(202 P.) full quota of lots, as it is fair to assume sister Hattie Bennett, and no part of the that, when the block was platted, sufficient ground existed for each lot as platted. We are satisfied that the testimony supports the judgment of the trial court, and it is affirmed. The respondents will recover their costs. The presumption that all property acquired after marriage, except gifts, devises, or by inheritance by an individual spouse, is community property, is rebuttable. 2. Husband and wife 264 Facts held to show property conveyed to wife was not community. same was acquired in any way from her husband. That her husband, George W. Chapman, was present when the conveyance was made, and consented to and directed the form thereof, with the intent on his part that Emma L. Chapman should take and hold the property conveyed as her separate estate and property. That George W. Chapman was not then insolvent, but, on the contrary, was well able to pay, and has since paid in full, all debts then owed by him, and that the debt hereinafter mentioned was not incurred for eight years or thereabouts after the conveyance above mentioned had been recorded. That all the substantial improvements on the land so conveyed to Emma L. Chapman were made with money given to her by her sister Hattie Bennett, and such improvements were not made with the community funds or property of the plaintiffs nor at their expense, nor with their community resources, or property, and that the same were made five years and upwards prior to the time when the debt was incurred upon which the judgment mentioned in the pleadings was based, except the electric light fixtures costing about $100, which were paid for by her sister Hattie Bennett, and the improvements were made in good faith and without any intent to hinder, delay, or defeat the claims of creditors." Findings by the trial court, supported by [1, 2] Although appellant contends that all evidence that property conveyed to a wife by deed reciting it was for her separate property property acquired after marriage, except was purchased with money given by the wife's gifts, devises, or by inheritance by an indisister at a time when the husband was solvent, vidual spouse, is community property, that and that all improvements on the property is only rebuttal presumption. In this case were made with money subsequently given by the sister, rebut the presumption that the the evidence amply rebuts that presumption, property was community, and show that neither and supports the findings of the trial court it nor the improvements are subject to sale that at a time when the spouses could, withfor the payment of a debt of the husband in- out hindrance to or fraud upon creditors, curred subsequent to the conveyance. acquire property by deed in the name of one as separate property, this property was so acquired as the separate property of the Department 2. Appeal from Superior Court, King County; wife by and with the consent and approval Calvin S. Hall, Judge. Action by Emma L. Chapman and husband against Thomas H. Bain. Judgment for plaintiffs, and defendant appeals. Affirmed. Almon Ray Smith and Thos. H. Bain, both of Seattle, for appellant. Geo. McKay, of Seattle, for respondents. HOLCOMB, J. Respondents brought this action to prevent the sale of the wife's separate property under a judgment against the husband alone. The trial court, upon substantial and competent evidence in support thereof, made findngs in effect as follows: of the husband, and its status was then fixed. Katterhagen v. Meister, 75 Wash. 112, 134 Pac. 673; United States Fidelity & Guaranty Co. v. Lee, 58 Wash. 16, 107 Pac. 870; In re Deschamps' Estate, 77 Wash. 514, 137 Pac. 1009; Morse v. Johnson, 88 Wash. 57, 152 Pac. 677; In re Finn's Estate, 106 Wash. 137, 179 Pac. 103; Rawlings v. Heal, 111 Wash. 218, 190 Pac. 237. The evidence also sustains the findings of the court that all of the essential improvements on the land owned by the wife in her own separate right were made with money given to her by her sister Hattie Bennett, and were not made with community funds or "That respondent Emma L. Chapman ac- property of the spouses, nor with community quired the lands in dispute through a convey-resources. ance made to her on February 18, 1905, by one This disposes of appellants' other contenMargaret W. Bain, spinster, 'as her sole and tions that money borrowed by one spouse separate property for the sole and separate or by both becomes community property, and use of Emma L. Chapman.' That the conthat improvements upon separate property sideration paid for the above-mentioned conveyance was the separate money of Emma L. made with community resources is communiChapman acquired by her by gift from herty property in the proportion that the value For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes of such resources bears to the whole property. | owner of 80 acres of coal-bearing lands in There is nothing further to