Bellingham Bay Land Co. v. Dibble

• Decision Date: 17 September 1892
• Citation: 31 P. 30,4 Wash. 764
• Parties: BELLINGHAM BAY LAND CO. v. DIBBLE. [1]
• Court: Washington Supreme Court

31 P. 30

4 Wash. 764

BELLINGHAM BAY LAND CO. v. DIBBLE. ^[1]

Supreme Court of Washington

September 17, 1892

Appeal from superior court, Whatcom county; JOHN R. WINN, Judge.

Action to quiet title, by the Bellingham Bay Land Company against Carmi Dibble. Plaintiff had judgment, and defendant appeals. Affirmed.

H Y. Thompson and J. A. Kerr, for respondent, in support of its contention that its title is perfect by adverse possession, cite Ellicott v. Pearl, 10 Pet 442; Ewing v. Burnet, 11 Pet. 41; Spear v Ralph, 14 Vt. 400.

DUNBAR J.

The pertinent facts in this case are substantially as follows: On the 28th day of March, 1862, Thomas Jones and Betsy Jones, his wife, were the owners of a donation claim described in the complaint, and situated in the county of Whatcom, territory of Washington, containing 320 acres; the west half having been donated to said Thomas Jones, and the east half to said Betsy Jones, his wife. On said 28th day of March, 1862, for a valuable consideration, Thomas Jones, for himself, and as attorney in fact for the said Betsy Jones, his wife, by a good and sufficient deed conveyed the above-described tract of land to one Edward Eldridge, which said deed was duly acknowledged and placed upon the records of said Whatcom county and territory of Washington. The alleged power of attorney from Betsy Jones to Thomas Jones was not recorded, and could not be and has not been found. In the acknowledgment in the deed, however, from Thomas and Betsy Jones to Eldridge, the officer who took the acknowledgment certified that the power of attorney from Betsy Jones to Thomas Jones for the sale of said land was at that time exhibited to him. The plaintiff, the Bellingham Bay Land Company, claimed to have succeeded by chain of mesne conveyances to the title of the said Thomas Jones and Betsy Jones to the land in controversy, and the validity of the said mesne conveyances is not called in question. On the 17th day of May, 1891, certain persons, claiming to be heirs of Betsy Jones, deeded to appellant, Carmi Dibble, the east half of the said donation claim, so that both parties to the action acknowledge Betsy Jones as the common source of title. The deeds of appellant were recorded in May, 1891, and are alleged to be clouds on the title of respondent. An action to remove said clouds was brought in the court below, which rendered judgment in favor of respondent. It is agreed that both Thomas and Betsy Jones had died before the commencement of this action. The proof of two facts was attempted by the respondent, the establishment of either of which would be fatal to appellant's claim. The facts attempted to be proven were as follows: (1) That plaintiff's title to the land in controversy had been acquired by adverse possession; (2) that Betsy Jones had executed a power of attorney to her husband, Thomas Jones, authorizing him to sell the disputed premises. We will notice the first proposition. It is claimed at the outset by the appellant that under the pleadings as framed no testimony tending to prove adverse holding is admissible. The language of the complaint in this respect is that "the plaintiff and its grantors have been in actual, open, and notorious possession of the said property continuously since the 28th day of March, 1862, under color and claim of title; that neither the defendant nor his ancestors nor predecessors have been seised or possessed of the premises in question, or any part or parcel thereof, within more than ten years before the date of the commencement of this suit." We think there is nothing in appellant's objection. There is no question but that the possession must be adverse, and that the adverseness of the possession is the essential ingredient that ripens into title, and that without that element the statute would not run. But there are certain facts which must be pleaded and proven before the legal conclusion of adverse holding can be announced. It is for the witnesses to testify what the character of the possession was, and from such testimony the legal conclusion is deduced by the court. It is true that some of the text writers, in defining a possession that would bar the title of the legal owner, enumerate five elements of possession which must coexist, viz.: (1) Hostile or adverse; (2) actual; (3) visible, notorious, and exclusive; (4) continuous; (5) claim or color of title; and yet it is clear that the four last-mentioned acts simply constitute, and are necessary to constitute, adverse possession. Said the court in Taylor's Devisees v. Burnsides, 1 Grat. 165: "When we look to the elements of an adversary possession, in reference to conflicting claims, and the statutory prescriptive bar, we find it to consist of an exclusive, actual, continued possession under a colorable claim of title." And such is the accepted doctrine of all the cases. To show conclusively that adverseness is universally regarded as a question of law, and not of fact, the books proceed to discuss the circumstances under which possession would be held to be adverse or otherwise; as, for instance, it is held that possession will not be adverse if it be held under or subservient to a higher title. In 1 Amer. & Eng. Enc. Law, p. 229, cited by appellant on this point, it is held that when the purchaser of lands, under an executory contract, is let into possession, not having paid the purchase money, and not having received a conveyance, he holds in subordination to the title of the vendor, and his possession is therefore held not to be adverse. Where, however, the vendee has executed his part of the agreement by payment of the purchase money, his possession is from that time adverse to the vendor. So that the question of adverseness is plainly a question of law, instead of fact. We think, especially under the provisions of our Code, which require only a plain and concise statement of facts constituting a cause of action, that the complaint is sufficient, and, even if it were not, this court has repeatedly held that in equity causes, where the whole cause was before it, in the interests of justice it would consider all amendments made to the pleadings that could have been made in the court below. Nor can it work any hardship or surprise in this case, as suggested by the appellant in his reply brief, for the case was tried upon the theory of adverse possession, and the appellant has been industrious in preparing his defense to that proposition to the extent of having surveys made to show that the cabin which the plaintiff testified to having taken possession of was not on the land in controversy.

With this view of the sufficiency of the complaint the pertinent question then is, did the plaintiff establish his title to the land in controversy by adverse possession during the statutory period? After careful investigation of all the evidence, we think this question must be answered in the affirmative. We have examined all the authorities cited by both appellant and respondent upon this point, as well as all the other...