Bowers v. Ledgerwood

• Decision Date: 23 April 1901
• Citation: 64 P. 936,25 Wash. 14
• Parties: BOWERS v. LEDGERWOOD.
• Court: Washington Supreme Court

64 P. 936

25 Wash. 14

BOWERS v. LEDGERWOOD.

Supreme Court of Washington

April 23, 1901

Appeal from superior court, Lincoln county; C. H. Neal, Judge.

Action by George F. Bowers against Oliver Hendren. By order of court, Thomas J. Ledgerwood was substituted as defendant. Judgment for plaintiff. Defendant appeals. Reversed.

Myers &amp Warren, for appellant.

Martin & Grant and Wright & Wright, for respondent.

REAVIS C.J.

Action in ejectment. The action was commenced against the tenant in possession, Hendren, but the appellant was substituted as defendant by order of the court. The defendant in his answer disclaims any interest in the premises demanded, except a small strip of land containing 15 or 20 acres, and claims title to such strip by adverse possession for a period of more than 10 years. The title to this strip of land was the only question in issue. At the conclusion of the testimony the court discharged the jury and found the facts, to which finding of facts no exception was taken by either party. The facts were, in substance, that the land in dispute is a narrow strip of 15 or 20 acres extending along the entire eastern portion of section 1, township 26 N., of range 36 E., W. M., Lincoln county; that east of a certain fence, and immediately east of section 1, is section 6 township 26, range 37, same meridian; that there is now, and has been since 1880, a county road running in a northerly and southerly direction across the entire eastern portion of section 1, and on the east side of this road there is, and has been since 1885, a rail fence, which forms the westerly boundary line of the strip of land in controversy; that in 1880 defendant Ledgerwood filed upon lots 4, 5, 6, and 7 in section 6, as a homestead, which land is immediately east of and adjacent to the tract of land in dispute; that Ledgerwood immediately settled upon, and made his residence and home upon, the premises including the tract in dispute, and that in 1885 he built and constructed the fence above mentioned which fence was then, and is now, the western boundary of the land in dispute; that, at the time of building the fence Ledgerwood believed that the same constituted the western boundary line limit of his homestead; that there is not now, and never has been since 1880, any other fence or division line between sections 1 and 6; that in 1887 Ledgerwood received patent for his homestead, which was duly recorded in the auditor's office; that in 1881 he broke, plowed, and cultivated the tract of land in dispute, to the fence; that in 1888 he constructed a dwelling house of the value of $400, which house has at all times been occupied by him and his father and mother and tenant, until the commencement of this suit; that in 1886 defendant planted an orchard upon the tract in dispute, the trees being planted as near as 10 feet to the fence, and he had also put other improvements on said tract, consisting of a barn and outbuildings and a well; that section 1, which includes the tract of land in dispute, was part of the grant to the Northern Pacific Railroad Company under the act of congress of July 2, 1864, and that the map of definite location of the railroad was filed in the general land office on October 4, 1880; that on the 24th of October, 1895, a patent was issued to the railroad company for said section 1; that on the 15th of September, 1898, plaintiff, in consideration of $159.63, to be paid in five years, by contract purchased lots 1 and 2 on the S. 1/2 of the N.E. 1/4 and the S.E. 1/4 of said section 1 from the railroad company; that at the time of such purchase plaintiff knew that a portion of the land so purchased was east of the fence, and that the same was in the possession of and claimed by the defendant, and that plaintiff had been a resident near this land for a number of years, and knew of the improvements upon the tract in dispute, and upon which defendant was living; that on the 18th of March, 1899, the plaintiff demanded possession of the tract of land in dispute. Upon such findings, the superior court adjudged the tract in dispute to the plaintiff.

It will be observed there is no controversy as to continued uninterrupted occupancy by the defendant of the tract in controversy for a period of more than 10 years; and the facts certainly establish that the claim and dominion of defendant over the tract was exclusive and inconsistent with any other theory than the claim of ownership, and entitle the defendant to recover in this action, unless we admit the contention urged by counsel for respondent,--that the unintentional inclosure or use of a strip of land owned by another, and lying next to the boundary, the location of which is not clearly known, will not constitute adverse possession. Counsel have industriously cited a number of authorities in which general expressions apparently sustain their contention. Among those which are most pertinent are Preble v. Railroad Co. (Me.) 27 A. 149, 21 L. R. A. 829; Krider v. Milner (Mo. Sup.) 12 S.W....