consider, and Kittitas county. One slope about 600 feet the judgment must be affirmed. Affirmed. in length had been driven down tapping a vein from which a small amount of coal had been taken out. On October 8, 1917, the own PARKER, C. J., and MAIN, MACKIN-er in writing let the premises for a term TOSH, and HOVEY, JJ., concur. (118 Wash. 24) OLSON v. BUSY BEE MINING & DEVELOP- (Supreme Court of Washington. Dec. 12, 1. Mines and minerals 112(2)-No llen for air shaft off of property. Rem. Code 1915, § 1129, giving a lien to a person performing labor on a mining claim, is based on the equity of paying for work which benefits the land, and does not give a lien for the construction of an air slope or tunnel under contract with lessee of a coal mining claim where all but a very small portion thereof was located on the land of another, who had not consented to its construction, and there was no showing that the small portion on the claim was of any benefit to it. 2. Mines and minerals 112(2)-Lessee not ending on or before March 29, 1931, to William J. Gallaher and Gardner J. Gwinn to be operated as a coal mine. On February 16, 1918, the lessees by a written instrument assigned their interests under the lease to Gwinn & Gallaher, a corporation, that commenced and thereafter operated the mine. On August 30, 1918, Gwinn. & Gallaher, a corporation, entered into a written contract to drive a six by six tunnel or air slope from with Olaf Olson, by which the latter agreed the bottom of the mine at a point to be directed by Gwinn & Gallaher, Incorporated, pursuant to which Olson commenced the performance of the work on September 13, 1918, and continued thereat until December 7, 1918. The air slope was not completed for the reason that about December 7, 1918, Gwinn & Gallaher, a corporation, became and continued to be insolvent and were placed in the hands of a receiver, and all mining operations were closed. Olson, not having been agent to authorize improvements off of prop- paid for his labor, duly filed and had re erty. Even if the mechanic's lien statute makes lessee of a mining claim the statutory agent of the owner to contract for improvements, it does not authorize him to procure another on behalf of the owner to furnish labor or mate rial for improvements located on the land of a stranger, so that the owner is not bound by the lessee's acts in so locating an air slope or tunnel. 3. Mines and minerals 113-Owners held not estopped to deny lien for work off of property. That the owners of coal land knew their lessee employed plaintiff to construct an air slope or tunnel without showing that they knew of its exact location, or that the contractor who constructed it relied on any act or representation, does not estop the owners from defeating a mechanic's lien for its construction on the ground that it was constructed, under lessee's instructions, on lands belonging to a stranger. En Banc. corded his notice of claim of mechanic's lien on the 80 acres. This action was brought to foreclose the lien. There was judgment for the plaintiff, from which the defendant, the owner of the property, has appealed. [1] A number of assignments of error have been presented and elaborately argued. With one exception we find it unnecessary to discuss them. In all other respects we may assume, without deciding, that under the particulars of this case the respondent would be entitled to judgment. The one feature of the case fatal to the right of the respondent to recover is that the air slope or tunnel as constructed, or rather to the extent it has been constructed, is almost wholly upon property that does not belong to the appellant, the owner of which other property has in no way given his consent, nor indeed does it appear that he was aware that the tunnel I had been constructed upon his property. The statute, section 1129, Rem. Code, pro Appeal from Superior Court, Kittitas Coun- vides: ty; John B. Davidson, Judge. Action by Olaf Olson against the Busy Bee Mining & Development Company. Judgment for the plaintiff, and defendant appeals. Reversed, with directions to dismiss the action. Preble, McAulay & Meigs, of Yakima, for appellant. Parker, La Berge & Parker, of Yakima, for respondent. MITCHELL, J. The Busy Bee Mining & Development Company, a corporation, is the "Every person performing labor upon the construction, alteration or repair of any mining claim has a lien upon the * same for the labor performed. The whole theory of the statute in providing that the claim of a mechanic may be made to attach to the land is based on the equity of paying for work on the land that benefits it. It contemplates the appropriation and use by the landowner of the me chanic's labor upon the land of the owner. The statute says so in positive terms. It says For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (202 P.) The judgment is reversed, with directions to dismiss the action. that every person performing labor "upon" We conclude