Graham v. Redland Heights Water Co.

[733]

SMITH, J.

The suit was brought against the corporation defendant and defendant Buggies and wife for trespass on plaintiff’s land, and an injunction. The case was tried on the answer of the defendant corporation only, and judgment entered against it. The appeal is by the defendant corporation from an order denying its motion for a new trial.

The alleged trespass consisted in the entry of the defendant by its agents on the land of the plaintiff for the purpose of digging a ditch for a pipe-line, specifically described in the complaint, from the main pipe-line of the defendant- corporation to the land of the defendants Buggies; and by the judgment the defendant corporation is perpetually enjoined from entering on the plaintiff’s premises for the purpose of excavating the ditch or trench thus specifically described, and from laying therein the proposed pipe-line as set forth in the complaint, “and from laying any new or additional pipe-line therein. ’ ’

The trespass complained of was actually committed by the defendant Buggies. But it appears that Mr. Buggies was a director and secretary of the defendant corporation, and that he acted under a resolution of its board of directors, of date August 9, 1901—referred to below; and it was claimed by the plaintiff that in entering upon the plaintiff’s land and upon the construction of the ditch complained of he acted as the agent of the appellant-defendant. This is denied by the defendant; but the finding of the court on this issue is in his favor and we cannot say that it is not justified by the evidence.

The defendant corporation justifies the trespass under deeds of conveyance of plaintiff’s predecessor in title, claimed to give it a right of way for its pipes over the plaintiff’s land; and to the construction and effect of these deeds much of the findings and arguments of the counsel are addressed. But from the defendant’s answer and the evidence it appears that the acts of the defendants Buggies in entering upon plaintiff’s land and commencing the construction of the proposed pipe-line was under a mere license of the appellant to them to construct a pipe-line of the capacity specified, “of good substantial material and workmanship,” at their own expense and for their own use, “for the conveyance of domestic water to their premises; said pipe-line to be constructed