26 Wash. 126 | Wash. | 1901
The opinion of the court was delivered by
The evidence in this case is not brought up with the record. The facts appear from the pleadings and findings. On the 12th of December, 1896, the state of Washington contracted to sell to Ellis & Keed tide lands described as follows:
*127 “All the tide lands lying in front of, adjacent to, or abutting on lots numbered 2 and 3, section 2, township 20 north, of range 3 west, Willamette meridian.”
It appears by the findings that the plat of the survey of lot 2 returned by the surveyor general to the general land office bounds lot 2 on the water side as follows:
“Beginning at the meander corner to sections 2 and 35 on the north boundary of township 20 N., R. 3 west, W. M., which corner is 5.00 chs. west of standard corner, to sections 35 and 36, T. 21 N., R. 3 west; thence with meanders in section 2, S., 491/2 deg. E., 2.60 chs.; S., 72 deg. E., 7.40 chs.; N., 77 deg. E., 3.40 chs.; S., 25 deg. E.. 4.39 chs.; S., 51 deg. W., 2.46 chs.; S., 49 deg. W., 3.14 chs.; S., 37 deg. W., 8.05 chs.; S., 49 deg. W., 3.39 chs.; S., 40 deg. W., 3.95 chs.”
This contract, by assignment, became the property of the appellant. The assignors of the appellant, under said contract, entered into possession of the property contracted to be sold about the time the contract was made, and the appellant and its assignors have ever since used the same for booming purposes in connection with logging operations.- Part of such booming works has been upon that portion of the land shown by the shaded surface between lines 3 — 4, 4 — 7, 7 — 8, and 8 — 3 in the annexed plat. Over this the tide regularly ebbs and flows. The following is a plat of said lot 2:
The black lines represent the boundaries of lot 2 according to the United States government field notes. The shaded part over which the tide ebbs and flows has been used by the respondents at low tide to haul hay over, and for the purpose of driving their stock and cattle over and upon from their barn and stable on the south side of Campbell creek to the north side of said creek, and they so used the same prior to the building of the boom. The building and maintenance of the boom prevent the free
There are twelve assignments of error, but they may all be resolved into one proposition: Had the appellant any title to land within the calls of lot 2, so as to be entitled to a decree quieting its title? This action, in the main, is clearly one to quiet title. The injunctive relief prayed for is a mere incident. In the absence of a statute, the general rule is that one must be in possession of the premises before he can successfully invoke the aid of equity to determine his estate. Section 5521, Bal. Code, is but a reaffirmance of this rule. This section provides that “any person in possession ... of real property . . . may maintain a civil action against any person . . . claiming an interest in said real property, ... or any right thereto adverse to him, . for the purpose of determining such claim, estate or interest. . . . ” Section 5500, Bal. Code, extends the equitable rule to one out of possession. For a person successfully to invoke the interposition of equity, two things must be established: (1) The validity of his own title in law or equity; (2) the invalidity of his opponent’s. The first inquiry, then, is, has the appellant established any title? We do not think that the contract between the state of Washington and Ellis & Heed gave to the appellant any title, equitable or legal, to the tide lands within the meander line of lot 2, section 2, township 20 U., range 3 W., W. M.. The contract with the state referred to lot 2, section 2, township 20 H., range 3 W., W.
Reavis, C. J., and Fullerton, Dunbar, Anders, Mount, and FIadley, JJ., concur.