O'Brien v. Schultz

• Decision Date: 16 December 1954
• Docket Number: No. 32992,32992
• Court: Washington Supreme Court
• Parties: Patrick J. O'BRIEN, a widower, Appellant, v. Delmar R. SCHULTZ and Carole Loraine Schultz, husband and wife, Respondents.

Page 769

45 Wn.2d 769

278 P.2d 322

Patrick J. O'BRIEN, a widower, Appellant, v. Delmar R. SCHULTZ and Carole Loraine Schultz, husband and wife, Respondents.

No. 32992.

Supreme Court of Washington, Department 2.

Dec. 16, 1954.

Rehearing Denied Feb. 2, 1955.

McCallum & Zellmer, Davenport, for appellant.

C. C. Rowan, Spokane, for respondents.

DONWORTH, Justice.

Plaintiff and defendants are the owners of adjoining tracts of farm land in Lincoln county. This lawsuit stems from a dispute between them as to the location of boundary lines.

In the first cause of action in his amended complaint, plaintiff sought a decree adjudicating that he had acquired title by adverse user to a strip of land containing 3.746 acres and lying immediately south of the original true south boundary of his quarter section of land. He also prayed for one hundred sixty-five dollars in damages for trespass. In a second cause of action, plaintiff sought a decree establishing his title by adverse user to a strip of land lying in the west half of an abandoned roadway running along the eastern boundary of his lands, and asked for eighty-eight dollars in damages for trespass.

Defendants answered, denying the material allegations of the amended complaint, and also filed a cross-complaint seeking $506 as damages for destruction of fences, and for trespass. They also prayed for a decree establishing the equidistant line as the true south boundary.

At the close of plaintiff's case, the trial court granted defendants' motion to dismiss both of plaintiff's causes of action on the ground that he had failed to prove either cause of action. Findings of fact and conclusions of law were made, and a decree was entered dismissing plaintiff's action and establishing defendants' title to the disputed strip containing 3.746 acres.

Plaintiff appeals, making seventeen assignments of error directed to all of the findings of fact, the conclusions of law, the entry of the decree, and the denial of his motion for a new trial. Defendants seek to cross-appeal.

The cross-appeal must be dismissed for three reasons, each justifying a dismissal, to wit: (1) cross-appellants filed no notice of cross-appeal as required by Rules on Appeal 33(3), 34A Wash.2d 33; (2) the judgment or order appealed from is not in the record before this court. See State ex rel. Thomas v. Lawler, 23 Wash.2d 87, 159 P.2d 622; and (3) cross-appellants' brief contains no assignment of error as required by Rules on Appeal 43, 34A Wash.2d 47, as amended, effective January 2, 1953.

Turning now to the appeal, we first will discuss a procedural matter important in this case.

A trial court may sustain a challenge to the sufficiency of the evidence in a case tried to the court for two very different reasons:

One, the court may disbelieve the testimony which plaintiff introduced to prove his prima facie case. In such an event the court is holding, after weighing the evidence, that as a matter of fact the plaintiff has not established a prima facie case by sufficient credible evidence. If the trial court does weigh the evidence and then makes findings of fact setting forth the facts it found to be established, this court, on appeal, will accept such findings as the established facts in the case unless the evidence clearly preponderates against such findings. Rohda v. Boen, Wash., 276 P.2d 586.

Two, the trial court may believe all of plaintiff's testimony but rule that, even if all of his evidence is true and granting him the most favorable inferences which may be drawn therefrom, the plaintiff has not established a prima facie case, and hence cannot recover. Grichuhin v. Grichuhin, Wash., 272 P.2d 141. In such event, the trial court is not weighing the evidence, but simply is holding, as a matter of law, that plaintiff has failed to prove a prima facie case and that the defendant's challenge to the sufficiency of the plaintiff's evidence must be sustained. Findings of fact are unnecessary after such a ruling and on appeal this court will accept plaintiff's evidence as true in determining whether or not his evidence establishes a prima facie case. Arneman v. Arneman, 43 Wash.2d 787, 264 P.2d 256.

In the case at bar, the trial court, in his oral opinion passing upon the motion challenging the sufficiency of plaintiff's evidence, said:

'I am accepting all the testimony of these witnesses as true. There was nobody told any falsehoolds here, I am sure of it.'

Consequently, it is apparent that the trial court held as a matter of law (and not as a matter of fact) that plaintiff had not established a prima facie case, and hence his action must be dismissed. Therefore, this court will likewise treat plaintiff's evidence as true, and will determine whether he established a prima facie case on either of his causes of action. Grichuhin v. Grichuhin, supra; Arneman v. Arneman, supra.

The facts, as established by plaintiff's evidence, may be summarized thus:

Appellant has owned the northeast quarter of a section of farm land near Harrington since about 1935. Respondents acquired title to the southeast quarter of the same section in about 1945, though the property had been owned by other members of respondent husband's family for about twenty years prior to 1945. Appellant's quarter section and respondents' quarter section each contained approximately 157 acres, according to the original government survey. The true boundary line between the quarters was a line parallel to and equidistant from the north boundary of the northeast quarter section and the south boundary of the southeast quarter section.

In about 1900, a fence was erected between the quarters, but instead of being located on the true boundary, the fence was placed on a line a short distance south of the true boundary. The fence enclosed as a part of the northeast quarter a strip of land approximately a half mile long. The strip so enclosed was approximately seventy-five feet wide at the western boundary of the two quarters and approximately fifty feet wide at the eastern boundary. There was no direct testimony as to who erected the fence or why it was built. The fence remained in place until after 1912. During the years it was in place, a ridge about four or five feet wide and a foot to eighteen inches high was created along the fence line because the owners on both sides of the fence always plowed up to the fence line.

Before 1916 the fence was removed but a visible ridge remained, and remains to date, separating the two quarter sections. From 1922 to 1926, a tenant farmed both quarter sections, which were then (and have been ever since 1900) owned by different persons. The tenant (during the 1922-1926 period) testified that he farmed the two quarters as one unit but that he used the ridge of the old fence line as the dividing line. When he harvested the wheat from the two quarters he operated the combine in a large circle, cutting both fields at once. However, he always dumped the sacks of wheat harvested from the northeast quarter on the north side of the ridge and dumped the sacks of wheat from the southeast quarter on the south side of the ridge on each trip of the combine around the field. Consequently, the wheat from the two quarter sections was divided on the assumption that the ridge represented the boundary between the two grain fields.

In 1927, George Kloster became a tenant on the northeast quarter and has farmed it as a tenant ever since. During 1927, Kloster and Jake Schultz, brother of respondent Delmar Schultz, built a fence along the top of the ridge where the old fence had been located. Kloster built half of the fence and Jake Schultz the other half.

From 1927 to 1945, the fence remained in place, and Kloster farmed the northeast quarter down to the fence and the Schultzes farmed the southeast quarter up to the fence. In 1945, the fence was removed by Delmar Schultz with Kloster's approval, since the fence was partly down and had become a place where weeds propagated.

When Kloster started to harvest the wheat on the northeast quarter in the fall of 1945, he discovered that respondents had placed a line of posts through the wheat appellant had planted, north of the ridge line and on or near what later was determined to be the original true boundary. Kloster removed the posts and harvested the wheat up to the ridge.

Respondents then built a barbed wire fence north of the ridge and Kloster, after being advised by appellant what to do, tore the fence out and plowed the disputed strip and put it in summer fallow. Kloster sowed the northeast quarter (including the disputed strip) to winter wheat in the fall of 1946. Before he could harvest in 1947, respondents plowed under the wheat on the disputed strip. For the next several years (1946 to 1949) Kloster and respondents 'fought back and forth' over the strip. Appellant finally had the land surveyed and discovered that the original true boundary was north of the fence ridge. Appellant then commenced this action to establish his title by adverse user to the disputed strip and to recover damages for trespass.

The parties stipulated that, according to the original survey, each of the quarter sections contained 157 acres, and that the owners of each quarter had been assessed for taxes on 157 acres each for many years.

On cross-examination Kloster testified:

'Q. Neither you nor Mr. O'Brien want any land that does not belong to you? A. I should say not.

'Q. And you never have? A. I never have, no.

'Q. What yau want is the land you actually own? A. That is it.'

Appellant, a man eighty-four or eighty-five years old and crippled, brought this action but did not travel from his home in Olympia to Lincoln county to testify at the trial, nor did he testify by deposition.

The second cause of action was based upon appellant's claim of title by adverse user to a strip of land extending to the center of an abandoned road which ran north and south along the eastern boundary of...