finds its way into Onion creek, and some into another channel, it was the duty of the court from the evidence to specify the respective quantities, and render a decree accordingly; but it was wrong to adjudge that plaintiffs had no right to water that comes into Onion creek. Considering the whole record, we are satisfied that an injustice has been done in the respects noted; at least that there was not rendered by the court the right judgment in this case on the only findings it legally made. If a new trial is had, the evidence taken upon the former hearing may be used by the respective parties, with leave to produce other and additional evidence. In view of the entered of record by the clerk. Eight days afterwards, and in vacation, were filed in court written findings, and a decree sigued by the judge as of the last day of the term. The findings were essentially different from those which the court made in term time. The vacation finding was "that the evidence fails to show that any portion of the water of Lost creek has ever found its way into Onion creek, or that any portion of said waters ever constituted any portion of the source of supply of plaintiffs' priority to the use of the waters of Onion creek." The decree upon these written findings enjoined plaintiffs from interfering with the right of defendants to the use of the waters of Lost creek, and from cutting or injuring the Feed-range of the discussion in the briefs we suger ditch, or interfering with the flow of the gest that there is no insurmountable difficulty waters of Lost creek through the same. It in determining the question of fact in this thus appears that there is a material differ- case by actual physical tests, in the nature of ence between the oral and written findings, or those heretofore made under the order of the those made in term time and those in vaca- | trial court. Appropriate instructions, howtion, in this: That the term finding was that at least some part of the water of Lost creek naturally finds its way into Onion creek, whereas the vacation finding was that no portion thereof does. Though they bear date as of the last day of the term, it is conceded that the written findings and decree were not prepared or signed until after the term had adjourned, and these written findings and decree were entered by the clerk as if made on the last day of the term. Section 221, Mills' Ann. Code authorizes the entering of a judgment in vacation as well as term time. fact is not authority for the proposition, and the parties here do not make such claim, that a judgment, such as this, may be pronounced or rendered by the court or judge in vacation. We know of no authority which will permit the court, after the adjournment of a term and in vacation, to revise its findings made in term time or substitute therefor different and contradictory findings which afterwards, and in vacation, it may conclude ought to have been, but were not, made during the term. Sieber v. Frink, 7 Colo. 148, 2 Pac. 901; Schuster v. Rader, 13 Colo. 329, 22 Pac. 505; Abbott v. Board of Co. Com'rs, etc., 18 Colo. 6, 30 Pac. 1031. This The point that the record cannot be contradicted on this review, and that the written findings and decree are presumed to have been duly made in term time, is not relevant or controlling. This is not a collateral, but a direct, attack on their validity; and when it appears, as it does here, that findings and a decree made by the judge in vacation, and not by the court in term time, were entered by the clerk, they will be set aside and held for naught. If both of the alleged decrees are the same, that fact will not aid defendants. The findings as made by the court, and orally announced on the last day of the term, will not support either of them. If some portion of the water of Lost creek naturally ever, to those who may be selected by the Judgment reversed. STEELE, C. J., and WHITE, J., concur. (53 Wash. 430) GEORGE et ux. v. BEKINS MOVING & STORAGE CO. (Supreme Court of Washington. June 8, 1909.) 1. WAREHOUSEMEN (§ 30*)-LIEN FOR STOR AGE. Warehousemen have a lien on goods for storage charges. [Ed. Note.-For other cases, see Warehousemen, Cent. Dig. §§ 65, 66; Dec. Dig. § 30.*] 2. ACCOUNT STATED (8 8*)-CONCLUSIVENESS. The statement by a warehouseman of his bill for advances and storage charges on goods at a certain amount, a part of which the owner paid, does not prevent him from making additions to the bill for proper charges on final settlement. [Ed. Note.-For other cases, see Account Stated, Cent. Dig. § 54; Dec. Dig. § 8.