12 Wash. 342 | Wash. | 1895
The opinion of the court was delivered by
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
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
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,
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
The judgment will, therefore, be affirmed.
Scott, Anders and Gordon, JJ., concur.
Hoyt, 0. J., dissents.