the respondent is not entitled any mining claim, etc., has a lien, and here to recover. the evidence fails to show if the small portion of the air slope or tunnel as constructed that is upon appellant's property can be made of any benefit to it. PARKER, C. J., and HOVEY, FULLER[2] Respondent attempts to meet the situ- TON, MAIN, TOLMAN, BRIDGES, and ation by contending that he knew nothing| MACKINTOSH, JJ., concur. about the boundary lines and that he constructed the tunnel at the place and as directed by the lessee who was the statutory agent of the appellant. If it be admitted (117 Wash, 686) CO. et al. (No. 16629.) (Supreme Court of Washington. Dec. 8, 1921.) that in this case the lessee was the statu- FORD v. LESCHI MARKET & GROCERY tory agent of the owner of the fee, under the mechanic's lien law (which we do not decide), there is nothing in the statute that even attempts to authorize a lessee or any one on behalf of the owner to procure one to furnish labor or to furnish material on the land of a stranger. [3] It is further argued by the respondent that the officers of the appellant were at the mine during the performance of the work and that the appellant is therefore estopped from denying the effectiveness of the lien. The facts relied on are: (1) An officer of the appellant was at the mine, so respondent says, just as he "was going to start getting the machinery ready," and wanted to know how long respondent thought it would take to construct the tunnel; (2) two officers of the appellant corporation were at the mine a few days before respondent quit work to cóllect royalties as to which the operators were delinquent, and the respondent mentioned the fact that he was engaged in making the air slope or tunnel; and (3) some time about, possibly before, the date of the contract with the respondent, Mr. Gwinn of the lessee corporation claims to have talked with the president of the appellant, not at the mine, about the construction of the tunnel. The latter is denied by the president of the appellant, who testified that the conversation was only with reference to requested changes in the lease. It is certain, however, that there is no proof appellant was ever advised of the terms of the contract of the lessee with the respondent as to the location of the air slope, or otherwise, or that it ever knew at what angle or direction the air slope would be constructed or that it or any part of it would be driven in the land of another. Respondent's claim is based upon work performed under and according to a contract with a party other than the appellant. He was carrying out that contract as directed by the party with whom he had made it. He way in no way misled or influenced by the conduct of the appellant which, through its officers, was neither made aware of nor had it any reason to know or believe that the work being done by the respondent was or was intended to be located almost entirely upon the property of a third person. 1. Pleading 317(5)-Defendant entitled to bill of particulars when item for balance due on wages was not itemized. Where one item of the account sued for rate per month, or the months during which consisted of "balance due on wages," and the the salary was earned, or any payments thereon, were not set forth, defendants were entitled to a bill of particulars under Rem. Code 1915, § 284. MAIN, J. This action was brought for the purpose of recovering the balance due on an account. The trial court permitted a recovery in the sum of $398.97, and entered judgment accordingly. The defendants appeal. The appellants had been operating a grocery store and market since the latter part of the year 1915, and the respondent had worked for them in the store until the latter part of November, 1919. The business was under the supervision of Walter D. Allison, the son of the appellant Etta Allison, until October, 1917, when he entered the army of the United States, where he was until the 30th day of April, 1919. While Walter D. Allison was in the service the respondent acted as manager of the store. In this capacity he made the purchases, paid the ac For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes counts, drew checks, and a considerable por- (v. Dentler, 97 Wash. 149, 166 Pac. 62, 6 A. tion of the time kept the books. He admitted L. R. 749, it was said: "That for about four years prior to November, 1919, the plaintiff performed services and labor for the said Leschi Market & Grocery Company upon which there is a balance due him of $548.97, as follows: that his salary had been fully paid up to "It is true that, in many cases, the requirethe 1st of March, 1919, but claimed that sub-ment of a bill of particulars is a matter of sequent to that time there was a balance due discretion with the court; but under our prachim of $525. Paragraph 2 of the complaint tice, under Rem. Code, § 284, when an account is as follows: is sued upon, unless the party, within 10 days after demand therefor