*] Department 1. Appeal from Superior Court, King County; Boyd J. Tallman, Judge. Action of replevin by H. R. George and wife against the Bekins Moving & Storage Company. From a judgment for plaintiffs, defendant appeals. Reversed. Totten & Rozema, for appellant. Thomas B. MacMahon, for respondents. MORRIS, J. Respondents shipped their household goods from St. Paul to Seattle, For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes ria Northern Pacific Railway, and consigned them to appellant. Upon the arrival of the goods, appellant paid all charges, including freight, and removed them to its warehouse, being instructed by respondents to store the goods until notified to remove them elsewhere. Under these instructions the goods were stored from November 12, 1906, to December 17, 1906. After the goods had been in appellant's warehouse about a month, Mr. George inquired as to the sum appellant claimed to be due on account of freight, storage charges, etc., and was informed that he was owing $151.95, of which sum he then paid $150 on account, leaving a balance, as he understood, of $1.95. Mr. George in a few days requested appellant to remove the goods to his home at West Seattle, and upon inquiring the price he was told it would not be over $25. When the goods reached the house and were all delivered except a piano, a bill for $40 was presented, which Mr. George refused to pay, except the sum of $25, claiming it to be excessive, and upon his refusal the piano was taken back to appellant's warehouse and held as security for the balance due. The items forming the account as presented were these: Advance charges and freight to Seattle...... $143 20 Cartage, car to warehouse.. 10 50 Storage, Nov. 12 to Dec. 17, at $8.75 per month Cartage to West Seattle. Total Credit by cash. Bal. due....... 13 15 23 65 $190 50 150 00 $40 50 Respondents then brought this action to recover the piano or its value, and upon the trial the jury returned a verdict in their favor in the sum of $300, which they found to be the value of the piano. Judgment was entered upon the verdict awarding the piano to respondents, or in lieu thereof its value at $300, from which, a motion for new trial being denied, appeal is taken. they called upon appellant and paid it $150 did not preclude an additional proper charge for such length of time as they might leave the goods in appellant's warehouse. Neither did it prevent appellant from including in the account any proper item, such as the charge for moving the goods from the car to the warehouse. The court below should have granted a new trial upon the ground of insufficiency of the evidence to justify the verdict, and that the verdict is against the law; and, for its error in not doing so, the judgment is reversed, and the cause remanded, with instructions to grant a new trial. RUDKIN, C. J., and GOSE, CHADWICK, and FULLERTON, JJ., concur. (53 Wash. 370) STATE ex rel. WHITEHOUSE et al. v. NORTHERN PAC. RY. CO. (Supreme Court of Washington. June 4, 1909.) 1. RAILROADS (§ 214*)-CHARTERS-CONSTRUCTION "CONTINUOUS RAILROAD." Act Cong. July 2, 1864, c. 217, 13 Stat. 365, incorporated the Northern Pacific Railroad Company and empowered it to construct and maintain a continuous railroad, etc., between a point on Lake Superior and some point on Puget Sound. Held, that the Northern Pacific Railway Company, as successor of the original grantee, operated a "continuous railroad" within the meaning of the charter, where it operated at least one train each way daily from terminus to terminus directly through without change of cars or deviation from the main line, which train, with the accommodation afforded by others. furnished adequate service over the line, and it was not required to run all its through trains to the terminus of the road. [Ed. Note. For other cases, see Railroads, Dec. Dig. § 214.*] 2. MANDAMUS (§ 10*) - GROUNDS-BREACH OF LEGAL DUTY. to do a particular act in running its train will Mandamus to compel a railroad company lie only where there is a specific legal duty on its part to do that act and clear proof of a breach of that duty. Dec. Dig. § 10.*] [Ed. Note. For other cases, see Mandamus, Appeal from Superior Court, Pierce County; George T. Reid, Judge. It is difficult to discover any theory upon which this judgment can be sustained. Appellant, being a warehouseman, had a lien upon the goods until the proper storage charges were paid. There was no attempt Mandamus by the State, on the relation of to show that the charges of appellant were J. S. Whitehouse and others, against the unreasonable, nor that the services charged Northern Pacific Railway Company. There for had not been rendered, nor the advance was judgment denying the writ, and relators charges and freight had not been paid. Re-appeal. Affirmed. appellants. B. S. Grosscup and W. C. Morrow, for respondent. spondents seem to have proceeded on the Boyle, Warburton, Quick & Brockway, for theory that, appellant having said to them the cost of moving the goods to West Seattle would not exceed $25, they were entitled to a delivery of the goods upon payment of that sum; but that was only one item in appellant's account against them. Appellant was entitled to have all its proper charges paid before it could be called upon to make a delivery. The fact that respondents were told that their bill was $151.95 at the time MOUNT, J. The relators brought this action in the court below by writ of mandamus to compel the Northern Pacific Railway Company to run all its through passenger trains directly into and out of the city of Tacoma, without deviating from the main line and without change of cars or transfer of pas sengers, mail, or express matter. Issues of fact were