LATHAM: 'V. NORTHERN PAC. R. CO.
721
no provision is found by which the county can reimburse itself for such assumption. The quasi municipal subdivision of the county known as a township is precisely what the legislature in this respect has made it, possessed of no powers or faculties, anli subject to no incidents or liabilities, other than those prescribed in the enabling act. It is not, therefore, perceivable how any court, whether of law or equity, can enforce a claim of the county against the township on account of the bonds voluntarily issued to fund the accrued interest on the townships debts, even should th.e county ever satisfy the judgment against it. The action of the county court in that transaction was violative of its. trust, as the representative of the county; and, whatever may have been or may be the rights of the constituency against the wrongful act of the justices of the.court, a court of equity, no more than a court of law, can create out of their wrong a binding obligation against the township. A court of equity cal).notmake a contract for parties, and then make a law to enforce it. While the granting of a decree of specific performance is said to rest in the discretion of the chancellor, this is a sound judicial discretion, and not one to be arbitrarily exercised or arbitrarily refused. When. it: is ascertained that. the contract is founded on a valuable consideration" its mutual enforcelllent practicable, and its enforcelllent in specie,Rsin this case, is necessary, owing to the impracticability, somewhat, of ,gj,ving . to the new bonds a true valuation in money, and the contract is certain, unambiguous, and reasonable, then the remedy ripens into a right. "The remedy of specific performance is governed by the same general principles and rules which control other equitable remedies. The right to it depends upon circumstances, conditions, and incidents, in addition to the existence of a valid contract, w:hich equity regards as essential to the administration of its peculiar modes of relief. When all these circulllstances, conditions, and incidents exist, the right is perfect in equity, and a specific performance is granted as a matter of course within the classes of agreements to which the jurisdiction extends." Porn. Spec. Perf. § 38. It results that the complainant is entitled to have the contract enforced without regard to the existence of said judgments against CaBS county. Decree accordingly.
et al. v.
NORTHERN PAC.
R. Co.
lCwtmit Court, D. Washington, W. D. April 7,1891.) 1. EQUITY-PuROlIASB 011' A. LAWSUIT-PUBLIO POLIOY.
Whe.re oomplainants have gained possession of premises by purchasing the rights with the purpose of repudiating the lease and disputing the title of defendant as landlord of their grantors, they will be relegated to such legal rights· as they may have acquired, and equity will not aid them by enjoining the efforts of defendant to regain poss68siqn even by force. Though the defendant is oonfessedly intending to regain possession of the premises by the use of force, which is unlawful, and calculated to provoke a breach of
9.
SAMB-FBDHHAL COUllTS-BREA.OH 011' THE PEAOH-INJUNOTION.
v.45F.no.11-46
722
, FEDERALf{l!iPORTER,
vol. 45.
the peace, yet, in view of the fact' tha.tthe state courts furnish abundant. means for forcible entries and breaches ofthe peace, a,federal court Will not restrain such intention by i\lj]inction. . . .
,ArJplegate M Titlow, for plaintiffsl' MitCheU,.Ashton M Chapman,' for defendant. , :' 'h
In Equity.. Bill for injunction';
HANFORD,
J. The plaintiffs in this case are the owners and in pos-
session oft! wbitrf upon which there is a warehouse and store uuilding, and in' corineetioIi with it there is a. .grid-iron, situated in the harbor of Tacoma, adjoining the track and yard oJ the .Northern Pacific Railroad Company. . 'fhespace covered by this wharf and :improvements is entirely disconnected from the upland; being distEltlt·from the shore line from 200· to 300 feet; the interWtiing space being occupied.by the railroad company, and covered by its:tracks,buildings,ltndimprovements. In fact, the wharves and improvements ofthe railroad company surround no way of the plaintiffs' premiseshn thre6' sides thereof,' ingress or egress to Elnd 'from sa.id 'premises from ,the land except over the hnprovementa owned by and in1ise of the' ra:ilroadcompany. The plaintiffs di,a not Construct the··Wharf and 'improvetneIits which they clllim".hut acquired the saine from the builders thereof, who were tenants of the railroad company, tmd who entered into possessidn ofthe.space ccivereduby said wharfElnd imprdvernents under It written lease from the railroad company, whereby they' contracted to pay ground-rent, and ripon the termination of'the lease 'to' peaceably surrEmdetpossession, 'and of'said,iElase the plaintiffshad'actual'knQwledgeiat':and before the time of theifpurchase. 'The:&bjectOfthissuit is to obtain an injunction for the protection' of plaintiffs in possession of their wharf and· improvements, the defl!ndant being now' el1gaged in extendihg and, adding to its improvelliefits by filling in with earth from the bRlik,Elnd constructing new sidettadks and switches to increase its yard room, by means of which improvements the railroad comp/Hiy pr{lposesand iiltimdsto'absorb and occupy'all the space covered by the' plairitiffs' wharf and buildings.. The question as to whaj,'disposition shall be: finally made of the premises, and as to which, if either, of these parties shall ultimately be permitted to acquire title to, or be re90gnized as owner of, the premises, cannot be determined in this suit, and the discussion thereof-at the present time is, in my opinion, premature. The only question which the court is called upon to decide is wheiher.the plaintiffsare.entitled toinvoke,the aid of a court of equity to protect them in the possession of their wharf by enjoining the defendant from proceeding with a stl'onghand, and without processof law, to dispossess them, and destroy their improvements. The plaiq,tiffs do not claim. to ,own the ,which 'they. occupyw'ifP, their 'improvements. The . .Bubmittedto the court, rests almost' entirely upon the fact of at 'the they tend that, without title other than mere possession, they are entitled to protection. th.e defendant,'wh<,hn they. say .has :no title, and therefore' no righLto interfere with thein., In thus resting their cla.im upon
LATHAM fl. NORTHERN PAC. R. CO.
possession, 'lind disclaim any rights under the lease to their grantors. They deny that they have ever occupied the position: of tenants 'to the defendant, deny that the defendant has ever made a valid lease to the premises in question, and deny its power to make a lease. In addition to the fact of possession, the only consideration for equitable interference urged is that, while the plaintiffs are without title, still, under the laws of the state, provision is made giving them, as owners of valuable harbor improvements, a preference right to acquire title from the ,state, and it is assumed that this preference right is dependent upon the Ulaintenance of the present improvements, and the continuance of plaintiffs in possession thereof.' And the plaintiffs say that they will be damaged by the loss of their preference right, unless the defendant be, restrained from interfering with their possession, and that the damages from such loss cannot be estimated. The laws of the state, however, do not give the plaintiffs, absolutely, any such right as In addition to questions to be determined as between the parties, there are provisions made in the statutes for the location of a harbor rim to be reserved from sale, which may include these premises, and which leaves the existence of a right to purchase the premises upon any condition uncertain,-too uncertain, in my opinion, to afford imyground upon which to base a decree; and the right to an injunction, in this case is left dependent entirely upo,n mere possession. The possession of the plaintiffs must be regarded tortious or lawful. If the plaintiffs are trespassers, and their possession tortious, it matters not whether ownership of the premises be in the defendant or the state of Washington,for in either caSe a court of equity will to give them relief, or ,to aid or protect thelu in their continued wrongdoing. If their possession'be lawful, it is becauf:1e of a license to them from the owner to occupy; by reason of which they are to be regarded as tenants Of the owner. I do not mean by this that it is essential to the .lawlulness of their possession that there Ilhould be a written lease, or any: ',upress contract or certificatellhowing a license from the.Qwneri but permission to occupy must have been granted, or possession aClJuieseed jij such a way as to create a tenancy ,for a definite period. or a tenallCY at will or a tenancy by au fferance. As the structures and im provements owned by the plaintiffs are in aid of commerce and of puLlic utility, and nntprohibited by any law, the state should be regardbd ashaving acqUiesced in, in their maintenance, and, as against the state, the possession isnotunlnwlul. As against the defendant, a serious question arises by reason of the mannerin wpich the plaintiffs acquired their possession. By purchasing the improvements from persons who voluntarily sustained the relation of tenants.io the defendant, the plaintiffs could, with the consent of the defendant, have succeeded to their rights as tenants; and, if occupying that position before the court, they would be entitled to its protection as 'against auycontemplated wrong on the part of their landlord. But they do such a position, :for they repudiate the lease and all its covenants.," Cenfessedly 'they have gained POf:1session of the premises
'124
FEDER.A L REPORTER,
with the deliberately formtJ intention of disputing the right and title theretofore asserted by the defendant as landlord of their grantors, who made the improvemente which they claim. If they succeed in their contention in this case, they will, by virtue of possession acquired by purchase from the tenants of defendant, have acquired a position not otherwise attainable, enabling them to commence, maintain, and win this lawsuit, or, to state the case more concisely, they will be the gainers by an investment intentionally made in a lawsuit. It seems to me hardly necessary to repeat, in this connection, what has been so often reiterated in the decision of the courts, that a purchaser of the rights of a tenant can obtain by such purchase no right superior to that of his grantor; that by such a purChase, made with knowledge of the facts, the vendee becomes substituted to the same rights, and obligated to observe and perform the duties and covenants, of the tenant whom he succeeds. One who has been let into possession of valuable property, by reason of having assumed the relation of a' tenant, will not be permitted to dispute the title of his landlord; neither can the vendee do so successfully. Public policy and. the established principles of equity forbid that any man shall profit by an investment voluntarily made in property with the object in view of defeating by litigation another's claim to the same property. By suchan investment, a man may acquirelegalrights, but for the protection ofsuch rights he should depend entirely upon the law courts, and equity should leave him to assert his legal rights in the proper forum. Neither the plaintiffs nor their grantors were ignorant of their rights, or of the defendant's rights, or lack of rights, respecting the premises at the times of the several transactions aflecting the case; nor were they entrapped by the defendant, or induced by unfair means, to hecome tenants, or to build or buy any of the improvements; and there is nothing in the facts to bring the case within any known exception to the general rule by which a tenant and those in privity with him are estopped, while retaining possession, from disputing the landlord's title. The estoppel is founded upon the possession, and not upon the instrument of demise. Hence it is of noconsoquence whether the defendant had or had not lawful authority to execute the lease. 1 Taylor, LandI. '& Ten. §§ 89,,91, 92. I cannot avoid the conclusion that, as against the defendant,thepossession of the plaintiffs of the premises in controversy is, and was at the time suit was commenced, tortious, because of their repUdiation and denialof the defendant's claim of a right of possession to which their possession is subordinate. From a careful review of the whole case I have been able to discover no ground whatever to justify the issuing of an injunction except the fact that the defendant confessedly is intending to use force to gain session of the premises in question, in order to occupy the same for its own purposes, a proceeding which is unlawful and unjustifiable, calculated to creates breach of the peace, and to encourage others to resort to force and violence in order to gain and hold mere property rights. For this reason I have felt very strongly inclined to exert the power of the
SMITH '11. BOARD COUNTY COMB'S SKAGIT COUNTY.
725
court in the interest of the public, for the double purpose of condemn. ing such unnecessary use of force, and to preserve peace and good order in the community; and if this court were a court of the state of Washington, vested with any part of the powers of the local government, and a conservator of the peace in this community, I should on that ground grant the injunction prayed for. But it is not necessary or proper for a national court to thus interfere in matters of local concern. The laws of this state make ample provision for punishing breaches of the peace, forcible entries and detainers, and the malicious destruction of property, and afford ample remedies to individuals suffering injury by such wrongful conduct. The courts of the state have ample power to enforce these laws, and apply the proper remedies in all cases for the redress of such wrongs; and I am therefore constrained to decide that the plaintiffs are not entitled to any part of the relief prayed for, and that this suit be dismissed at their costs. I shall not, however, allow the defendant to recover 'any part of the sum paid to the examiner for his fees and services in the taking of testimony, for the reason that it is apparent to me from reading the testimony, and the report of the proceedings before the examiner, that the expense of taking the testimony was unreasonably increased by the manner in which the cross·examinatidn of the plaintiffs' witnesses was conducted, and the offering of irrelevant and unnecessary testimony. I consider that the attorneys for both parties are about equally in fault for the manner in which the proofs were taken, and shall leave the parties to bear the expense in the proportion that it has been paid by them, respectively.
SmTH fl. BOARD COUNTY CoM'Rs SXAGIT COUNTY.
(CircuU Cowrt, D. Washington, N. D. March 18; 189L) L MUNICIPALITY-INOORPORATION-CoNTESTBD ELECTION-NoN-RESIDENT.
The non-resident owner of property within the limits of a proposed corporation, though not an elector, and not entitled to contest the election in the manner provided by statute, may maintain a, bill to restrain the county commissioners from canvassing .the returns of an election held under certain statutes of Washington, for the purpose of effecting the incorporation. on the ground that it was void because of a failure to comply with the statute. Where a statute providing for an election by the inhabitants within the boundaries of a proposed municipal corporation, at which the question of incorporation shall be submitted to the people, fails to provide for any census or enumeration of the people preliminary to such proceedings, a fallure to make sucb enumeration will not affect the validity of the election, Where it appears that the board of county commissioners made a record in their proceedings declariQg the number of inhabitants. A notice of such election. signed by the county auditor, who Is ea: officio clerk of the board of commissioners, ,alld ill whiqh it appears that the election was ordered by the board, is a sufficient compliance with the provision of the statute that such notice shall be given by the board of commissioners. '
2. SAME-CENSUS.
:3. SAMB-NOTIOB OF ELEOTION.