in writing by the adverse party, shall deliver to the adverse party a verified bill of particulars of the items of the account, he is precluded from giving evidence thereof, and in case an itemized account stated is defective, the court may order a further account. It was shown at the trial that the respondent kept an account book with all his accounts shown therein, and that the particular items of account with Mr. and Mrs. Woodman were kept in that book in the ordi Balance due on wages... One (1) calf furnished his employer....... Groceries furnished his employer... $525.00 16.06 1.00 After the complaint was served the appellants served a demand that they be fur-nary course of business, together with other nished "with a bill of particulars of the accounts, and all the items of the visits and memoranda as to the nature of the ailments items of the account alleged in the complaint with which the patients were suffering were herein." This demand was served on the 6th kept therein. In Plummer v. Weil, 15 Wash. day of April, 1920. The demand was not 427, 46 Pac. 648, we held that an allegation complied with, and on the 17th day of April, in connection with the bill of particulars, to 1920, the appellants answered by general de- the effect that it was impossible for the party nial. Upon the trial the appellants sought relying thereon to comply with the order of the to prove payment, which was objected to court any better than he had already done, or on the ground that it had not been pleaded. to make the bill of particulars any more specific They were permitted to amend, and the court, furnished no excuse; and it was stated on the points directed in the order of the cause was continued until the following day that the bill of particulars furnished was inupon the condition that the appellants fur- sufficient, and its insufficiency cannot be exnish an itemized statement showing when cused upon the ground that plaintiff kept no the payments were made. When the re- books, and cannot specify the services or state spondent offered testimony as to the balance their value. He assumed the burden of so of the salary claimed to be due by him, it doing when he brought his action in the present was objected to because he had not complied form. "The failure to keep an acwith the demand for an itemized statement. count of these services is the fault of the This objection was overruled, and the trial plaintiff, and he must suffer for it, if any proceeded as above indicated. "It certainly was as possible for respondent The first and controlling question is wheth-to itemize the quantity and value of the medier the respondent, not having complied with cine furnished by him at each visit, when makthe demand to itemize the balance that he ing his entries in his book, as it was for him claimed due for salary, was entitled to in- to itemize the number and length of his visits, troduce evidence in support thereof. Rem- the nature of the other services performed by ington's 1915 Code, § 284, provides: him, and the kind of medicines furnished. If he could not, he is the one who should suffer. Under the statute heretofore quoted, we think his evidence as to the amount and value of the medicines furnished should have been excluded for his failure to furnish, upon demand, a bill of particulars thereof." "It shall not be necessary for a party to set forth in a pleading a copy of the instrument of writing, or the items of an account therein alleged; but unless he file a verified copy thereof with such pleadings, and serve the same on the adverse party, he shall, within ten days after a demand thereof in writing, deliver to the adverse party a copy of such instrument of writing, or the items of an account, verified by his own oath, or that of his agent or attorney, to the effect that he believes it to be true, or be precluded from giving evidence thereof. The court, or judge thereof, may order a further account, when the one delivered is defective; and the court may, in all cases, order a bill of particulars of the claim of either party to be furnished." It will be noticed by this statute that unless the demand there provided for is complied with, the party in default shall be precluded from giving evidence of the matters pleaded to which the demand was directed. With reference to this statute, in Sanborn one.'" [1, 2] The present case falls within the holding of that case. The respondent seeks to be relieved from complying with the demand: First, because he claims that the statement in the complaint was sufficient: and, second, that by answering the demand was waived. The complaint, so far as the balance due for services is concerned, simply specifies balance due on wages, $525. It does not set out either the rate per month or the months during which the salary claimed had been earned. Neither does it set forth any payments. These were matters which were within the respondent's knowledge, and which the appellants had a right to be informed of in order that they might be in a position to meet his demand. There is no (202 P.) merit in the other position taken by the respondent to the effect that by answering there was a waiver. There was a failure here to comply with the specific statute which provides that if such a demand is not complied with the party in default shall "be precluded from giving evidence thereof." It was error for the trial court to permit the testimony in support of the balance claimed to be due for salary and to enter judgment in any amount on that item. The cause will be remanded to the superior court, with directions to modify the judg ment as herein indicated. PARKER, C. J., and HOLCOMB, MACKINTOSH, and HOVEY, JJ., concur. (118 Wash. 28) AYLMORE V. BICKFORD et al. (No. 16692.) (Supreme Court of Washington. Dec. 12, 1921.) Waters and water courses 156(5)-Purchaser of lot in subdivision held not entitled to water from pipe constructed to property line by owner of subdivision without payment therefor. Where owner of subdivision made contract with owners of other land, who had appropriated to their use the waters of springs entitling owner of subdivision to tap pipe line supply ing such other owners with water and to take from such pipe water not to exceed specified amount, and where owner of subdivision laid pipe to property line of a lot, after sale thereof, in such a manner as to clearly indicate his dominion and control over the pipe line, the purchaser of the lot was not entitled to water from pipe without payment of compensation therefor to such owner of subdivision. was subject to, or conveniently located with reference to, the flow of the water from the springs. Together they had constructed a storage tank near the springs and had piped the water to their several properties. Arthur F. Bickford and Ernest L. Bickford were the owners of nearly all of J. T. Forrest's First addition to East Seattle, and had not the waters of the spring been diverted they would have flowed over and across the Bickford property, but not over that portion of it subsequently acquired by Reeves Aylmore, Jr., plaintiff. As a matter of amicable adjustment of any question that might otherwise arise in regard to the use of the water, James F. Lane and wife, as parties of the first part, and John P. Hoyt and wife, as parties of the second part, and Ernest L. Bickford and wife with Arthur F. Bickford and wife, as parties of the third part, entered of as the water contract) on December 29, into a written contract (hereinafter spoken 1905, concerning the storage and use of the water. The contract provided that whereas the first and second parties had appropriated the waters to their own use for domestic and irrigation purposes and had erected a storage tank on block 4 wherefrom the water had been piped to their properties, at an expense of $350, and whereas the parties of the third part through whose lands the rivulet or stream flowed in its natural course before it was appropriated, desired to tap the water pipe of the first and second parties for the taking of water therefrom for domestic and irrigation purposes, and which was agreeable to the first and second parties, the water to be so taken, however, not to exceed one-third of the flow in the pipe, it was agreed: "That the said parties of the first and second parts will allow the said parties of the third part to tap their said pipe at some point on said block three and will and do hereby grant and convey to said parties of the third part, their heirs and assigns, the right to so tap said pipe and take therefrom, at the place where so tapped for the uses and purposes hereinbefore mentioned, not to exceed one-third of the water flowing therein. "And said parties of the third part in consideration of the covenants and agreements on the part of the parties of the first and second parts, do hereby agree to and do hereby grant MITCHELL, J. Prior to December, 1905, and convey unto the said parties of the first James F. Lane and John P. Hoyt appropri- and second parts, their heirs and assigns, all ated to their own use the waters of a spring of the right, title and interest of the said paror a number of springs originating on block ties of the third part which they have had or 4 of White and Noble's addition to East may have to the waters of said spring or Seattle. James F. Lane and wife owned 25 rivulet and the use thereof by reason of the lots of block 4 upon which lots the springs stated, it would have flowed in its natural fact that if not appropriated, as hereinbefore were situated, and alone or with the Hoyts state across J. T. Forrest's First addition to owned block 3 of the same addition. John East Seattle owned by said parties of the P. Hoyt and wife owned real property third part, or otherwise, it being the intent of adjacent to that belonging to Lane, which all the parties hereto to adjust by this agree For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |