brumm, supra, the opinion of the court...