45 Wash. 413 | Wash. | 1907
On the 18th day of November, 1890, Hattie E. Wells and husband conveyed to Mary E. Young, lot 7, of block 12, of Catlin’s Addition to the city of Tacoma,
The appellants at the trial requested the court to instruct the jury to return a verdict in their favor. This, with certain other requests for instructions on the part of the appellants, was refused. The refusal of these requests for instructions and the refusal of the court to grant a new trial are the only errors assigned. The only testimony offered by either party tending to establish the line between lots 7 and 8, according to the official plat, was the testimony of the engineer Nicholson, and for the purpose of this case we will assume that the Nicholson survey was correct and that the appellants’ fence is now located on the line between the two lots, as shown by .the official plat. The only title the respondents have shown to the disputed tract, therefore, is title by adverse possession, and such is the title upon which they in fact rely. The appellants contend that the respondents had no color of title to any portion of lot 7, never asserted any claim to any portion of that lot, and that their asserted claim of title by adverse possession at this time must fail.
The rule governing title by adverse possession in this class of cases, as repeatedly announced by this court, is this:
“If one by mistake inclose the land of another, and claim it as his own, his actual possession will work a disseizure, but if, ignorant of the boundary line, he makes a mistake in laying his fence, making no claim, however, to the lands up to the fence, but only to the true line as it may be subsequently ascertained, and it turns out that he has inclosed the lands of the adjoining proprietor, his possession of the land is not adverse.” Bowers v. Ledgerwood, 25 Wash. 14, 64 Pac. 936.
See, also, Suskdorf v. Humphrey, 36 Wash. 1, 77 Pac. 1071; Wilcox v. Smith, 38 Wash. 585, 80 Pac. 802; Noyes v. Doug
The testimony on the part of the respondents shows, or at least tends to show, that they not only claimed lot 8, but also claimed to a particular line, and this brings the case clearly within the rule above announced. The request to instruct the jury to return a verdict for the appellants was properly denied. While many of the other requests for instructions were proper, we think the law of the case was fully covered by the general charge of the court to which no exceptions were taken.
It is urged in support of the motion for a new trial that the verdict is excessive. A reference to the pleadings and testimony of the respondents will disclose three separate and distinct descriptions of the tract in dispute, no two of which are the same. The complaint and verdict describe the tract as a strip of land thirty inches wide, lying immediately north of the appellants’ fence constructed on the Nicholson survey. The reply describes the tract by reference to a board fence extending from the alley to a point near the west end of the house on lot 7, and thence from the end of this fence, along the south side of the house by the projection of the eaves in a straight line, to the street line in front of the lots. All of the witnesses on the part of the respondents testified that the appellants’ fence on the Nicholson survey is two feet south of the original stake, up to which the respondents claimed title, at the front or east end of the lot, and two feet and seven inches south of the like stake at the west end or alley. When the description in the reply is read in the light of the uncontradicted testimony, it appears that the appellants’ house, to which reference is made, is not constructed parallel with the lot lines, and that the southeast corner of the house is 11 inches nearer the lot line than is the southwest corner. A direct line across the lot, by the projection of the eaves of the house on lot 7, describes a tract of land approxi
The testimony of the respondents and their witnesses was to the effect that the appellants extended their fence two feet beyond the line to which the respondents claimed title on the front part of the lot and two feet and seven inches at the alley, and to this testimony the jury gave credence. From the foregoing statement it will be seen that the jury awarded the respondents six inches more land than their testimony would warrant, at the street line of the lot, and one inch less at the alley. We might perhaps disregard this slight discrepancy, under the maxim lex non mmimum curat, were it not for the fact that the line as found by the jury extends five inches beyond and under the eaves of the appellants’ house, at its northeast corner, and some question might hereafter arise as to the right of the appellants to maintain their house at its present location if this judgment should be permitted to stand.
The judgment will therefore be modified so as to limit the respondents’ recovery to a strip of land two feet in width, lying along and immediately north of the Nicholson survey and the fence constructed by the appellants. The judgment for damages is fully sustained by the testimony and is in no manner affected by this modification. The judgment of the court below will be modified as above indicated, and as thus
Hadley, C. J., Fullerton, Root, Crow, Mount, and Dunbar, JJ., concur.