On Motion to Dismiss.
Opinion by
Mr.- Chief Justice Moore.
This is a motion to dismiss an appeal as to some of the parties. The defendants, the city of Portland, a municipal corporation, W. Scott and T. McDougal, partners as Scott & McDougal, and M. J. Connelley, having been perpetually enjoined from trespassing on the plaintiff’s land and required to pay him damages arising from the injury thereto, jointly appealed from the entire decree. The city of Portland alone filed a brief, and because its codefendants did not join therein or file a separate brief this motion was interposed.
1. As the entire decree is attempted to be reviewed by all the defendants, the appeal cannot be dismissed as to any of them, for a reversal, affirmance, or modification of the determination of the trial court, will necessarily affect all of them alike. If the failure of the counsel for the codefendants to file a brief is so flagrant that the omission should subject their clients to discipline, the most severe punishment that could be legally inflicted upon them would be to deny them the right to file a brief herein, and to refuse them the privilege of appearing in person or by counsel at the trial of the cause in this court.
Argued March 14, decided April 4, 1911
[114 Pac. 933.]
Statement by Mr. Justice McBride.
This is a suit by John P. Sharkey Company, a corporation, against the City of Portland, M. J. Connelley, and Messrs. Scott & McDougal, to restrain the defendants from wrongfully removing earth from an excavation being made in the improvement of Franklin Street in the city of Portland, and to compel defendants to account for and pay the value of earth which plaintiff claims has been already unlawfully converted.
The complaint, which is too voluminous for insertion here, alleges in substance, that W. Scott and T. McDougal, defendants, are partners, doing business under the firm name of Scott & McDougal; that plaintiff, during all times mentioned in the complaint, was the owner in equity of all of blocks 23 and 24 in Waverleigh Heights, in the city of Portland; that Franklin Street, between Thirty-first and Thirty-third streets, lies between blocks 23 and 24; that the John P. Sharkey Company is the owner in equity of all the dirt in such street, and of the title to such street, subject only to the easement for street purposes for the benefit of the public therein; that the city of Portland has let a contract to excavate Franklin Street, between Thirty-first and Thirty-third streets, lying opposite and between blocks 23 and 24, Waverleigh Heights, to the established grade, and also to lay artificial stone sidewalks and curbs; that such contract was let to M. J. Connelley, defendant, who sublet it to defendants Scott & McDougal; that they are, and have been during all the times mentioned herein, fulfilling the same; that the contract provides that the contractor shall make the excavation at an agreed price, but it is silent as to where he shall deposit the earth so excavated; that the city of Portland has provided a district, composed of property belonging to plaintiff, to pay for the excavation, because such property will be specially and peculiarly benefited by the improvement, and that defendants are attempting to make the excavation at the expense and charge of plaintiff’s property only; that plaintiff is the equitable owner, not only of blocks 23 and 24 in Waverleigh Heights, but of the soil in Franklin Street between those blocks, and it has in no way disposed of its ownership in the soil; that plaintiff has heretofore requested and demanded of defendants, and each of them, that they deposit the soil belonging to plaintiff which has been excavated out of Franklin Street between blocks 23 and 24, Waverleigh Heights, upon block 24 thereof, so that plaintiff will not be deprived of its use and will receive the benefit of the contract; that plaintiff has offered the most reasonable and inexpensive place for defendants to deposit the earth, on block 24, Waverleigh Heights; that plaintiff, as an equitable owner of the property, claims the benefit of the excavated soil for the filling of its adjacent property; that the defendants, and each of them, are unlawfully claiming the right to take the earth belonging to plaintiff, and excavated out of Franklin Street between Thirty-first and Thirty-third streets, and divert it to their own use; that defendants, and each of them, have refused and continue to refuse to deposit the soil so excavated upon block 24, as requested by plaintiff; that there is still a large amount of earth to be excavated out of Franklin Street between Thirty-first and Thirty-third streets, and unless enjoined by this court defendants will continue to excavate the same and divert it elsewhere, to the irreparable injury of plaintiff; that defendants by these acts destroying plaintiff’s estate in the real property, in violation of law, and diverting it to their own use; that when the dirt is so taken and diverted there will be no adequate and complete remedy at law for the estimation of damages of the premises; that defendants are proceeding under a claim that they are authorized so to do by the city of Portland; that plaintiff has no plain, speedy, or adequate remedy at law; that defendants, by their acts and proceedings are taking the property of plaintiff in violation of law, of the State Constitution, and of the Constitution of the United States; that plaintiff is unable to state how much earth has been removed from Franklin Street between Thirty-first and Thirty-third streets, and prays the court that the defendants be required “to acquire and state the amount of earth and other material heretofore removed by the defendants and converted to their own use from Franklin Street between Thirty-first and Thirty-third streets.”
*3562. An affidavit filed by counsel for Scott & McDougal and' Connelley states that he assisted a deputy in the office of the city attorney of Portland in writing a brief on behalf of all the defendants which he supposed had been printed and filed until this motion was interposed; but that the city attorney without his knowledge caused another brief to be prepared, printed, and filed with the clerk of this court, in which epitome of the facts and legal principles thus set forth the city of Portland alone controverts the equities of the decree of which it complains. This sworn declaration is corroborated by the affidavit of the city attorney, thus showing that the counsel for the codefendants had made. an honest effort to comply with the rules of the court, and, such being the case, the motion to dismiss the appeal and to affirm the decree as to the codefendants is denied, and they will be allowed to file a brief, and to be heard at the trial of this cause.
Denied.