Flint v. Long

The opinion of the court was delivered by Dunbar, J. The plaintiffs and defendants in this case derive their respective claims of title from a common source, namely, one D. T. Wheeler and his wife. The land in controversy is a part of the tract of [345] tl thirty acres off from the south side of the east 120 acres of what is known as the C. D. Boren Donation Olaim ” in the city of Seattle, o.f which D. T. Wheeler and wife were on the 7th day of December, 1870, seized and possessed in fee simple. Wheeler and wife on the 10th day of December, 1870, being still the •owners of a certain, five acres of said thirty acres, in which tract of five acres is included the parcel now in dispute, conveyed said five acres to one Benjamin Flint, which Flint afterwards duly conveyed to appellants. The record shows that said Wheeler and wife on December 7, 1870, conveyed ten acres out of the thirty acres above mentioned to one John Lawler and Margaret Kollock in undivided interests, and that this ten acres was on April 10, 1882, partitioned in severalty between these grantees. This ten acres abuts on the west boundary of the five acres deeded to appellants and does not overlap any part of the latter according to the description in the respective deeds. Lawler, however, in platting, his part of the said ten acres staked it out on the ground, not according to the description of his deeds, but so as to include the west 102 feet of the five acres owned by appellants. The land in controversy is a part of this strip of 102 feet, and corresponds with lots 5 and 6 of block 4 of Lawler’s addition, as the same were actually staked out on the ground. The description in the paper plat, however, follows the description of the Lawler deeds, and does not purport to cover any part of said strip of 102 feet. The respondent Long became the. purchaser of lots 5 and 6 of block 4. of Lawler’s Addition, so that the question is: Who is entitled to the parcel in dispute by reason of these conveyances ? At least, that would be the question, if there was not any question of the statute of limitations in the case. Mary Mona346 smith is the tenant of respondent Franklin P. Long herein, and was made a party to this action, which is an action in ejectment. The defense of adverse possession for ten years prior to the commencement of the suit under said alleged color of title was set up by the respondents, and the view we take of this issue, renders unnecessary the discussion of any other propositions. Conceding the necessity under the provisions of our statute, to show color of title on the part of the respondent in this case,—a question upon which we do not now pass,—it seems to us that such color of title was fairly shown. All that is necessary to be shown is that there was a proof of colorable title under which the entry or claim has been madp in good faith. The land in question was purchased by the respondents and the platting on file merely represented the lots as staked out upon the ground, and a deed to certain lots purporting to convey land actually staked out upon the face of the earth to correspond with the deed, would certainly be a purchase and an entry thereunder, if such entry wTas made in good faith. It is but a.prudent practice, and certainly a common one, when people are buying lots, to view the lots as actually staked out upon the face of the earth. Devlin on Deeds, § 1022, says: “ The words on the face of a map of a town ‘ as laid out ’ by a certain person, are equivalent to ‘as surveyed’ by him, and embrace a reference to the monuments placed on the land by the surveyor.” So that the pertinent question in this case is: Has there been an open, notorious, undisputed and adverse possession of the land in controversy by the respondent and his grantors for ten years immediately preceding the commencement of this action ? The court who tried the cause found as a fact that [347] the defendant Franklin P. Long and his grantors have been in actual, open, notorious and exclusive possession adverse to the plaintiffs and each of them, of every part and parcel of the land in question from and ever since the 23d day of May, 1883, until the day of ■ the hearing and trial under color and claim of title adverse to the plaintiffs. This action was commenced August 10, 1893. A careful investigation of all the testimony in this case leads us to the conclusion that the court was warranted in such finding. The testimony is too long and too much diversified to specially refer to it, but we do not think that we shall have to go to the extent that we did in Bellingham Bay Land Co. v. Dibble, 4 Wash. 767 (31 Pac. 30), to sustain this finding. It is true, there is some conflict in the testimony, and parties were introduced to testify that they had been upon these lands at the time testified to by the defendants’ witnesses, and that such improvements as they testified to did not exist, but the parties wTho had procured these improvements made and had paid for them, and witnesses who made some of the improvements, testified in regard to the making of them, and to the time of the making of them. It appears from the testimony that during the winter of 1882 and the early spring of 1883, shortly after the purchase of these lots by Mrs. Malson, that she employed a man to clear the same — that he went upon the lots, cut down the timber that yet remained standing upon them, cut down the brush — of which it seems there was an abundance on the lots — and cleared the lots off, planting in the month of February a considerable portion of it to shrubbery, and that he built a rude fence around three sides of the land in dispute, [348] (testimony showing that the other side was inaccessible to stock on account of its roughness) — and from the character of work which was shown by these witnesses to have been done upon this land, the face and appearance of the ground must have been completely changed, so^that notice would have been given to any one who saw the land that possession had been taken of the same, and improvements made thereon, which improvements would be inconsistent with any other theory than the theory of possession and ownership. Shortly after this, and according to the testimony, about the 1st of September, 1883, a house was built upon this land, which house has been occupied by the respondent and his grantor or their tenants practically ever since it was built. It is true that this house was not a very pretentious one, being a board house with the boards running up and down, and a shingle roof, and, as the man testified who built it, from 20 to 24 feet long; but unpretentious as it was, it has been occupied all this time by families consisting of women and children, and the testimony is undisputed that since the fall of 1886 it has been occupied continuously by Mrs. Monasmith and her family, and that she has paid the rent, which from the testimony appears to have been from two to four dollars per month, to the respondent, or his agent, Mrs. Ross. If the testimony of the witnesses for the defense be true, the possession in this case has not been of a doubtful character, but has been open and notorious, and the improvements made substantial, and while, as we before said, there is some conflict as to when the first improvements were made — namely, the clearing and the setting out of the-.shrubbery — yet, from a perusal of this testimony, we are not prepared to say [349] that the judge who saw the witnesses and heard them testify was not justified in reaching the conclusion which he did. The judgment will, therefore, be affirmed. Scott, Anders and Gordon, JJ., concur. Hoyt, 0. J., dissents.