Moore v. City of Walla Walla

2 Wash. Terr. 184 | Wash. Terr. | 1883

Opinion by

Hoyt, Associate Justice.

This was a writ in equity to have a certain building declared a public nuisance, and have it abated as such, and was brought by the City of Walla Walla against the defendants, who were in possession of said building. A large number of questions have been raised and ably argued by counsel, but as the Court finds difficulty in harmonizing its views as to some of the most important of them, we have concluded to pass upon only such as are necessary for the purposes of this case.

The first objection urged by the appellants to the proceedings below is, that the Court overruled their demurrer to the complaint, which they claim should have been allowed, because the complaint did not show the plaintiff entitled to equitable relief; but we think that the said city in prosecuting this action was acting for the public at large, and was, therefore, for the purposes of said suit, clothed with all the attributes of sovereignty; besides, the defendants by consenting to try the case without a jury, in our opinion thereby waived the right to afterwards object that the action was in equity rather than at law.

The principal question in the case was, as to whether the land upon which the said building was situated was a part of Second Street in said city, or the private property of the defendants. The only title claimed by defendants was derived from one D. S. Baker, and if the said D. S. Baker was not in a situation to assert his title to said land, as against the public at the time he conveyed the land, it will follow under the circumstances of this case that defendant will occupy the same situation.

It is conceded, or is sufficiently shown, that the disputed land is a part of Second Street, as it appears upon the recorded plot of said village ; and the decisive question is as to whether said Second Street as it appears upon said plot must be taken to be correct; and for the purposes of this case we think it must, as the said D. S. Baker had by his acts so far adopted said plot in reference to the particular portion thereof affecting this question, that he will not now be allowed to make any claim in opposition thereto. As early as 1861 he caused Lots one (1) and ten (10) in Block twelve (12) to be recorded (on the city records of said city) in his name, describing them in his claim therefor as such, according to the recorded plot, upon which plot said Second Street appeared as bounding said lot one on the side, and covering .the very property in question in this suit. He afterwards made to said-' city a verified claim to a part of the same lots, describing said Lot one as bounded by Second Street, along that very boundary which, in fact, was bounded by the land in question, and upon his said claim received from it a deed with a like recognition of the disputed territory as a part of Second Street. These acts, and some others of a similar nature, appearing in the record, in our opinion estop him, as above stated.

Whence it follows, that as between the parties to this suit, the building in question is in said Second Street, and that the judgment of the Court below so deciding and decreeing its abatement must be affirmed, and it is so ordered.

Let the cause be remanded, with instructions to the Court below to carry into effect its said judgment and decree.