Bowden-Gazzam Co. v. Hogan

• Decision Date: 08 December 1944
• Docket Number: 29344.
• Citation: 22 Wn.2d 27,154 P.2d 285
• Court: Washington Supreme Court
• Parties: BOWDEN-GAZZAM CO. v. HOGAN.

154 P.2d 285

22 Wn.2d 27

BOWDEN-GAZZAM CO. v. HOGAN.

No. 29344.

Supreme Court of Washington

December 8, 1944

Department 1.

Action by the Bowden-Gazzam Company against Jack C. Hogan to quiet title to tidelands, consolidated for trial with another action by the same plaintiff against Earl Kent and others. From a judgment for defendant, plaintiff appeals.

Modified and as modified, affirmed.

Appeal from Superior Court, Mason County; John M. Wilson, judge.

Preston Thorgrimson, Turner, Horowitz & Stephan and Theodore S Turner, all of Seattle, for appellant.

Charles T. Wright, of Shelton, for respondent.

JEFFERS, Justice.

About December 23, 1941, Bowden-Gazzam Company, a corporation commenced two actions in the superior court for Mason county, for the purpose of quieting its title to all tidelands of the second class formerly owned by the state of Washington, situated in front of, adjacent to, or abutting upon that portion of the government meander line in front of government lot 4, section 32, township 22 north, range 3 west W. M., extending to the line of extreme low tide, and lying east of the east line of Seattle street extended north, as such street is designated on the plat of Hood's Canal Land & Improvement Company's plan of Union City, according to the record plat thereof in the office of the auditor for Mason county volume 1 of Plats, p. 9.

Jack Hogan was made defendant in cause No. 4075 of the records of the superior court for Mason county, and Earl Kent and wife, Helen McReavy Anderson, the state of Washington and many others were made defendants in cause No. 4088 of the records of the superior court for Mason county.

It is alleged in the complaint in the Hogan case that plaintiff is the owner with the right to possession of the above described property, and that plaintiff and its grantors have owned such real estate at all times hereinafter mentioned.

It is further alleged that defendant Hogan is now and has been for a long time last past in possession of a portion of such tidelands; that defendant originally entered into such possession by permission of plaintiff, and without claim of right has erected certain obstructions thereon; that defendant, as plaintiff is now informed and believes, lays claim to the portion of the tidelands occupied by him, adversely to plaintiff's title, which claims are without right or color; that these encroachments and claims of defendant cloud plaintiff's title to such lands, and hinder the quiet and peaceable possession and enjoyment of same. Plaintiff then prays that title to such tidelands be quieted in it as against defendant and all persons claiming under him.

Defendant Hogan answered this complaint, denying all the allegations thereof except in so far as such denial is inconsistent with the affirmative defense hereinafter stated. Defendant then alleged affirmatively that he had used, occupied and had possession of all the premises now occupied, possessed and used by him for a time in excess of thirty years; that such occupation and possession has at all times been actual, open, notorious, hostile, continuous, exclusive and under claim of right; that during this period defendant has held and possessed the property, together with the right of ingress and egress to the navigable water of Hood's canal and to the public highway; that defendant is the owner of all such property now used, occupied and possessed by him.

In view of the fact that in this opinion we are concerned only with the Hogan case, we shall refer to the Kent case only when it may have some connection with the Hogan case.

The parties to the two actions having so stipulated, the court, on June 12, 1943, entered an order consolidating them for the purpose of trial. We have therefore only one statement of facts, which is applicable to both cases.

We may say here that because of the different factual bases upon which the claims of the respective defendants are based, and because of the order in which the testimony was introduced, it has been most difficult to sift out the testimony applicable to each case.

While these two cases were consolidated for the purpose of trial, separate judgments were made and entered in each case, and separate appeals have been taken by the plaintiff from the judgments entered.

On December 22, 1943, the court made and entered its judgment in the Hogan case. We quote from the decree:

'That the defendant has been in open, notorious, hostile and adverse, and continuous possession of the property hereinafter described for more than ten years prior to the commencement of this action, and has maintained thereon certain buildings and structures, and by virtue of such possession, defendant has acquired title to said property by adverse possession.'

Then follows a metes and bounds description of the property. This discription begins at a point 84 feet north and 8.20 feet west of the southeast corner of lot 39, block 47, Hood's Canal Land & Improvement Company's plat of Union City. The description concludes as follows:

'* * * except that portion of the right of way of Primary State Highway No. 14 (Navy Yard Highway), the said described property being a portion of the tide lands of the second class lying in front of Government Lot 4, section 32, township 22 north, range 3 west, W. M., Mason County, Washington.'

By this decree defendant's title was quieted not only to the land upon which his improvements are located, but also to an area formed by extending a line southeasterly from the northeast corner of what is shown on the exhibits as a barge, to meet a line extended north from the northeast corner of defendant's garage.

Error is assigned in refusing to quiet title in appellant; in adjudging that respondent had acquired title to the property by adverse possession; and in awarding to respondent the unenclosed area not occupied by the structures.

Appellant's general contentions are that it has proved a valid title to the property; that respondent entered upon the tideland as a squatter, and neither his original entry nor subsequent occupancy manifested an intent to claim title adversely to the true owner; that in any event the evidence was insufficient to show adverse possession of the unenclosed area not occupied by respondent's structures.

Respondent does not deny that since about 1901 the record title to the second class tidelands in front of government lot 4 any lying east of the east line of Seattle street has stood in the name of appellant and its grantors, but he contends that by adverse possession under the ten year statute he has acquired title to the tidelands described in the decree.

In so far as appellant's title is concerned, it is sufficient for the purpose of this case to say that appellant deraigns its title to the tidelands here in question through Herbert E. McReavy, who on March 8, 1901, acquired title from the state of Washington to all tidelands of the second class situate in front of, adjacent to, or abutting upon that portion of the government meander line in front of lot 4, section 32, township 22 north, range 3 west W. M., lying east of the east line of Seattle street.

Hood's Canal Land & Improvement Company's plat of Union City does not become material in this case, except in connecting up the starting point of the land awarded to respondent by the decree, and in locating the land awarded to respondent, as respondent is not claiming to have color of title based upon any conveyance, according to the above plat.

We do not deem it necessary in this case to discuss the question of where the line of ordinary high tide in front of government lot 4 is, other than to say that the trial court apparently accepted the line established by Mr. Wey in 1941, as shown on plaintiff's exhibits M and N introduced herein.

We shall try to give a picture of respondent's improvements, in order that we may have them in mind as the testimony is discussed. The structure farthest to the west is described on the exhibits as a barge; it will also be referred to in the testimony as the 'pile driver.' This structure extends northerly and southerly. Across the south, or shore end of the barge is a platform which extends some sixty or seventy feet to the east, where it connects with a garage. This garage is connected with the Navy Yard highway by planks.

Respondent came to Union City about 1907, and for many years operated a pile driver in that vicinity. In 1913 he entered upon appellant's lands, with the intention of making his home there. During the years between 1913 and 1923 he moved his pile driver (which we assume was the same structure referred to as the barge) to about the present location of his improvements. He piped water to the pile driver, had living quarters thereon, and used it as his home. Until 1923, respondent would take the pile driver out as his business demanded, returning it to the same location. He obtained permission from no one to occupy the land herein involved. Respondent testified that he thought if one occupied land for ten consecutive years without interference from any person claiming to own the land, such occupant became the owner.

In 1923 this pile driver was resting on some timbers on the beach. A Mr. Addleman desired to use the driver, so he made an arrangement with respondent whereby Addleman was to first repair the pile driver so it would float, and after he was through with it, he would construct a gridiron and draw the pile driver up on it. When Addleman was through with the driver, he built a gridiron by driving down piling and placing twelve by twelve timbers across the piling. He secured the timbers to the piling by drift bolts. After this was done, the pile driver was pulled up on the gridiron at an extremely...