end of Lake Fernan, and also owns the | venient and cheaper for defendants to float land through which the stream or outlet their logs down this stream over plaintiff's from the lake flows. During the high-water premises than to remove them in any other season this stream flows considerable vol- way affords no reason whatever for their ume of water and will float logs, but is very trespassing upon plaintiff's premises and low during the low-water season, and is building dams thereon, and maintaining not capable of floating logs. Some time guards to protect the same and flooding his about the year 1900 the plaintiff construct- | premises. There can be no question but ed a dam on his premises across this stream what they have a right to float their logs or outlet to the lake so as to raise the wa- down the stream when it is navigable. ters of the lake something like three feet. Powell v. Springston Lumber Co., 12 Idaho, By means of this dam the stream could be 723, 88 Pac. 97; Johnson v. Johnson, 14 flooded and logs carried down into Coeur Idaho, 561, 95 Pac. 499. But this right gives d'Alene Lake by the flood water. He ap- them no license to trespass upon plaintiff's pears to have maintained this dam for some lands and erect structures thereon and to time, charging the owners of timber 50 cents go and come through and over his premises per 1,000 toll for floating their logs through without let or hindrance. They should be the dam and into Lake Coeur d'Alene dur-required to respect the private rights of ing the low-water season. Some time sub sequent to 1900 and prior to the commencement of this action, one Chapin, who owned lands bordering on Fernan Lake, notified plaintiff that, if he continued to maintain the dam and flood his (Chapin's) lands, he would hold the plaintiff for such damages as he sustained by reason thereof. For this or some other reason the plaintiff removed a portion of the dam and allowed it to fall into a state of disrepair. Some time in the month of March, 1909, and during the low-water season, the defendants entered upon plaintiff's premises over his protests and objections, and repaired and reconstructed the dam, and kept men on hand to guard the same and proceeded to use the dam for flooding the stream and floating their logs down to Lake Coeur d'Alene. Plaintiff served repeated notices upon them, and protested against their action, but they paid no attention to the same, and he thereupon commenced this action. Defendants admit plaintiff's title and ownership as alleged by him, and, in fact, admit all the material allegations of the complaint. They then allege that they have a large quantity of lumber in Lake Fernansomething like 2,000,000 feet-and that it would cost a large sum to remove the logs in any other way than to float them down this stream; that the stream can be made capable of floating the logs by means of this dam and that to do so will be no material damage to the plaintiff; that plaintiff's land is not good for anything anyway, and that plaintiff's charge of 50 cents a thousand was unreasonable and unjust, even if he had a right to charge for such purposes. They also allege that this stream forming the outlet from Lake Fernan is a navigable stream during the high-water season, and capable of floating logs down to Lake Coeur d'Alene. They further allege that it would be a great injury and damage to them if they were not permitted to float their logs down this stream. The defense in this case is sham and frivolous, and utterly devoid of any element of merit. The fact that it would be more con property just the same as any one else; and the fact that they owned lumber about Lake Fernan or millions of feet of logs floating in the lake furnishes no reason, pretext, or excuse whatever for their turning trespassers and wrongdoers themselves and riding over the rights of others. The fact that appellant's land may not be of any particular value for agriculture or any other purpose has nothing to do with this case. It is plaintiff's land, and he has a right to use it as he pleases and to exclude every on else. It does not lie in the mouth of a tres passer to justify his wrongdoing by saying the premises were of no value anyway. He may show that in mitigation of damages but not in justification of his wrongful act. No right whatever is shown by defendants to do the things complained of, nor do they show even color of title. The only previous use they appear to have ever made of this dam was when they paid the appellant toll for the use. This could never ripen into an easement or prescriptive right. The mere plea of convenience gives them no legal standing. If it did, a man's property rights would never be safe or secure. De Camp v. Thompson, 16 App. Div. 528, 44 N. Y. Supp. 1014; Banks v. Frazier, 