Wilkin v. Ellensburg Water Co.

• Decision Date: 19 May 1890
• Citation: 1 Wash. 236,24 P. 460
• Parties: WILKIN ET AL. v. ELLENSBURG WATER CO.
• Court: Washington Supreme Court

24 P. 460

1 Wash. 236

WILKIN ET AL. v. ELLENSBURG WATER CO.

Supreme Court of Washington

May 19, 1890

Error to district court, fourth district.

Parsons, Cadwell & Bausman, for plaintiffs in error.

D Gaby and Turner, Forster & Turner, for defendant in error.

ANDERS C.J.

At the time of the commencement of this action Frank H. Wilkin and Thomas J. Wilson, plaintiffs below, were copartners, doing business under the firm name of Wilkins &amp Wilson, and defendant in error was a corporation duly organized under the laws of the then territory of Washington. On the 14th day of October, 1886, plaintiffs and defendant entered into the following agreement in writing: "Know all men by these presents, that the Ellensburg Water Company has this day let unto F. H. Wilkin and T. J. Wilson a contract to construct certain portions of ditch for said company, as follows: Commencing at station forty-three and running to station seventy-seven; again commencing at station ninety-four and running to station ninety-eight; again commencing at station three hundred and ninety-four and running to station four hundred and forty-eight; again commencing at station one hundred and sixty-six and running to station one hundred and eighty-four; again commencing east of the tunnel and constructing one mile between that and the Nannum creek; again commencing east of McCausland's place and constructing the ditch to its termination. All ditch above the tunnel to be twelve feet wide on the bottom and fifteen feet wide at the top, or thirty inches above grade and thirty inches deep; and all east of the tunnel to be eight feet wide on the bottom and eleven feet wide at the top, and thirty inches deep, all of the ditch to be built according to the regular surveyed grade. All earth or ground excavated to be placed on the lowerside of the ditch, not nearer than one foot from edge of ditch, and all fills on lowerside of ditch to be two feet higher than the usual bank; and in no instance is the bank on the lower side of the ditch to be cut down lower than thirty inches above the bottom of the ditch. Work to be commenced on that portion of the ditch above the tunnel immediately, and be finished by the first day of June, A. D. 1887, and the balance on east to be finished by June 1, 1888. In consideration of the said F. H. Wilkin and T. J. Wilson performing the agreements and constructing said ditch as above specified, the said Ellensburg Water Company agree to pay F. H. Wilkin and T. J. Wilson, or their assigns, sixteen cents per cubic yard of earth or gravel necessarily moved in constructing all that portion of the ditch west or above the tunnel...