LINNE v. BREDES.

[43 Wash. 540, 86 Pac. 858.]

MUNICIPAL CORPORATIONS-Water Charges-Delinquencies-Encumbrances.-A city has no power to compel a subsequent owner or occupant of property to pay delinquent water charges which he did not contract or incur as a condition precedent to the enjoy. ment of further water service. An ordinance making such a regula tion is unreasonable and void. (p. 1074.)

VENDOR AND PURCHASER-Delinquent Water ChargesEncumbrances.-A city has no power to compel a subsequent owner or occupant of property to pay delinquent water charges which he did not contract for, and thereby virtually create a lien or eneumbrance upon his property, and if such subsequent owner pays such delinquent water charges, under a void ordinance requiring him to do so to obtain further water service, he cannot recover the amount from his grantor under a promise by the latter to pay all encumbrances upon the property. (p. 1075.)

Larrabee & Wright, for the appellant.

H. A. Wilson, for the respondent.

541

540 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 encumbrances 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 encumbered with delinquent water charges, amounting to four hundred and twenty-six dollars and ninety-five cents; that said city, acting under the provisions of section 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 de murrer to his complaint being overruled, he answered, making certain denials and pleading as an offset a claim of five

hundred dollars 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 four hundred and twenty-six dollars and ninety-five cents 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 speciñe findings requested by 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 542 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 who 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 encumbrance upon the property. An encumbrance 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 land owner, does not conflict with his conveyance of the land in fee." This court approved these definitions in Green v. Tidball, 26 Wash. 338, 67 Pac. 84, 55 L. R. A. 879. 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 waterworks, and providing penalties for the violation thereof," of which section 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 therefor become delinquent the water shall be cut off, and in no case shall it be turned onto 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 543 have been paid. If he is right in this contention, the delinquent water charges constituted an encumbrance 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 encumbrance, and (2) that in the absence of express statutory authority they could not be made such by ordinance.

The author

We think these contentions must be sustained. ities seem to hold that, in the absence of express statutory authority, delinquent water rentals cannot be made a lien or encumbrance 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 Co., 171 Mass. 329, 68 Am. St. Rep. 432, 50 N. E. 634, 40 L. R. A. 657; Sheffield Water Works v. Wilkinson, L. R. 4 C. P. D. 410; Leighton v. Ricker, 173 Mass. 564, 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 encumbrance for such charges incurred by a prior owner or occupant, the right to thus create such encumbrance is expressly vested by statute. Tacoma Hotel Co. v. Tacoma Light & Water Co., 3 Wash. 316, 28 Am. St. Rep. 35, 28 Pac. 516, 14 L. R. A. 669, cited by

the respondent, is subject to the first criticism here menioned. There the company refused to supply water to the 544 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 attemptng to coerce one person into the payment of an obligation inurred by another. In Jones v. Mayor etc., 109 Tenn. 550, 2 S. W. 985, the city refused water to the plaintiff, who was herself in default for rentals, and this was held to be a reaonable regulation. There was no attempt to hold her for he default of any other person. In Sheward v. Citizens' Water Co., 90 Cal. 635, 27 Pac. 439, the dispute was over harges incurred by the plaintiff himself. The respondent as also cited the following Pennsylvania cases: Altoona v. Shellenbuger, 6 Pa. Dist. 544; Appeal of Brumm (Pa.), 12 Atl. 855; Girard Life Ins. Co. v. Philadelphia, 88 Pa. 393; Commonwealth v. Philadelphia, 132 Pa. 288, 19 Atl. 136; n re Gerry, 112 Fed. 958; Gilham v. Real Estate etc. Co., 03 Pa. 24, 52 Atl. 85. An examination of these cases, n connection with various statutes of that state, will show hat, while some of them in substance hold that a water comany or a municipal corporation operating a water system as the right to hold property for delinquent charges inurred by a former owner or occupant, thereby creating a en or encumbrance, such right is conferred by statute. For stance, in Appeal of Brumm (Pa.), 12 Atl. 855, the opinion f the court refers to, and seems to be based upon, section 13 f the act of 1854, entitled "A supplement to the act incororating the Pottsville Water Company," etc. Said section found at page 85 of the Pennsylvania Session Laws for he year 1854, and reads as follows: "The owners of the reehold in and upon which the said water is taken and used all in all cases be the parties with whom the contract for e use of the water shall be made, and the said real estate hall be bound and liable for the use of the same, reserving O the said president and managers the 545 right to contract ith the lessees or tenants on the responsibility of said lessees - tenants alone, if they see fit to do so." This illustration nds to show that the Pennsylvania cases are not authority Another illustration of the various Pennsylvania states on this subject is found in the Session Laws of that

-re.

state, for the year 1889, at page 311, being section 10 of article 12 of an act providing for the incorporation and government of cities of the third class. This section, which pertains to the water and lighting department, reads as follows: "The city councils shall provide by ordinance for the collection of all the lighting and water rates that may accrue from time to time, to the said city, for the use of the water or light, fixing the time when such rates shall be payable, and the penalties for nonpayment thereof; and such rates shall be charged to the respective owners of the real estate on which such water or light is used, and if the same shall not be paid in accordance with the provisions of such ordinance, claims for the amounts due shall be registered in the city lien docket in the same manner as is herein provided in the case of unpaid city taxes on real estate, with the like force and effect as to the lien thereof."

When a legislature by statute authorizes or gives a lien on land for unpaid water rentals, as it has the power to do, of course such a right so conferred can be asserted and enforced by proper ordinances and rules (1 Farnham on Waters, sec. 166), but we have no such statute in the state of Washington.

Respondent also cites Atlanta v. Burton, 90 Ga. 486, 16 S. E. 214, in which the decision is based upon an express charter provision. Having carefully examined each and all the authorities cited by respondent, we fail to find one that is pertinent or controlling in the case at bar. In Howe v. Orange, 70 N. J. Eq. 648, 62 Atl. 777, the New Jersey court of chancery held that section 10 of the act of 1876 (Gen. Stats. 649), quoted in the opinion, made water rents a lien upon the premises 548 supplied, until the same were paid and satisfied, even though the water for which the rents were delinquent was furnished to a building while it belonged to a previous owner. The ruling, however, is expressly based on said statute, and in commenting thereon the court said: "In other jurisdictions similar legislation to that in this state upon this subject has received consideration, and the courts have held that the city or the water company has the power to shut off the water, and will not be restrained with respect thereto. It is held that the premises to which the water is furnished are liable, that indulgence with respect to the time of shutting the water off will not be held to operate against the right to do so, and that the fact that the title has