Reynolds v. Dexter Horton & Co.

2 Wash. 185 | Wash. | 1891

The opinion of the court was delivered by

Stiles, J.

— The court below found as a fact that appellees were in possession of the stone in controversy at the time when appellants entered upon the lands where it lay and removed it. Considering the character of the property — newly quarried stone — we cannot say that the court was not warranted in its finding. Unless the finding was so clearly unfounded as that it should have been set aside had it been made by a jury, we should not disturb it. It stands as a special verdict, and must be so treated. Code, § 247. Being in possession, then, it further appeared that appellees claimed to hold the stone under the following circumstances: A corporation known as the “Builders’ Material Company” in 1889 obtained from the board of commissioners of Whatcom county a lease of certain lands in section 36, and thereafter, having discovered a ledge of building stone thereon, opened a quarry and took therefrom the stone in question; and while the stone was still lying at the quarry the Builders’ Material Company assigned its lease and made a bill of sale of the stone to the appellees. The appellants, without any right in them, entered upon the leased land and took away the stone by collusion with the appellees’ agent, who resided upon the land near the quarry, and had charge of the property. The complaint alleged appellees to be the owners and entitled to the possession of the property, and that appellants had wrongfully taken it from their possession. The answer was a general denial. Judgment was for the appellees.

Appellants contend that, inasmuch as the stone was quarried from lands belonging to the state, and that the act of quarrying was waste by the tenant, the possession of the lessee and of its grantee under the bill of sale was wrongful, and not sufficient to base thereon an action for the taking and detention. But, inasmuch as the appellees were in possession of the stone under a claim of ownership made in good faith, although perhaps erroneous, we hold that the orderly administration of affairs in the community requires that the defendants should not be allowed to get and retain the property in the manner shown by the record. The appellees’ possession was rightful as against every one, with the exception, possibly, of the state, and was good as against any mere wrong-doer. Wells, Rep., § 110; Cobbey, Rep., § 136; Sprague v. Clark, 41 Vt. 6. The judgment of the court below is therefore affirmed, with costs.

Anders, C. J., and Dunbar, J., concur. Hoyt, J. disqualified. Scott, J., expressed no opinion.