joined, and upon a trial the court denied the writ. The relators have appealed. There is no substantial dispute in the facts. They are stated, we think, fairly in respondent's brief, in substance, as follows: By the act of July 2, 1864, Congress incorporated the Northern Pacific Railroad Company and authorized and empowered it "to lay out, locate, construct, furnish, maintain, and enjoy a continuous railroad and telegraph line with the appurtenances, viz., beginning at a point on Lake Superior in the state of Minnesota or Wisconsin, thence westerly by the most eligible railroad route as shall be determined by said company within the territory of the United States on the line north of the forty-fifth degree of latitude to some point on Puget Sound, with a branch via the valley of the Columbia river to a point at or near Portland, in the state of Oregon, leaving the main trunk line at the most suitable place, not more than three hundred miles from its western terminus." Act Cong. July 2, 1864, c. 217, 13 Stat. 365. Pursuant to this and other acts and joint resolutions, large bodies of land were granted in aid of the road, which was constructed from the eastern terminus at Ashland, Wis., to Tacoma, on Puget Sound. As originally constructed it passed through the towns of Enumclaw, Buckley, South Prairie, and Orting. The Northern Pacific Railroad Company subsequently went into the hands of a receiver. The entire property of the company was sold at mortgage sale in 1896, at which time the road was bought in by the Northern Pacific Railway Company, the present respondent, which has owned and operated the road ever since. The respondent Northern Pacific Railway Company was incorporated under the laws of the state of Wisconsin by special act. Chapter 244, p. 475, Laws 1895. Prior to the mortgage sale, the Northern Pacific Railroad Company had operated from Meeker Junction to Seattle over the tracks of the Northern Pacific & Puget Sound Shore and the Columbia & Puget Sound. The Northern Pacific & Puget Sound Shore was constructed from Meeker Junction to Black River Junction. From Black River Junction it had the right to use the roadbed of the Columbia & Puget Sound to Seattle, together with the right to lay rails thereon and to operate trains thereover. The property of the Northern Pacific & Puget Sound Shore was acquired by respondent at the time it acquired the property of the Northern Pacific Railroad Company, so that the line from Meeker Junction to Seattle became a part of this respondent's lines and property at the time of the foreclosure sale in 1896. About the year 1900 this respondent completed what is known as the "Palmer Cut-Off," a branch line leaving the old main line at Palmer Junction and running in a westerly direction to the town of Auburn, which is located on the line between the cities of Tacoma and Seattle. This cut-off reduced the distance from Palmer Junction to Tacoma by way of Auburn about three miles over the original line known as the "Buckley Line," passing through the towns of Enumclaw, Buckley, South Prairie, and Orting, before mentioned. By reason of the superiority of the Palmer Cut-Off over the Buckley Line, with respect to relative curves and grades, the through trains of the respondent were thereafter run over the cutoff. The old Northern Pacific Railroad Company furnished but one through train a day each way. At the time of and prior to the hearing of this case, the respondent was operating two solid trains each way daily between St. Paul, Minn., and Puget Sound, being known as "trains Nos. 1 and 2," commonly known as the "North Coast Limited," and "trains Nos. 3 and 4," commonly known as the "Pacific & Twin City Express." It was also operating a third train, Nos. 5 and 6, commonly known as the "Burlington train," which ran between St. Paul, Minn., and Seattle, Wash., but required a change of cars at Billings, Mont., where connections were made with the solid through Burlington train between Kansas City and Seattle. Train No. 1, being west bound, left the old. line at Palmer Junction and ran over the cut-off to Auburn, thence to Seattle, and thence over the same line to Auburn, and on to Tacoma and Portland, Or. While train No. 2, being east bound, ran from Portland to Tacoma, thence through Auburn to Seattle, thence back again to Auburn, thence by way of the cut-off to the east; the city of Tacoma being given, as auxiliary to the solid train above mentioned, a stub train to Auburn for the accommodation of persons not wishing to take the through train at Tacoma. No. 3, being west bound, ran from Auburn directly to Tacoma and Portland. Train No. 4, being east bound, ran from Tacoma to Auburn, and thence east over the Palmer Cut-Off, but without running into Seattle; the latter city being served by a stub connection from Auburn with trains Nos. 3 and 4. Trains Nos. 5 and 6 ran directly to and from Seattle. At the time of the trial, there were three regular through passenger trains operated by respondent. One originated and terminated at Tacoma, the second originated and terminated at Seattle, and the other, a solid train, through both the above