73 Wash. 127 | Wash. | 1913
Lead Opinion
This action involves the ownership and right of possession of a strip of land 120 feet in width by about 2,500 feet in length. Respondent, alleging the ownership and right of possession in itself, brought the action, alleging the claim of appellants to the ownership, and that under this claim they were intending to take possession and deprive respondent of its use and occupancy, and praying for a decree putting it in possession of the strip and enjoining the appellants from asserting any claim thereto. The appellants, by answer, asserted their title and ownership of the strip, and prayed a dismissal of the action. A temporary restraining order was issued by the court, enjoining appellants from taking any steps to assert their claim, and the cause proceeded to trial.
The first error assigned is the denial of these motions. We can find no error in these denials. The evidence was of such a character that the jury could determine that the respondent was right in its contention, and it is not for us to say that, under these circumstances, the verdict should have been otherwise. It has so often been held that the verdict of a jury upon an issue correctly submitted to it is controlling on appeal that we will seek no other reason for overruling this assignment.
It is next contended that two instructions-were erroneous. The instructions given by the court are not sent up. The two complained of are printed in the brief. This is .not sufficient to raise any question of error. We have, in connection with other courts, often said
“If you find from the evidence that such original government monuments commonly known as the initial point can be definitely ascertained, then in this case you will ascertain from the evidence as to whether or not the measurements as testified to by the witnesses for the plaintiff are correct, and if you so find then your verdict will be. for the plaintiff.”
Appellants attack the instruction as not being consistent with the two preceding instructions, and thus confusing the jury; but we do not know what these two preceding instructions were, and hence we cannot say there is any inconsistency or confusion. As it stands alone, we can see no error in it. If, knowing the true initial point, the measurements submitted
The next instruction complained of is:
“You are further instructed that if you find from a preponderance of the evidence, that the fences of the defendants Hein or Weidlich, or either of them, are upon the property of the plaintiff or any part thereof, your verdict will be for the plaintiff.”
This instruction was evidently intended to cover a disputed point in the evidence as to whether these fences were on plaintiff’s or defendants’ lands. We must assume the jury were properly instructed as to the proper rules for determining to whom the land belonged; and this being done, it would follow that, so far as the claim of ownership or possession-was represented by the fences, plaintiff would be entitled to a verdict if defendants’ fences were on plaintiff’s lands. The objection is that the instruction is redundant and surplusage; but, for the reasons heretofore given, we cannot say whether it is or not, and hence we find no error in it.
The next error assigned is to the ruling of the court upon an objection made during the examination of a civil engineer, who was detailing a survey made by him. A question was asked to which no objection was made, and the witness answered. Counsel for appellants then .said: “We object to the use of legal propositions.” The court: “Objection overruled.” Mjr- Hastie: “It is incompetent, immaterial and not responsive to the question. I think that is not a question for the surveyor to settle.” Mr. Carr: “I want to know what he runs his line by.” The court: “Objection overruled.” The first objection called for no ruling by the court, since it was not asked to strike the answer. Under our practice, if an answer contains improper matter, the court should be asked to strike it. In his second objection, counsel makes it plain that the objection was based upon the answer as not being
The judgment is affirmed.
Crow, C. J., Main, Ellis, and Fullerton, JJ., concur.
Rehearing
On Petition for Rehearing.
[Decided August 23, 1913.]
Appellants, in a petition for rehearing, call the attention of the court to the fact that, subsequent to the argument of this case and its assignment for opinion, a supplemental transcript was filed containing the instructions referred to in the opinion filed April 19th, 1913.
When the opinion was written, not finding any other instructions than those referred to in the briefs, those instructions were necessarily examined and treated as if. standing alone.
The case has now again been examined and the assignment of error reviewed in the light of the supplemental .transcript, and the court still adhering to the conclusion first reached, and finding no prejudicial error, the petition for rehearing is denied.
