City of Port Townsend v. Lewis

• Decision Date: 21 March 1904
• Parties: CITY OF PORT TOWNSEND v. LEWIS et al.
• Court: Washington Supreme Court

75 P. 982

34 Wash. 413

CITY OF PORT TOWNSEND v. LEWIS et al.

Supreme Court of Washington

March 21, 1904

Appeal from Superior Court, Jefferson County; Geo. C. Hatch, Judge.

Action by the city of Port Townsend against Solomon Lewis and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Sachs & Hale, for appellants.

A. W Buddress, for respondent.

FULLERTON C.J.

The respondent, the city of Port Townsend, brought this action to recover possession of, and quiet its title to, a portion of land claimed by it as a public street of which the appellants were in possession. From the record it appears that the predecessors in interest of the appellants, during the years 1885, 1886, and 1887, constructed on tide lands in front of the city of Port Townsend a wharf extending from the shore out towards deep water a distance of some 300 feet. They were in possession of and in the actual use of this wharf at the time the territory of Washington was admitted into the Union as a state--the time the lands on which the wharf was constructed became state property. After the admission of the territory as a state, the city of Port Townsend, pursuant to the authority of the state Constitution and the laws passed thereunder, extended its streets across the tide lands lying in front of itself, one of which, known as 'Front Street,' crossed the end of the appellants' wharf cutting off some 105 feet thereof. The builders of the wharf continued in its possession, and when the board of appraisers for tide and shore lands were appraising tide lands in front of the city of Port Townsend, in 1895, they sought to have that board appraise the lands in the street covered by their wharf as state lands, so that they might purchase the same as tide lands upon which they had improvements, and, on the refusal of the board to make such an appraisement, brought mandamus against them to compel them so to do. The trial court refused to grant the writ, and an appeal was duly taken to this court, where the judgment of the trial court was affirmed. In that case, which was against the predecessors in interest of the present appellants, the validity of the dedication and the proceedings taken to establish the street called 'Front Street,' as well as the rights of the possessors of the property to purchase it from the state, were in issue, and were determined against the rights of the applicants for the writ. The applicants continued in possession, however, and they, with the successors in interest, the appellants, have been in possession over since. In fact, there has been a continuous possession of the wharf by the appellants and their predecessors in interest ever since the same was constructed in 1887.

In its complaint the city set out the proceedings had to establish the street, and the decision of the trial court and of this court in the mandamus proceedings before mentioned, and averred that the appellants were in possession of a portion of the street, claiming an interest therein, but without right. It prayed that its title and right to the street be established and quieted, that the appellants be ejected therefrom, and for general relief. The appellants moved to strike from the complaint certain parts thereof, and to make certain other parts more definite and certain. The motion to strike was sustained as to all that part of the complaint relating to the mandamus proceedings and the judgment of the court thereon, and overruled as to the remainder. The appellants thereupon filed a general demurrer to the complaint, which was also overruled, whereupon they answered, putting in issue its material allegations, and pleading affirmatively the statute of limitations, and certain facts thought to estop the city from asserting its rights to the street in question, if any it ever had. A reply was filed denying generally the allegations of the answer, and again setting out the mandamus proceedings, with the judgments entered therein. A jury was waived, and a trial had before the court, resulting in findings and a judgment for the city.

The appellants assign, among other things, that the court erred in overruling, in part, their motion to strike from the complaint, and to make certain allegations thereof more definite and certain; that it admitted evidence over their objections; and that it refused to grant a motion for nonsuit made at the conclusion of the respondent's evidence. These assignments, however, suggest questions which are of no moment at this stage of the proceedings, no matter how pertinent they may have been at the time they were presented to the lower court. A motion to strike or to make more definite and certain is waived by pleading over and going to trial on the merits. Had the appellants stood on their motion, and appealed from the judgment the trial court might have thereafter entered against them, this court would listen to their objections, but they cannot have the benefit of the technical objection and the benefit of a hearing on the merits at the same time. They must waive either one or the other, and when they proceed to the merits it is a waiver of the technical objection. The claim that the trial court erred in the admission of evidence is equally without avail. The case is one which this court tries de novo, in so far as the findings have been excepted to; and, this being so, it will disregard any evidence which it finds...