111 Ky. 909, 64 S. W. 983. When they bought lumber on Lake Fernan, they did so with notice of the existing legal avenues and means of ingress and egress, and, if those modes were not sufficient, the law prescribes an ample remedy for securing more ready and available modes. Potlatch Lumber Co. v. Peterson, 12 Idaho, 769, 88 Pac. 426, 118 Am. St. Rep. 233; Powell v. Springston Lumber Co., 12 Idaho, 723, 88 Pac. 97. But it looks with contempt and disfavor on any attempt at forcible seizure and appropriation of another's property without compensation being first made therefor. That an injunction is the proper relief to be granted in a case of this kind is clearly established. This court has repeatedly held that an injunction is the proper remedy in many cases of trespass. Gilpin v. Sierra Nevada Consolidated Min. Co., 2 Idaho (Hasb.) 696, 23 Pac. 547, 1014; Staples v. Rossi, 7 Idaho, 618, 65 Pac. 37; Wilson v. Eagleson, 9 Idaho, 17, 71 [ performance of certain work on the defendPac. 613, 108 Am. St. Rep. 110; Smith v. ant's property. Judgment was entered in Alberta & British Col. Ex. & R. Co., 9 Idaho, 399, 74 Pac. 1071; Meyer v. First National Bank, 10 Idaho, 175, 77 Pac. 334; Price v. Grice, 10 Idaho, 443, 79 Pac. 387; Shields v. Johnson, 10 Idaho, 454, 79 Pac. 394; Weber v. Della Mountain Mining Co., 11 Idaho, 264, 81 Pac. 931; Shephard v. Coeur d'Alene Lumber Co. (Idaho) 101 Pac. 591. favor of the plaintiff, and defendant moved for a new trial, and its motion was denied. Thereupon an appeal was taken from the judgment and order denying a new trial. The contention made on this appeal is that the court erred in not granting a nonsuit, and that there is no evidence whatever on which to rest the verdict and judgment. There is no substantial conflict in the evi The order appealed from is reversed, with dence. What conflict exists is mere detail, costs in favor of appellant. and does not go to the essential facts. It appears that in the month of November, SULLIVAN, O. J., and STEWART, J., 1906, one William L. James owned the ma concur. (17 Idaho, 45) LINN v. ALAMEDA MIN. & MILL. CO. (Supreme Court of Idaho. Oct. 16, 1909.) 1. PRINCIPAL AND AGENT (§ 164*)-RATIFICA TION. Where L. was employed by M. to do certain work and perform certain services, and the labor was performed for M. as principal, and the credit was extended to M., no question of agency arises, and the law of ratification is not involved in an action against a third party for the collection of such claim for services. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. § 622; Dec. Dig. § 164.*] 2. PRINCIPAL AND AGENT (§ 164*)-"RATIFICATION"-ACTS IN BEHALF OF PRINCIPAL. "Ratification" signifies the adoption or acceptance by the principal of that which was done for and in the name of the principal. The agent or assumed or ostensible agent must have acted as agent, and not as the principal. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. § 622; Dec. Dig. § 164.* For other definitions, see Words and Phrases, vol. 7, pp. 5928-5932; vol. 8, p. 7778.] 3. PRINCIPAL AND AGENT (§ 169*)—RATIFICA TION. The payment by a mining company of certain claims for labor performed on or in connection with its property under employment of a third person does not amount to an adoption or ratification or recognition of the claims of other laborers for services performed for such third person under similar circumstances and at the same time as the claim paid by the company, where the services had all been performed and the labor done prior to such payment. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 636, 637; Dec. Dig. & 169.*] (Syllabus by the Court.) jority of the stock of the appellant corporation, and at that time gave Mayo-Sachs & Co. of Butte, Mont., an option to purchase his stock, running until some time the following summer. It also appears that at the same time the Alameda Company gave MayoSachs & Co., permission to enter upon its property, and to prospect and develop the same, and do such things as they saw fit in order to determine the value of the property, and consequently whether or not they would exercise their option to purchase the James stock. The nature of this latter agreement or permission is very vague, indefinite, and uncertain. In fact, there is nothing in the record that discloses what officers of the appellant company gave this permission and authority to Mayo-Sachs & Co. to enter upon the Alameda property and examine and prospect the same. There is no question, however, but what the authority did exist. The option given by James covered his entire holdings in the appellant company, and he was at that time president of the company. The claims belonging to the Alameda Company adjoined the property of the Success Mining Company. After securing this