cities on its way between Portland, Or., and St. Paul, Minn. The North Coast Limited train is limited as to stopping places and also as to the number of cars in the train. Physical conditions and limited time prohibit more than nine cars between St. Paul and Seattle. It carries an observation car, is lighted by electricity, and makes better time than the other trains. This train west bound runs over the Palmer Cut-Off to Auburn, at which place it is met by a stub train upon which passengers bound for Tacoma may, if they so elect, come on directly to their destination, or they may remain on the train, arriving at Tacoma about four hours the resulting detention imposed upon the later. The Tacoma mail is brought directly other trains. That without the passenger on the stub from Auburn to Tacoma. Train business furnished by Seattle it would not No. 1 proceeds as a solid train to Seattle, a be possible for respondent to maintain this distance of 21 miles, arriving there at 9:30 fast limited train. That, in order to get this p. m. This train leaves Seattle for Tacoma competitive business, it is absolutely necesand Portland at 10:20 p. m., arriving at Ta- sary to run into Seattle as a solid train. coma at 11:50 p. m., departing for Portland That under these methods of operation the at 12:05 a. m., and arriving at the latter city time from St. Paul to Tacoma made by this at 7 a. m. This train between Seattle and train is over four hours less than the time Portland loses its limited character in that made by No. 3. That by reason of operatit takes on extra sleeping cars at Seattle and ing this train so as to secure the great Tacoma, drops off the observation car, makes amount of passenger business originating and many local steps, and runs at a comparative- terminating at Seattle the citizens of Taly slow rate. East bound this train is known coma are given a superior through service to as No. 2. It leaves Portland at 2 o'clock p. St. Paul, which is over four hours shorter m., arrives at Tacoma at 7:20 p. m., leaves than can be made by a regular through train Tacoma at 7:35 p. m., and, passing through operated in the ordinary manner. It also Auburn, arrives at Seattle at about 9:30 p. appears that under the present arrangem. Leaving there almost immediately for ment the city of Tacoma is furnished adethe east, it returns to Auburn, going east over quate and reasonable service by respondent. the Palmer Cut-Off. Tacoma passengers may It also appears that the Buckley Line is a take this train as it passes through Tacoma, line of excessive grades and curves; the or at their option may take the Puget Sound grades being as high as 1.8, with 10-degree Limited, leaving Tacoma for Seattle at 9:40 curves. p. m., making immediate connection at Auburn with No. 2. Trains Nos. 1 and 2 were installed about the time the Palmer Cut-Off was constructed, and have been operated in the manner they are now operated since the cut-off was completed. It appears: That this North Coast Limited train was put on to meet the active competition of the Great Northern and Canadian Pacific Companies; that Seattle is a competitive point, and furnishes the bulk of the business for this train, more than is furnished by Tacoma and all points south, including Portland; that the train consists of an observation car, one standard sleeping car, one tourist sleeping car, a dining car, a first-class day coach, a second-class day coach, and mail, express, and baggage cars; that the apparatus for furnishing the electric light is carried in the baggage car; that in order to divide this train at Auburn, sending one part to Seattle and another part to Tacoma, it would be necessary to add at least three coaches to the train, besides an extra baggage car, which would so enlarge the train that it would render it impossible for it to run fast enough to compete with the other roads for the business; and that if such an order were made it would be necessary for respondent to discontinue this train entirely. It appears: That Seattle furnishes almost exactly three times as much passenger business to respondent as does Tacoma, and in point of population the former city is more than one-half as large again. For the last three years the total volume of business in Seattle is more than twice the volume in Tacoma. The North Coast Limited is a very expensive train to operate by reason of the superior character of the equipment, the limitation as to the number of passengers it can accommodate, The line has also numerous reverse curves. It is difficult to maintain it by reason of mountain streams, and it is in many respects greatly inferior to the Palmer CutOff. The distance to Tacoma is three miles greater by the Buckley Line than by the cut-off. It is also shown that the Buckley Line cannot be improved so as to render it equal to the cut-off line within any reasonable expense. The Buckley Line has not been abandoned, but is now served by two local trains daily each way. Voluminous briefs and arguments have been filed in the case, and many points argued; but the main contention of the appellant is that, under the provision of the original