23 Wash. 730 | Wash. | 1901
The opinion of the court was delivered by
The contract and modifications thereof mentioned in the complaint are therein referred to and made part of the same. The complaint alleges, in substance: That on the 3d day of August, 1895, the state of Washington, by its duly authorized agent, the commis
“That there is a defect of parties plaintiff to this action, in this: that Frank Shay, who is mentioned in said fourth amended complaint, is a necessary party plaintiff to this action, jointly with the plaintiff, William F. Hays. 2, That there is a defect of parties defendant to this action, in this: that the state of Washington is a necessary party defendant thereto, but, although formally joined as such in said fourth amended complaint, cannot lawfully be sued herein in this court. 3. That said fourth amended complaint does not state facts sufficient to. constitute a cause of action against these demurring defendants, or either of them. 4. That said fourth amended complaint does not state facts sufficient to constitute a cause of action in equity against these demurring defendants, or either of them. 5. That, if any cause of action whatever is stated in said fourth amended complaint, the plaintiff has a plain, speedy, and adequate remedy at law thereon; and this court, before which this action has been brought, and the plaintiff’s alleged cause of action therein has been set forth in said fourth amended complaint as one of equitable cognizance, has no jurisdiction, sitting as a court of equity, of the matters and things alleged in said fourth amended complaint, or of any thereof.”
On the 24th day of March, 1900, the court rendered its decision upon said demurrers, in which he sustained said demurrers; and, the plaintiff having elected to stand upon his complaint, upon motion of defendants the court dis
The errors assigned are as follows: The lower court erred in sustaining the demurrer of respondent state of Washington, and in making the final order dismissing appellant’s complaint herein. The lower court erred in sustaining respondents’ demurrer to plaintiff’s (appellant’s) complaint, and in dismissing this case. -The appellant in his brief says:
“Frank Shay, one of the respondents, is easily disposed of, in the light of his assignment of all his right, title, and interest in the contract in question, and his answer herein, in which he expressly disclaims any interest whatever in said contract or in this case, and these actions on his part remove any question of his being a party in interest either in said contract or in this case. The demurrer of the state of Washington cuts but little, if any, figure in this case. The question as to whether or not the court has jurisdiction of the state in this case, or as to whether or not the complaint states a cause of action against the state, is of but little consequence to the appellant in determining his right to the relief sought against respondents Hill and the railroad company. The state and Frank Shay were brought into this case to satisfy the requirement of the lower court, and appellant would not be damaged or his case weakened if they were both dismissed from this case.”
In these respects we view the complaint in the same light as the appellant, and no error was committed by the court below in sustaining the demurrer of the state of Washington to the complaint. The state was not a necessary party to the action, and the complaint stated no cause of action against the state. As to whether or not the court had jurisdiction over the state in this action, we express no opinion, as we do not think it necessary to pass upon
We have examined the contract in this action,, it being made part of the complaint by apt reference. There is nothing in the contract on which to base the allegation of the complaint that the state “undertook and agreed * * * that all of said lands to be filled should be retained by the state in the same condition, as regards necessary costs of filling, as they were in at the date of the execution of said contract.” The law of the state (Laws 1893, p. 241) relative to the excavation of waterways by private contract, under which the appellant claims, does not contemplate a retention of the tide lands by the state until the contract of filling in is complied with. The state retained the right to sell its tide lands or lease its harbor areas. By the act in question there was reserved to the contractor a lien only on the lands filled in under such contract.
The complaint now under consideration is the fourth amended complaint. The license or right of Hill and the railroad company to enter the lands partially covered by the terms of the contract, and to fill in the same, and to excavate the private ship channel, does not clearly appear from the complaint. An amended complaint filed in this action before the complaint under consideration, and brought here by respondents by way of a supplemental record, alleges that the state of Washington duly sold and conveyed to the defendant Hill the lands he is now alleged to be trespassing upon, subject to the lien claim and right of the appellant under said contract. It may be that, under the strict rule that the fourth amended complaint must be construed without reference to former pleadings, we should not take this fact into consideration. The allegation of the fourth amended complaint that Hill and the railroad company “unlawfully” entered is a mere conclu
There are no facts alleged in the complaint showing that the respondents Hill, and the railroad company had no license or authority to enter upon the lands and excavate the channel mentioned; and, as the state has the right to sell notwithstanding the contract of the appellant, we are justified in presuming that the respondents are and have’ been rightfully in possession.
The respondents contend that the contract pleaded was invalid originally; that it has lapsed through non-performance and the expiration of the time limit therein provided. As we view this case, it is not necessary to pass upon these questions at this time, and we express no opinion in that respect.
There is nothing in this complaint showing that the respondents Hill and the railroad company have in any way compelled the appellant to desist from actual work under his contract. The contract provides and reserves the
The judgment of the court below is therefore affirmed.
Dunbar, C. J., and Reavis, Fullerton and Anders, JJ., concur.