38 Wash. 480 | Wash. | 1905
This is an action in ejectment, the plaintiff alleging, among other things, that, in the month of July, 1880, he entered into- the possession of the land in controversy, which was lot 12, in block 30, of Bell & Denny’s First Addition to the city of Seattle, and that said land, at the time of entry thereof, was vacant and unoccupied; that ever since'said month of. July, 1886, and up to the 1st day of December, 1898, he was in the actual, continuous, exclusive, peaceable, hostile, and adverse possession of said premises, claiming ownership by virtue of a claim of right; that, while plaintiff was so seized and possessed and peaceably enjoying said premises, said defendant, on or about the 1st day of December, 1898, without right or title, entered into possession of the demanded premises, and ousted and ejected said plaintiff therefrom, and ever since and now wrongfully withholds the possession thereof from said plaintiff, to his damage in the sum of $720. The demand is for a recovery of possession of the premises, and for the sum of $720 damages for withholding.
The answer denied the possession of the plaintiff as alleged, and alleged possession on the part of the defendant, during all the times mentioned in the complaint, and that it was the owner in fee simple of the premises. For an affirmative defense defendant alleged that, on or about the 14th day of April, 1898, it instituted an action in the superior court of King county, against the plaintiff in this action, to- recover possession of the said lot 12; that the defendant in that action, the plaintiff in this, duly entered his appearance as defendant in said action, and duly filed an answer therein; that said cause was tried on the issues of fact raised by the complaint therein and the answer of the defendant, copies of which are set up as exhibits, and referred to in the answer; that upon trial on the 22d day
The court found the following facts: That the defendant has, since the 30th day of November, 1880, been in the possession of the lot in dispute; that the plaintiff, without any claim of right and without any color of title, entered upon a portion of said premises below the line of ordinary high tide; of the waters of Elliott bay, and beyond the meander line, and took unlawful possession thereof on or about the 1st day of August, 1893, without the knowledge or consent of the defendant- or its agents, and erected a shanty as a squatter upon said premises, which he occasionally occupied until about the 14th day of April, 1898 when he was ejected therefrom by a writ of restitution, issued out of the superior court of King county in
As we view the case, as shown by the record, it is not necessary to discuss many of the questions- raised by the appellant; for instance; it is claimed in the first assignment of error that the demurrer to the defendant’s answer should have- been sustained, for the reason that there is not a sufficient allegation of ownership of title-—the allegation being that the respondent has been and is now the owner in fee; etc., under and by virtue of a certain deed of conveyance from the Seattle & Walla Walla Railroad Company, without alleging that the grantor had title to the same. Whatever may be the technical law on this subject, it is unimportant here for the reason that, in this kind of an action, the plaintiff, if he prevails at all, must prevail upon the strength of his own title, and not upon the weakness of that of the adversary. The basis of this complaint is a possessory right. There is no allegation of ownership other than ownership which flows from the possession alleged. Nor was there any attempt to show title otherwise, in the testimony offered by the plaintiff; and, if he fails in establishing the fact that, from the month of July, 1886, up to the 1st of December, 1898, or at least for ten years, immediately succeeding July, 1886, he was in
It is insisted by the appellant, who objected to' the introduction of the record in relation the former trial, that it was not a bur to this' proceeding; that the judgment in that court was not res adjudicada* of the questions raised in this action. But, whatever else may be said as to the judgment in the former action, it did establish the fact that, for a period of five days prior’ to the 1st day of August, 1893, the respondent was in the peaceable and undisturbed possession of the premises, and that the entry of appellant thereon was wrongful. That fact being established, and being the basis of a judgment for restitution, it seems to us that the allegation of the appellant that he was in constant, peaceable, and undisturbed adverse possession from July, 1886, to December, 1898, cannot he true; and we are inclined to think that the defendant was entitled to judgment on the pleadings in this case.
But, even if that be not true, an examination of the testimony in this case convinces us that there was an utter failure, on the part of the plaintiff, to establish the residence and acts of possession which he claims. Outside of the fact that, during the time of this alleged constant and adverse possession, he cultivated, improved, and proved up on a homestead, the testimony being that he had continuously made his residence on the homestead during these six years, the testimony as a whole—not only the testimony offered by the defendant but also that of the plaintiff—convinces us that, the court was right in its finding that the plaintiff had entered upon said lands -without any right or color of title, and had obtained no right to the same by possession or otherwise.
The judgment is therefore affirmed.