option, Mayo, of the Mayo-Sachs Company, entered into an agreement with Mr. H. F. Samuels, who represented the Success Mining Company, whereby he secured the privilege of working and prospecting the Alameda property through the Success tunnel No. 2. He ac cordingly employed the respondent Linn to take charge of the work as foreman and superintendent, and to employ men and carry on the work of driving the Success tunnel into the Alameda property, and pros Appeal from District Court, Shoshone pecting the latter property. Respondent acCounty; W. W. Woods, Judge. Action by Ole H. Linn against the Alameda Mining & Milling Company. Judgment for plaintiff, and defendant appeals therefrom and from an order denying a new trial. Reversed. James A. Wayne and H. E. Worstell, for appellant. Gray & Knight, for respondent. AILSHIE, J. This action was instituted to collect the sum of $1,050 for labor performed by the plaintiff as foreman in the cordingly carried on this work, employed men and discharged them, made his reports from time to time to Mayo-Sachs & Co., and received checks from them for labor performed until his last claim of $1,050, which was not paid by Mayo-Sachs & Co. In the meanwhile Mayo-Sachs & Co., had made such examination of the Alameda property as to satisfy them of its values and to, in their opinion, justify them in taking up their option on the James stock; and they accordingly made final payment for the same on the 18th of June, 1907, and thereupon they reorganized the directorate of the Alameda Company, and elected one of their firm president and others, either of their firm or of their friends, constitute a majority of the board of directors. Up to this time MayoSachs & Co., had had no connection with the Alameda Company, held no stock in the company, and were in no way identified with the company, except by reason of the option they held on the James stock. Subse-, quent to the election of the new officers in the Alameda Company, Linn presented his claim to the company. It refused to pay, and he thereafter instituted this action. There is no contention made by the respondent that he was employed by the Alameda Company, nor does he contend that he thought Mayo represented the company. He admits in his evidence that he was employed by Mayo, and knew that he was working for Mayo-Sachs & Co., and that he had all of his dealings with the latter company. He does not claim that he performed any of this labor under the belief or understanding that he would be compensated by the Alameda Company; and no contention is made whatever that the Alameda Company ever contracted with him or represented that it would pay him, or that he ever in any way understood that he was performing any services for the company. The sole contention made by the respondent for an affirmance of the judgment in this case is on the ground of ratification. The evidence on which he rests that contention is substantially as follows: It appears that James was running a boarding house near the Success mines, and, according to Linn's evidence, was about the Success tunnel No. 2 several times while Linn was working there, and knew of Linn's work, and talked with him relative to the work and the prospects in the Alameda property. James also talked with Mr. Samuels, the manager and representative of the Success Company, in reference to the option given to Mayo-Sachs & Co., and the prospecting and developing work being carried on by Mayo, and also spoke to him about the contract Mr. Samuels had entered into with Mayo with reference to his working in the Success tunnel No. 2. He also told Samuels that Mayo was representing the Alameda. Samuels says that he did not know in what capacity Mayo was acting, but that he supposed he was representing the Alameda Company. Subsequent to the final purchase by Mayo-Sachs & Co., of the James stock and the election of new officers for the Alameda Company, the board of directors paid MayoSachs & Co., either a part or all of the expense they had incurred in doing this prospecting and developing work through the Success tunnel No. 2. The evidence is very vague and rather obscure on this point. we view it, however, it is of no consequence in this case. It all occurred after the completion of the work, and in no way influenced As Linn's action, or deceived or misled him in any way, and it carried no promise to pay him. Ratification signifies the adoption or acceptance by the principal of that which was done for and in the name of the principal. The agent or assumed or ostensible agent must have acted as agent, and not as the principal. Clark on Contracts, § 303; Minnich v. Darling, 8 Ind. App. 539, 36 N. E. 173; Mitchell v. Minnesota Fire Ass'n, 48 Minn. 278, 51 N. W. 608; Backhaus v. Buells, 43 Or. 558, 73 Pac. 342. Linn does not claim that he contracted with Mayo as the agent of the Alameda Company, or that he thought him to be the agent of that company. He does not claim to have parted with his labor through any false impression given by James or the Alameda Company, nor does he claim that he at any time thought or had reason to believe that the latter company would pay him. The fact that the Alameda Company may have after the work was completed paid Mayo-Sachs & Company for some or all of the money they had expended or work they had caused to be performed through the Success tunnel would not of itself obligate them to pay any one else, nor would it mislead any one who had already performed labor on the faith of Mayo's credit, nor would it create any element of estoppel against the Alameda Company or impose any liability against them for other debts of Mayo-Sachs & Company that had been previously incurred. As to the receipt of benefits, this is not a case like one of the purchase of goods or the like where the party must restore the articles or pay for benefits received. This work was done through the tunnel of another property and for the sole purpose of satisfying Mayo-Sachs & Co., as to the value of the Alameda property. It was not done for the development or permanent improvement of the company's property. It may or may not have resulted in improving the property. While it demonstrated that the property is of some value, this work done through the Success tunnel cannot be of any permanent use to the Alameda property unless they can secure the right to work the property through the Success tunnel No. 2. It is of such a character that the thing received cannot be returned or be of any possible benefit to the one who did the work, and so he cannot suffer on account of mere failure to return. We do not mean to be understood as holding that the Alameda Company could not obligate itself to pay this claim. On the contrary, it could undoubtedly assume this debt and obligate itself to pay the same, but not under the law of ratification. This was clearly the debt of another. The credit was not extended to the Alameda Company, but was given to Mayo and his firm. It was the debt of Mayo and Mayo-Sachs & Co., so far as this record discloses. Judgment reversed; and, in view of the condition of the case and of the record be- | 4. WATERS AND WATER COURSES (§ 203*)— fore us, we will grant a new trial, so that, if the respondent feels that he can make a case within the rules of law herein announced, he may again submit his proofs against this appellant. Costs awarded in favor of appellant. PUBLIC WATER SUPPLY-WATER COMPANYPAYMENT OF DISPUTED BILL FOR WATER. In such cases the parties are not upon equal grounds. The consumer's necessities for water for business, health, comfort, and life are such as to put him at a decided disadvantage and deprive him of the right to contest an unjust claim; and it would therefore be unjust, unsafe, and contrary to public policy to invest a public SULLIVAN, C. J., and STEWART, J., service corporation with power to become both concur. (17 Idaho, 204) HATCH v. CONSUMERS' CO., Ltd. (Supreme Court of Idaho. Nov. 9, 1909.) 1. WATERS AND WATER COURSES (§ 201*)— PUBLIC WATER SUPPLY-WATER COMPANY -DUTY TO LAY LATERALS. Under the franchise granted by the city of Coeur d'Alene to the Consumers' Company to Occupy the streets and alleys of the city for the purpose of supplying the city and inhabitants thereof with fresh water, the right and authority to dig in the streets and alleys and lay pipes therein for supplying consumers with water is conferred upon the company alone, and no such right is conferred upon the individual or consumer, and the consumer acquires no right to lay pipes or acquire property in the streets and alleys, but, on the contrary, the duty to do so and the rights acquired thereby belong to the water company. It is consequently the duty of the water company to supply and lay the laterals from its main to the line of a consumer's property abutting on such street, and such laterals are the property of the water company. Bothwell v. Consumers' Co., 13 Idaho, 568, 92 Pac. 533, and Pocatello Water Co. v. Standley, 7 Idaho, 155, 61 Pac. 518, followed and approved. [Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. § 275; Dec. Dig. § 201.*] 2. WATERS AND WATER COURSES (§ 203*) PUBLIC WATER SUPPLY-WATER COMPANYRULES FOR CONDUCT OF BUSINESS. judge and jury in the determination of claims and demands it holds against the consumer. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 295; Dec. Dig. § 203.*] 5. MUNICIPAL CORPORATIONS (§ 29*)-ANNEXATION OF TERRITORY-INTERVENING STRIP OF LAND. An ordinance of the city of Cœur d'Alene, passed and approved in the month of April, 1904, including the Krotzer addition to Cœur d'Alene City within the corporate limits thereof, was not void on account of an intervening strip of land 2,663 feet in length by 2.8 feet wide at one end, and 67 feet wide at the other. Section 9 of the act of February 9, 1899, as appears at page 109, of the Session Laws of 1899, which was in force at the time of the adoption of the foregoing ordinance, provided that land or territory laid off or subdivided as provided by statute "shall be regarded and treated as contiguous to such city or town, notwithstanding any stream or embankment or any strip or parcel of land not more than 200 feet in width may be or lie between such land or territory and the corporate limits of such city or town." Corporations, Cent. Dig. 88 74, 75; Dec. Dig. [Ed. Note.-For other cases, see Municipal § 29.*] 6. MUNICIPAL CORPORATIONS (§ 35*)—ANNEXATION OF TERRITORY - VALIDITY COLLATERAL ATTACK. In a case where the city authorities have by ordinance extended the city limits so as to include an addition or tract of land and the inhabitants thereof, and all parties affected thereby Under the statute of this state (section ities and have transacted their business upon have acquiesced in the action of the city author2839, Rev. Codes), and the general rule of law the theory that such territory was included applicable in such cases, a water company may make and enforce such reasonable rules and ration will not be allowed to question the validwithin the city limits, a public service corporegulations as are in harmony with law and con-ity of such action of the city council in a colsonant with justice for the conduct of its busi- lateral attack after the lapse of five years. ness, the protection and preservation of its property, and the collection of its water rentals, and in so doing may require the consumer to pay reasonable water rentals in advance, or, in default thereof, shut off the water supply, or may require a month's rent to be paid at the end of the month, or, in default thereof, shut off the water until such time as the rent due is paid. [Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. § 295; Dec. Dig. 8 203.*] 3. WATERS AND WATER COURSES (§ 203*)— PUBLIC WATER SUPPLY-WATER COMPANY PAYMENT OF DISPUTED BILL FOR WATER. A water company cannot enforce a rule requiring a consumer to pay an old or disputed bill for water furnished him at some previous time, or some other and independent use, or at some other place or residence, or for a separate or distinct transaction from that for which he is claiming and demanding a water supply, as a condition precedent to supplying him with water, where he tenders payment of the established water rate in advance for the service he is demanding. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 295; Dec. Dig. § 203.*] [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 103; Dec. Dig. § 35.*] 7. WATERS AND WATER COURSES (§ 201*)PUBLIC WATER SUPPLY-WATER COMPANY. Under the terms of a franchise ordinance, wherein it is provided that the company receiving the franchise shall not be required to extend its water mains along any ungraded street or alley, no question as to the construction of such provision can arise in a case where the company has, in fact, extended its main along such ungraded street. After so doing, the company cannot refuse to supply consumers along such street on the theory that it was not compelled to build along such street in the first place. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 275; Dec. Dig. § 201.*] 8. WATERS AND WATER COURSES (§ 201*)PUBLIC WATER SUPPLY-WATER COMPANYDUTY. A corporation receiving a franchise from a municipality in this state authorizing it to supply the inhabitants with water by accepting such franchise and attempting to operate thereunder enters into an implied contract to serve all the inhabitants of such municipality without dis- ter pipes therein, extending from his house tinction or discrimination upon such persons to the curb line in Third street in front of paying it the established rates, and complying with the reasonable rules and regulations of such company [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 275; Dec. Dig. § 201.*] 9. CONSTITUTIONAL LAW (§ 278*)-DUE PROCESS OF LAW - PUBLIC SERVICE CORPORATION-PERFORMANCE OF DUTY. To compel a public service corporation to live up to the law of its existence, and to discharge the duties for which it was organized and for which it received its franchise, can in no case amount to a confiscation of its property, or taking its property without due process of law, even though such requirement necessitates the corporation using a part or all of its property or investing its money in order to meet its duties and obligations. [Ed. Note.-For other cases, see Constitutional Law, Dec. Dig. § 278.*] 10. CONSTITUTIONAL LAW (§ 278*)-DUE PROCESS OF LAW-WATER COMPANY-COMPULSORY SERVICE. There can be no element of confiscation or taking property without due process of law in a case where a writ of mandate is issued to compel a water company to put in laterals and service connections from its main to the property line of an abutting owner at an expense of $8.50, where he tenders the monthly water rate of $1.50 in advance. In such case the rental rate constitutes a fair and reasonable income and revenue on the sum invested, and compulsory service in such case contains no element of confiscation. [Ed. Note.-For other cases, see Constitutional Law, Dec. Dig. § 278.*] his premises. He alleges that the water rate for the service he requires and has demanded is $1.50 per month payable in advance, as fixed by the water commissioners. appointed in conformity with the law for the establishing of water rates to be charged by the defendant company. He also alleges that he tendered the company at its office one month's water rent, and demanded that it make the connections and turn on the water for his use; "that the company thereupon refused and declined to do so unless he would also pay it the sum of $8.50 for making the tap in its water main, or deposit the sum of $15, the same to be refunded when the tap is taken out, less the actual cost of labor and cost of one corporation cock, or, in lieu thereof, that he should deposit $40 in cash, the same to be applied on payment of water to be used from said tap;" that the company now is and has been for more than five years last past operating in the village of Coeur d'Alene, under the terms of a franchise of the village embodied in Ordinance No. 93 of said village, and that it is collecting monthly water rates in advance for water furnished to the inhabitants of the village; that the water rates have been established by a commission appointed in conformity with law, and which said commission established rates to 11. WATERS AND WATER COURSES (201) be charged on the 14th day of October, 1907, PUBLIC WATER SUPPLY-WATER COMPANY- and that the rate so established that applies A public service corporation organized for to a service such as plaintiff demands is the purpose of supplying the inhabitants of a municipality with water is not justified in as- $1.50 per month; that the defendant comsuming that the people it is to serve are dis-pany has a water main on Third street in honest, and that they will demand and pay for front of plaintiff's property, and is furnisha month's water supply merely for the purpose ing other consumers along that street with of entailing upon the company the expense of putting in laterals and service connections, and water for which it is charging and receiving that they will thereafter refuse to take water the sum of $1.50 per month in advance; that and thereby discommode themselves and depre- the company has an abundant supply of ciate their own property, and the courts will fresh water unsold, and is able to supply not base decisions upon such an assumption. [Ed. Note.-For other cases, see Waters and the plaintiff with all the water he demands. Water Courses, Cent. Dig. § 275; Dec. Dig. § Plaintiff prays that a writ of mandate issue 201.*] against the defendant requiring and compelling it to make the necessary connection with its water main, and supply plaintiff with water upon receipt of the rental rates as established by the board. An alternative writ of mandate was issued against the defendant, and it has answered, admitting plaintiff's demand, and that it has a water main on Third street in front of plaintiff's house, and that it has refused to supply the plaintiff with water unless he accede to its requirements as set out in plaintiff's complaint. (Syllabus by the Court.) Original application of Albert L. Hatch for mandamus to be directed to the Consumers' Company, Limited. Writ granted. Reed & Boughton, for plaintiff. R. H. Elder and Gray & Knight, for defendant. AILSHIE, J. This is an original action commenced in this court, praying for the issuance of a writ of mandate against the defendant corporation, requiring and commanding that it connect plaintiff's water Defendant has also pleaded further matpipes with defendant's water system in the ter in defense of the action, in substance, as city of Coeur d'Alene. The complaint al- follows: That prior to the construction by leges that the plaintiff is the owner of a plaintiff of the house for which he now lot or tract of land in Krotzer's addition to claims a water supply plaintiff carried waCoeur d'Alene City, and that he has built a ter from the faucet at the houses of some dwelling house thereon and has placed wa-of defendant's water consumers, for which For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |