Packscher v. Fuller

The opinion of the court was delivered by Anders, J. On August 22, 1868, Howard Carr, who, as grantee of the United States, was the owner of the north — 535 — east quarter of section 31, township 21 north, of-range 3 east, conveyed, by deed duly executed and recorded, to the appellant, a portion thereof described as follows: “Commencing twenty rods south of the northeast corner of the northwest quarter of the northeast quarter of section 31, township 21 north, of range 3 east, running thence eight rods west, thence twenty rods south, thence eight rods east, thence twenty rods north to the place of beginning, containing one acre.” And on October 2, 1872, Howard Carr and wife conveyed by deed duly executed to one Job Carr another portion of his said land described as follows: “Beginning at the northwest corner of the northeast quarter of the northeast quarter of section 31, township 21 north, of range 3 east of the Willamette Meridian, running thence south forty rods, thence east twenty rods, thence north forty rods, thence west twenty rods, to the place of beginning, and containing five aci’es. ” This five acre tract of land Job Carr in the year 1873 surveyed and platted as Job Carr’s First Addition to Tacoma City. On December 13, 1880, lots eight and nine, and fractional lot seven, of block thirty, of this addition, according to the plat thereof, were conveyed to the respondent Matthews, who, on April 10, 1883, conveyed by deed an undivided one-half of the same to the respondent, John N. Fuller. These lots, as designated on the ground, were, when purchased by respondents, inclosed by a fence which seems to have been maintained ever since, and which was built perhaps as early as the year 1875. The land within the inclosure has been in the possession of the respondents and their grantors ever since the fence was erected, and each and every occupant has considered and claimed it as a part of Job Carr’s First Addition to Tacoma, and not as a part or parcel of any other premises. It will be seen by an inspection of the description of the premises conveyed to the respective parties to this contro — 536 — versy that the land of the appellant lies on the west, and that of the respondents on the east, side of the dividing line between the northwest quarter of the northeast quarter and the northeast quarter of the northeast quarter of section 31, township 21 north, of range 3 east. And while the respondents at all times believed that their fence was upon this division line, the appellant has at no time claimed to be • the owner, or entitled to the possession, of any land to the east of said line. But in the year 1889 the appellant caused the land described in her deed to be surveyed, and claims to have then ascertained that a portion of her premises one hundred and nineteen feet long and nineteen feet wide at one extremity and seventeen feet wide at the other, was within the inclosure of the respondents. She demanded the removal of the fence. Her demand was not complied with, and she thereupon instituted this action for the possession of said strip of land and for damages for the wrongful detention thereof. It would seem from the pleadings in this case that the real contention between these parties is as to the location of the true line dividing their respective premises. But, from the course taken at the trial, it appears that the cause also proceeded upon the further theory of the respondents that they were entitled to the disputed premises by virtue of having been in adverse possession thereof for the period of time prescribed by the statute of limitations. The court recognized the question of adverse possession as being properly involved in the case, and instructed the jury upon that subject. The court, in effect, charged the jury that ten years’ adverse possession would bar plaintiff’s right of recovery. This, the appellant claims, was error, ‘ and insists — (1) That the statute passed in the year 1881 (Code of 1881, §26, Code Proc., §112), limiting the time for the commencement of actions to recover the possession of real estate to ten years after the cause of action shall have accrued, is not applicable to this case; and (2) that — 537 — if it is applicable then the time must be computed from the taking effect of the statute, and that the jury should have been so instructed. We think the statute of 1881 must govern, unaffected by the provisions of the prior law. and that the plaintiff (appellant here) had the full period of ten years after it took effect in which to commence her action. No mention is made of existing rights of action in this statute of 1881, and we cannot presume that the legislature intended it to have a retrospective operation in the absence of anything more indicative of such an intention than the general language of the provision itself. Sohn v. Waterson, 17 Wall. 596. The rule as to which statute governs when a change has been made in the period of limitation is laid down in Wood on Limitation of Actions, p. 30, as follows: “If, before the statute bar has become complete, the statutory period is changed, and no mention is made of existing