charter to the effect that respondent "is hereby authorized and empowered to lay out, locate, construct, furnish, maintain and enjoy a continuous railroad" from Lake Superior to Puget Sound, the railroad company must run all its regular through passenger trains, and particularly the North Coast Limited trains, directly into and out of the city of Tacoma, the western terminus of the road. Appellants do not contend that there is any statute which specifically requires the railway company to operate all its trains directly from the eastern terminus of the road to the western terminus without deviation, but they contend that the charter provision above quoted, which authorizes the railway company to construct and maintain a continuous railroad, requires all through trains operated over such road to be run directly from one terminus to the other. They cite no cases directly in point upon this question, but they rely upon the case of Union Pacific Railroad Company v. Hall, 91 U. S. 343, 23 L. Ed. 428. That was a case where the charter required that "the whole line of the railroad ** 串 shall be operated and used for all purposes of communication, It cer lic and government are concerned as one From the showing made we are satisfied connected, continuous line," and where the that the respondent was justified in running railroad company was not using the road its through trains by way of Auburn. The as a continuous line, but had constructed a road as originally constructed has not been bridge across the Missouri river between abandoned. Two regular local trains each Council Bluffs and Omaha, which bridge day are run over that line, affording adewas not used as a part of the continuous quate facilities to points thereon. line of the Union Pacific Railroad Company, tainly cannot be held that the road must but was operated by another company com- always be maintained and operated exactposed of its own employés by the use of ly in the same place it was first built. It transfer trains, and special rates were charg- must naturally be repaired, curves and ed therefor. None of the trains of the rail-grades must be reduced, and changes made road company crossed this bridge. The Su- to meet the growing demands of commerce preme Court of the United States held in and competition. This is what appears to that case that the railroad company was have been done. bound to operate and run the whole road, including the bridge, as one connected, continuous line. In that case it appears that the court required the railroad company to run all its trains over the bridge, but the point that all through passenger trains must run direct from terminus to terminus with out deviation or change was neither considered nor decided in that case. That case cannot control this, for it cannot be main tained in this case that the Northern Pacific main line, are clearly all matters of operat- We find no merit in the appeal. RUDKIN, C. J., and CROW, DUNBAR, and FULLERTON, JJ., concur. (53 Wash. 416) SEATTLE & N. RY. CO. v. BOWMAN et al. (Supreme Court of Washington. June 8, 1909.) 1. PARTIES (§ 42*)-INTERVENTION-TIME FOR INTERVENTION. Under Ballinger's Ann. Codes & St. § 4846 (Pierce's Code, § 272), providing that any person may before trial intervene in an action, etc., a complaint in intervention must be filed before trial. [Ed. Note.-For other cases, see Parties, Cent. Dig. § 69; Dec. Dig. § 42.*] 2. JUDGMENT (8 497*)-VACATION. Where a judgment against a corporation service, the validity of such service, and the was regular on its face and recited due personal question whether the person upon whom it had been made was an authorized officer of the defendant, could only be questioned in a proceedinstituted by motion or petition under Ballining directly attacking the judgment, properly ger's Ann. Codes & St. § 5153 (Pierce's Code, 1033), providing for the vacation of a judgment. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 937, 938; Dec. Dig. § 497.*] 3. JUDGMENT ( 151*)—VACATION—APPLICA TION. against a corporation, minority stockholders filAfter a judgment was rendered by default ed a complaint stating that the corporation was not indebted to plaintiff, that the service of process was invalid, that plaintiff had removed the receiver appointed in the action had conspired books of the corporation from the state, that the to "freeze out" the minority stockholders, and the prayer was that the judgment be vacated, that plaintiff be ordered to return defendant's books and records to the state, that a full accounting be had, and that judgment be entered against the plaintiff for any sum that might be found to be due from it to the defendant. Held, that the complaint was one in intervention and could not be considered as a motion or an application to vacate the judgment under Ballinger's Ann. Codes & St. § 5153 (Pierce's Code, § 1033). [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 296-298; Dec. Dig. § 151.*] 4. CORPORATIONS (§ 206*)-RIGHTS OF STOCK HOLDERS. Stockholders may not resort to the courts for the protection of themselves or the corpora For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |