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orders of sale to satisfy maturing installments. The statute is no broader than the equitable power of the court. The fact that the statute provides that the whole of the mortgaged property may be sold to satisfy the installment due, if the court finds it to be impracticable to sell in parcels, and that the final judgment shall direct at what time and upon what default any subsequent execution shall issue, would indicate that the law contemplates but one foreclosure proceeding, and that all subsequent proceedings, tending to the issuance of an execution or the satisfaction of maturing installments, are merely matters of detail or in sequence of the original decree. The effect of the decree in this case was to establish the validity of the notes and the mortgage, and the subsequent procedure is for the pro

according to the terms of said notes, nor is there due thereon interest accruing thereon from and after the 15th day of January, 1910, and that none of the notes in this paragraph identified, nor interest accruing thereon from and after the 15th day of January, 1910, have been paid." And as a conclusion of law, the court found: 66 $ * * Said decree also to provide that this court shall, after the entry of decree herein, entertain an application to ascertain whether or not said property can be sold in parcels, and that if upon said application it be found by this court that said property can be sold in parcels without injury to the interests of the parties, that this court shall direct so much only of the premises to be sold as will be sufficient to pay the amount now due under said mortgage, with costs as above set forth, and that said judgment and decree shall re-tection of the mortgagee and is not against main and be enforced in the event of default in the payment of the principal of the second, third, fourth, fifth, and sixth of the notes in paragraph 9 of the findings of facts herein set forth, or any of said notes, or upon default in the payment of the interest on said notes or any part thereof, unless the amount due as hereinabove set forth shall be paid before the execution of said judgment or decree is perfected. *

his interests. Bank of Napa v. Godfrey, 77 Cal. 612, 20 Pac. 142; Rice v. Cribb, 12 Wis. 178. Section 1127 of the Code, if taken alone and literally, might give color to the contention of the appellants that the payment of the amount found due upon rendition of the first decree discharged the whole case, and that respondent's only remedy for subsequent default is another foreclosure Aft-proceeding. The words, "and the judgment shall remain and be enforced upon any subsequent default unless the amount due shall be paid before execution of the judgment is

section 1126, which clearly provides that such payments shall only stay proceedings pending a subsequent default "of principal or interest thereafter becoming due." These statutes are in force in many states, as will be seen by reference to sections 1317-1367, 2 Jones on Mortgages (6th Ed.). We shall not undertake to review or analyze the many cases to which we might refer, for, as we construe our statute, it is conclusive. But taking the California cases as a type, we think the purpose and construction of these statutes is sufficiently set forth to illustrate and sustain our ruling. San Jose Ranch Co. v. San Jose, etc., Co., 126 Cal. 322, 58 Pac. 824; Higgins v. San Diego Bank, 129 Cal. 184, 61 Pac. 943; Bank of Napa v. Godfrey, supra.

er the payment of the amount due at the time the decree was entered had been made, the respondent filed a petition in the lower court, setting forth the fact that other in-perfected," must be taken in connection with stallments had become due, and asked the court to ascertain whether the property could be sold in installments, and if not that a general order of sale should issue. This proceeding was vigorously assailed by the appellants. Upon the hearing, the court decided that the property could not be partitioned and sold, and accordingly decreed a sale of the whole thereof. It is contended that the original proceeding lapsed and became satisfied by the payment of the amount first found to be due, and that the court was without jurisdiction to entertain the subsequent proceeding, and that its order to pay was void and operates to deprive the appellants of their property without due process of law. We may admit that this would ordinarily be so. Where a mortgage debt is divisible, and an action is begun or is about to be begun for the recovery of a part thereof, the payment of that part will arrest the right of the mortgagee to prosecute a foreclosure. But our statutes intervene to modify, if not to entirely abrogate, this ancient rule.

[1] It seems to have been the object of our statute (sections 1126, 1127, 1128, Rem. & Bal. Code) to make statutory that which had frequently been determined under the general equity powers of the court; that is, to allow a decree to be entered, judicially determining the amount then due and to become due, and to provide for subsequent

[2] It is nevertheless insisted that, when the appellants paid the amount then due upon the judgment, no further order of sale could be made, unless there was also entered another lawful decree; that it was not within the power of the court to enter an original judgment for any sum other than the amount then due; that the power to sell was stopped by payment; and that any further proceedings must be founded on and provided for in the decree, and there cannot be any order in the nature of a second judgment in the same proceeding. an abstract proposition we can admit all that plaintiff contends; but, as we have un

As

dertaken to show, our statute is controlling. The court has rendered one decree, and the only purpose of the subsequent proceeding is to determine the amounts due as they mature. The statute is probably broad enough to warrant an execution for maturing installments without invoking the rule of the court. In any event, the rule did not work to the injury of the appellants, and they cannot complain. We have reviewed the cases submitted by appellants to sustain their contentions, and in our judgment they do not militate against our present judgment. If any of them seem to do so, it will require no more than casual reading of the case to show that it was decided without reference to a controlling statute. On the other hand, we conceive the cases of Rice v. Cribb, 12 Wis. 179, Skelton v. Ward, 51 Ind. 46, and Railroad Company v. Fosdick, 106 U. S. 47, 27 L. Ed. 47, as well as other authorities relied on, sustain and support the judgment of the lower court.

[3, 4] It is said that the effect of this rul

ing will be to deny to appellants valid and subsisting defenses to the mortgage. This may be so in so far as such defenses may have existed at the time the original decree was entered, for, the decree having the force of any other judgment, appellants could not now set up a defense that might have been there urged. In other words, the validity of the notes and mortgage was conclusively | established. This we think would be the rule, although we hold that the appellants have a defense going to the validity of or arising out of the mortgage that had not been set up in the main action, for an existing defense not pleaded on foreclosure of an installment could not be set up on fore

closure of a subsequent installment. If appel

lants have a defense which has accrued subsequently, they might have set it up in opposition to respondent's motion for an execution, or, having failed to do this, might, if otherwise sustained by legal principles, maintain a separate action.

We think the proceeding in the lower court was strictly in accord with the letter and spirit of the statute, and the order and judgment of the court is therefore affirmed.

DUNBAR, C. J., and GOSE, PARKER, and CROW, JJ., concur.

(67 Wash. 589)

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finding that the break was caused by defendant's negligence in failing to inspect and repair. [Ed. Note.-For other cases, see Waters and

263.*]

Water Courses, Cent. Dig. § 324; Dec. Dig. §
2. WATERS AND WATER COURSES ($263*)—
RES IPSA LOQUITUR DOCTRINE BREAKING
OF IRRIGATION DITCH.

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The maxim of res ipsa loquitur would apply to the breaking of an irrigation ditch. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 324; Dec. Dig. § 263.*]

3. NEGLIGENCE (§ 121*)-RES IPSA LOQUITUR -APPLICATION OF DOCTRINE.

The res ipsa loquitur doctrine, like all other rules of evidence, must be applied with reference to the particular facts.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 217-220, 224-228, 271; Dec. Dig. § 121.*]

4. TRIAL (8 382*)-VIEW BY COURT-WEIGHT OF EVIDENCE.

dence in the light of all the relevant facts comIt is the court's duty to weigh the eviing within his observation upon a view of the premises taken by him.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 898; Dec. Dig. § 382.*1

5. APPEAL AND ERROR (§ 1011*) — FINDINGS BY COURT-CONCLUSIVENESS.

The Supreme Court would reluctantly interfere with a trial court's finding on substantially conflicting evidence, where the trial judge viewed the premises involved in making his finding.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*]

Department 1. Appeal from Superior Court, Yakima County; Thomas E. Grady, Judge.

Action by Albert Dalton and wife against the Selah Water Users' Association. From a judgment for plaintiffs, defendant appeals. Affirmed.

ly & Bounds, for respondents.
Davis & Morthland, for appellant. Snive-

GOSE, J. The facts in brief are as follows: On the 10th day of August, 1910, the appellant owned and operated a canal in Yakima county, which carried a large volume of water for irrigation purposes. The respondents owned land about one mile from 300 or 400 feet above the respondents' land. On the night of August 10th a mass or block of earth, 12 to 16 feet in thickness and 170 to 180 feet in length, broke from the lower side of the canal and swung out like a gate, leaving an opening about 25 feet in width, through which the waters of the canal es

the canal. The elevation of the canal is

DALTON et ux. v. SELAH WATER USERS' caped and flowed over and upon the respond

ASS'N.

ents' land, causing the loss for which a recovery is sought in this action. The appel(Supreme Court of Washington. March 22, lant had put side lining at the point of the

1912.)

1. WATERS AND WATER COURSES (§ 263*)IRRIGATION - INJURIES BY FLOWAGE-EVIDENCE-NEGLIGENCE.

Evidence in an action against an irrigation association for injury to land by water breaking from defendant's ditch held to sustain a

break, along the lower bank of the canal a few days before the break occurred. The canal at this point was cut into the side of a hill. The hill formed the upper bank, and the dirt taken from the cut formed the lower bank or side of the canal. In putting

*

in the side lining, a trench was. made, 12 | thrown on top, and underneath it was nothto 14 inches in width and 18 inches in depth. ing. It seemed to be all washed awayPlanks 4 inches square were placed 4 feet soft; and I just went right down. apart in the bottom of the trench against Well, I went clear over my knees." He furthe lower side of the canal. To these were ther stated that the place where he stepped nailed rough boards 16 feet in length, 12 was between the side lining and the lower inches in width, and 11⁄2 inches in thickness, bank of the canal, and that the bank broke and extending from the bottom of the trench a few feet above this point. He testified to the top of the lower bank of the canal. further that he told the appellant's superThe dirt taken from the trench was then intendent of the condition of the bank; that tamped on the inside of the lining, and it was "going to break," and said to him from time to time dirt was thrown into the that he should give it his attention; and four-inch space between the upright timbers that the superintendent answered, "Who and the lower bank of the canal, and pud- is running that ditch?" The break occurdled. On the question of negligence the red the first or second night following this lower court found: "That prior to the 10th communication. The superintendent testiday of August, 1910, the defendant attempted fied that he did not remember the conversato repair a portion of the said ditch by clean- tion. This testimony, when considered with ing out the bottom thereof and by construct- the physical facts and the view made by ing side lining along a portion of one of the court, clearly sustain the finding. It the sides thereof; that the said ditch at seems proper to say that the court viewed the point where it broke, as hereinafter re- the break some nine months after the acferred to, was constructed along the side of cident happened. The physical facts were, a hill; that in putting in said side lining however, still present. The appellant had a trench was dug along the bottom and at then put in a flume at the point where the the outer edge of the ditch from 18 inches earth broke away from the canal. The apto 3 feet in depth to hold the side lining; pellant seeks to exculpate itself from the that the said trench was dug in such a neg- charge of negligence by testimony that the ligent manner, and the side lining so neg- lining was properly installed, that the canal ligently placed therein that the water, when was patrolled daily, and that the patrolmen turned into said ditch, softened the soil in did not discover any indication of infirmity the bottom and in said trench and the outer in the bank where the break occurred. This side of said ditch that it would not hold does not exonerate the appellant from liathe water when it was turned in, and the bility. The evidence is that the water could side split off and allowed the whole volume pass through the space between the horizonof water in said ditch to escape and run tal boards. If the witness Baird observed down onto the premises of the plaintiffs; and foretold the danger, the patrolmen could that the weak and softened condition of the have seen it had they given it a reasonable bank of said ditch was called to the atten- inspection. tion of the defendant prior to said break, and the defendant had full knowledge of such condition. The appellant contends that this finding is not supported by the evidence, that there is no evidence of negligence, and that the doctrine of res ipsa loquitur cannot be applied to cases of this character. Before considering this question, it seems proper to say that the findings recite that the trial judge, upon the stipulation of the parties, viewed the canal at the point where the break occurred; and further recite that the findings are based upon the evidence and the view made by the court.

[1] We think there is ample evidence to sustain the finding. It would seem that nothing but a convulsion of nature or the negligence of the appellant could cause such a mass of earth to break away from the canal. A witness for the respondents, Mr. Baird, however, testified that he was at the point of the break two or three days before the break occurred; that he stepped upon the bank where they had placed the side lining, and that he "just simply dropped down; right through into the side lining; the back of the side lining and the main bank. It seemed to be a lot of gravel

If the break had been of a character that it could reasonably be said to have been caused by the recent burrowing of an animal, or by a trespasser, or if the manner and circumstances of the accident were consistent with reasonable care upon the part of the appellant, and there was no evidence of negligence other than the happening of the accident, a different question would be presented. We think the circumstances are such as to make the negligence of the appellant a legitimate if not an irresistible inference.

[2] We think the better rule is that the doctrine of res ipsa loquitur applies in cases of this character. In Lynch v. Ninemire Packing Co., 63 Wash. 423, 115 Pac. 838, in speaking of this doctrine, it is said: "The maxim of res ipsa loquitur may be termed a rule of evidence, to the extent that, when properly applied, it raises a presumption of negligence sufficient to make a prima facie case on behalf of the plaintiff, and call for an explanation from the defendant." In Griffin v. Manice, 166 N. Y. 193, 59 N. E. 926 (52 L. R. A. 922, 82 Am. St. Rep. 630), it is said: "It is not the injury, but the manner and circumstances of the injury that justifies the application of the maxim."

See, also, 3 Farnham on Waters and Water | subscribed to it were to be paid in the order Rights, 134; 6 Thompson on Negligence, of their subscription $2 for every $1 invest§ 7636; 2 Cooley on Torts (3d Ed.) p. 1425; City Water Power Co. v. City of Fergus Falls, 113 Minn. 33, 128 N. W. 817, 32 L. R. A. (N. S.) 59; Gould v. Winona Gas Co., 100 Minn. 258, 111 N. W. 254, 10 L. R. A. (N. S.) 889.

[3] This maxim, like all other rules of evidence, must be applied with reference to the facts of the particular case. The breaking of the banks of a canal is but a circumstance, and its probative force must be determined from all the facts and circumstances surrounding its occurrence.

[4, 5] Where the trial judge views the premises upon the stipulation of the parties, it, of course, becomes his duty to weigh the evidence in the light of all pertinent facts that fall within his observation; and in such cases, if there is a substantial conflict in the testimony, this court would be reluctant to interfere with his finding. Affirmed.

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HOFSTETTER v. SOUND TRUSTEE CO. et al.

(Supreme Court of Washington. March 20, 1912.)

1. APPEAL AND ERROR (§ 1011*)-REVIEWFINDINGS ON CONFLICTING EVIDENCE.

Findings upon conflicting evidence are conclusive on appeal.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*]

2. COSTS (§ 184*)-FEES-WITNESSES NEITHER SUBPOENAED NOR CALLED.

Under Rem. & Bal. Code, § 482, which provides that the prevailing parties shall be allowed all necessary disbursements, including fees of witnesses, the time and mileage of witnesses in attendance at the trial, although not subpoenaed, and whom the course of the trial makes it unnecessary to call, may be taxed as costs.

[Ed. Note.-For other cases, see Costs, Cent. Dig. $$ 715-736; Dec. Dig. § 184;* Witnesses, Cent. Dig. § 55.]

Department 1. Appeal from Superior Court, King County; Ben Sheeks, Judge. Action by C. Hofstetter against the Sound Trustee Company and others. Judgment for defendants, and plaintiff appeals. Af

firmed.

L. H. Wheeler, for appellant. Ballinger, Battle, Hulbert & Shorts, for respondents.

ed. The concern had no capital and no property. The money was paid out of the sums received from new subscribers and from lapses. In January, 1906, it became apparent to some of those who were subscribing to the scheme that its end was approaching. Two circumstances contributed to this result-hard times and the activity of the agents of the United States government which from time to time has acted upon the assumption that all men are not sui juris. It accordingly was about to exercise its right of paternal interference to protect the genus Catostomidæ from the more active Carchariidæ. At this time appellant had a net sum of $508 in the get rich quick concern. It seems clear beyond the peradventure of a doubt that he understandingly and with other subscribers agreed to put into a new concern to be organized a sum equal to 10 per cent. of the, amount he had paid into the Income Guaranty Company, and that all such subscribers would take stock in the new concern, representing a number of shares at $1 per share, equal to the amount they had paid into the Income Company. In other words, those who went into the new concern were to get their stock for 10 cents on the dollar. Appellant's actual investment in the new concern was $58. The Sound Trustee Company, the respondent, was accordingly organized. So far as the record shows, this was and is a legitimate company, having no connection in any way with the former company; nor does it bear any relation to the new company except, in this, that it served to bring about a combination of the individuals who had subscribed thereto.

The new company organ

ized and has done quite an extensive business. Considerable new money has been brought into it, and it has some resources in real estate, and some debts. Appellant brought this action upon the theory that the Sound Trustee Company, is obligated to pay him the amount of his investment in the old company, regardless of the present value of his stock in the respondent; basing his demand for an accounting and a receiver upon the allegations that Angel and Hickey represented to him at the time that he agreed to pay in his 10 per cent. that respondent had a capital stock of $150,000 fully paid and nonassessable, that the business has been fraudulently conducted, and that the respondent company is insolvent.

We shall not review the evidence. Suffice it

to say that in our judgment appellant has failed to sustain any of these issues by a CHADWICK, J. Appellant and respond- preponderance of the evidence or any evients William H. Angel, Daniel Hickey, and dence. The errors assigned are numerous, many others were subscribers to a concern and, almost without exception, go to the recalled the Income Guaranty Company. The fusal of the court to admit testimony or promise of quick riches was the lure that to compel the production of testimony. A held this concern together. Those who careful reading of the statement of facts

convinces us that the trial judge was indulgent in the extreme, and offered appellant every opportunity to make proof of his case within the well-understood rules of evidence.

[1] Appellant did not see fit to meet the suggestion of the court, and is bound by the record as made and by the findings of the court in the few instances where it might be contended that the testimony is conflicting.

The plaintiff is the receiver of the Washougal River Improvement & Log Driving Company, a corporation organized under Laws 1905, p. 108, for the purpose of clearing out and improving the Washougal river, and for sluicing, sacking, driving, sorting, holding, and delivering logs and other timber products. There was a decree for the plaintiff upon all the liens. The defendant has appealed.

The appellant concedes that the logs upon which three of the liens are asserted were actually "sacked," but insists that the evidence does not show that "any work was

[2] It is further complained that certain witnesses, who were not subpoenaed and not called as witnesses, were allowed their wit-performed" either in "sacking or driving" ness fees. It is said that a witness cannot recover fees unless his attendance is compulsory. It has long been the rule in this state, under section 482, Rem. & Bal. Code, that the time and mileage of a witness who is in attendance at the trial, although not subpoenaed, may be taxed as costs, where, as it seems to have been in this case, the course of the trial makes the use of such witnesses unnecessary. Dolan v. Cain, 59 Wash. 259, 109 Pac. 1009. Judgment affirmed.

the logs upon which the other four liens were allowed. A witness defined "sacking" as the actual handling of a log by putting it into the river from a sand bar or other obstruction or place of lodgment, and defines "splashing" as the driving of logs by opening the dam. The right to the liens i based upon the statute. Rem. & Bal. Code. § 7123. The applicable part of the statute is as follows: "Provided, that when a navigable stream upon which it was not previously practicable to float logs or other timber products is improved by clearing out

GOSE, PARKER, and CROW, JJ., concur. rocks, straightening the channel, or the con

(67 Wash. 553)

FRANCK v. PITTOCK & LEADBETTER

LUMBER CO.

(Supreme Court of Washington. March 20, 1912.) LOGS AND LOGGING (§ 14*)-IMPROVEMENT of STREAMS-TOLLS.

Under Rem. & Bal. Code, § 7123, providing that when a navigable stream, on which it is not practicable to float logs, is improved by the corporation having a charter thereon, thereby assisting the floating of logs, the corporation shall be entitled to driving charges on all logs placed in the stream without request to drive the same, where a stream not practically navigable for floating logs is improved, the company making the improvement is entitled to driving charges on all logs, although no actual work is done in handling them; it being sufficient if the improvement aided in floating them.

[Ed. Note.-For other cases, see Logs and Logging, Dec. Dig. § 14.*]

Department 1. Appeal from Superior Court, Clarke County; Donald McMaster, Judge.

Action to foreclose liens by L. S. Franck, receiver of the Washougal River Improvement & Log Driving Company, against the Pittock & Leadbetter Lumber Company. From a decree for plaintiff, defendant appeals. Affirmed.

Miller, Crass & Wilkinson, for appellant. Platt & Platt and Hugh Montgomery, for respondent.

same.

* *

struction of wing dams and sheers by the corporation having a charter thereon, and thereby aiding and assisting the floating of logs and other timber products, a corporation shall be entitled to driving charges on all logs or other timber products placed in said stream without request to drive the The court found: "That before said corporation entered upon said river and cleared the same, as aforesaid, said river could not be prudently relied upon for the purpose of floating logs or other timber products, without the assistance of artificial means, or improvements, and that said corporation has improved said river by clearing out rocks, straightening the channel, and constructing wing dams and sheers, thereby aiding and assisting the floating of logs and other timber products, and that before said improvements were so made said stream was not navigable for the purpose of driving logs or other timber products, and before such improvements were so made on said river by such corporation logs would be caught in sloughs and piled up on bars, which are very prevalent in said river, and said improvements have made it possible to, and have, sheered logs out of sloughs and off of said bars."

While the statute may not be happily worded, it clearly means that where a boom and driving company has made improvements upon a stream, in a measure navigable but not practicably navigable for the floatage GOSE, J. This is a consolidated action of logs and other timber products, which prosecuted to foreclose seven liens claimed aid and assist the floating of the logs, it upon certain logs for sluicing, sacking, driv- shall be entitled to driving charges on all ing, sorting, holding, and delivering them. logs placed in the stream, "without request For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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