claims, it is generally held that the old law is not modified by the new, so as to give to both statutes a proportional effect; but that the time past is effaced, and the new law governs. That is, the period provided by the new law must run upon all existing claims, in order to constitute a bar. In other words, the statute in force at the time the action is brought controls, unless the time limited by the old statute for commencing an action has elapsed, while the old statute was in force, and before the suit is brought, in which case the suit is barred, and no subsequent statute can renew the right or take away the bar.” It is true that § 133 of the Code of Procedure provides that when a limitation or a period of time prescribed in any existing statute for acquiring a right or barring a remedy has begun to run before this code takes effect, and the same or any other limit is prescribed in this code, the time which has run shall be deemed part of the time prescribed by such limitation, but this court held, in Baer v. Choir, 32 Pac. Rep. 776, that inasmuch as this provision — 538 — was not a part of the general statute of limitations found in chap. 2 of the Code of 1881, as passed by the legislature, but was originally § 1291 of the act of November 16, 1881, relating to crimes and punishments and proceedings in criminal cases, and also § 1683 of the act of November 1, 1881, defining the jurisdiction and practice of probate courts, said general statute is not affected or controlled by it. That section can, therefore, have no bearing upon this case and will not be further considered. It is not contended by the respondents that this action Avas not begun within ten years after the statute of 1881 Avent into operation, and it therefore follows from what we have already said that the question of adverse possession must be eliminated from the consideration of this case. And, indeed, the same result Avould follow if the former statute of limitation of twenty years could be pleaded in bar of the action. This leaves but one question to be determined, namely, Avhat is the proper method of determining the location upon the ground of the dividing line between the subdivisions above mentioned of the land formerly owned by Howard Carr? It is claimed by the respondents that this line Avas correctly ascertained and established Avhen the addition to the city was surveyed and platted where respondents and their grantors have always claimed it to be, and that it cannot now be changed after the lapse of so many years. In making the survey of the five acre tract conveyed to Job Carr, the surveyor located the northeast corner of the northAvest quarter of the northeast quarter of section 31 — the starting point mentioned in the deed and also in that of the appellant— at a point on the north line of the section 1320 feet west of the northeast corner thereof as established by the government survey, on the theory that, as the patent to Howard Carr stated that that quarter section contained one — 539 — hundred and sixty acres of land, the point sought for must of necessity be that distance — one-fourth of a mile — from the corner post. From the point thus established he proceeded to lay off the land covered by the deed by following the courses therein specified, and it is insisted that the north and south line thus located is the true line between the premises in dispute. This is controverted by the appellant. And it is urged on her behalf that the starting point called.for in the deeds from Howard Carr lies midway between the northeast and the northwest corner of that quarter section. On this theory the appellant’s survey was made. The surveyor who did the work testified that he ascertained this starting point by first platting the entire section, according to the-government survey as shown by the original government posts, all of which were found, as well as the witness trees to those posts; that he carefully measured the four boundaries of the northeast quarter and established the middle points of those boundaries, and then struck lines across, and quartered the northeast quarter; that in fact all of the Boundaries were less than half a mile in length, although represented as being half a mile in the government field notes. In other words, he fixed his starting point exactly in the middle of the line between the northeast corner of the section and the half-mile post west on the north line, according to actual measurement upon the ground. And we think that the point so established was the true starting point called for in the deeds, and that a line drawn south from that point to the middle point of the south boundary is the true line of division between the premises in controversy. If the land in dispute lies west of that line, then the appellant is entitled to recover its possession, but otherwise if it lies on the east side thereof. And this will be the only question to be determined upon a new trial. The judgment is reversed, and the cause remanded to — 540 — the court below for a new trial in accordance with this opinion. Dunbar, C. J., and Hoyt and Scott, JJ., concur. Stiles, J., disqualified.