City of Tacoma v. Tacoma Cemetery

• Decision Date: 09 April 1902
• Citation: 68 P. 723,28 Wash. 238
• Court: Washington Supreme Court
• Parties: CITY OF TACOMA v. TACOMA CEMETERY.

68 P. 723

28 Wash. 238

CITY OF TACOMA v. TACOMA CEMETERY.

Supreme Court of Washington

April 9, 1902

Appeal from superior court, Pierce county; Thad Huston, Judge.

Suit by the city of Tacoma against the Tacoma Cemetery.From a decree for plaintiff, defendant appeals.Affirmed.

Reid &amp Meade, for appellant.

William P. Reynolds and Emmett N. Parker, for respondent.

WHITE J.

Respondent brought suit against appellant to recover possession of certain lands.By its first cause of action it sought to recover a certain strip of land, and by its second cause of action sought to recover possession of certain streets and alleys.Appellant answered each cause of action denying certain allegations, and pleading to each cause a separate answer.These separate answers were, in effect, a recital of the history of the title of the land in dispute.Respondent, by its first cause of action, sought only to recover a very narrow strip of land.Appellant, by its separate answer to said first cause of action, alleged that respondent claimed not only this narrow strip, but considerable adjacent land, under the same deeds.As it was the mutual desire of counsel to have this additional land brought into the controversy, no objection was made to this manner of pleading.Respondent replied to the separate answers.Trial was had before the court without a jury, a jury being waived, and the court made and filed its findings of fact and conclusions of law.There is no question over the facts found by the court.The court found that the appellant had no estate or interest in the land in controversy.Appellant duly excepted to the court's conclusions of law from the facts found.Judgment was rendered in favor of the respondent.From this judgment the appeal is taken.

The facts, in substance, are: The respondent is a municipal corporation, the successor of the town of New Tacoma, a municipal corporation which was in existence prior to 1881.The town of New Tacoma in 1881 was using part of the land in controversy for burial purposes.The board of trustees of New Tacoma in October, 1881, by resolution entered on their minutes, appointed J. A. Banfield, J. H. Houghton, and B Barlow to act as the board of trustees of the New Tacoma Cemetery, with full power, as such board, to acquire title to land to be donated by the Tacoma Land Company to the town of New Tacoma for cemetery purposes, and to perfect their organization for the management of the cemetery grounds as they deemed best.On the 10th of May, 1882, the Tacoma Land Company executed and delivered to Banfield Houghton, and Barlow the following deed: 'The Tacoma Land Company, a Corporation, to John A. Banfield, Joseph H. Houghton, and Byron Barlow, all of Tacoma, Washington Territory, the Board of Trustees of the New Tacoma Cemetery: Whereas, the party of the first part desires to convey to the town of New Tacoma the real estate hereinafter described, for a cemetery; and whereas, the board of trustees of the said town of New Tacoma, by resolution duly passed on the 19th day of October, A.D. 1881, and entered in its records, did designate and appoint the said John A. Banfield, Joseph H. Houghton, and Byron Barlow to act as the board of trustees of the New Tacoma Cemetery, with full power as such board to acquire title to the land donated by the Tacoma Land Company to the town of New Tacoma for cemetery purposes, and also to perfect such organization for the management of said cemetery grounds as they deemed best: Now, this indenture witnesseth that by reason of the premises, and for and in consideration of one dollar to it paid, the receipt whereof is hereby acknowledged, the said party of the first part does grant, bargain, sell, and convey, and covenant to warrant and defend, unto the said the board of Trustees of the New tacoma Cemetery, above named, party of the second part, their successors and assigns, the following described real estate, situate in Pierce county, Washington Territory, viz., lots number one (1) and the northeast quarter of the northwest quarter of section 19 in township 20 north, of range 3 east of the Willamette Meridian, containing, according to the United States survey, seventy-one acres and twenty-four hundredths of an acre, more or less.In witness whereof,' etc.On the 15th of July, 1884, Banfield, Houghton, and Barlow associated with themselves George E. Atkinson and Stuart Rice for the purpose of more effectually executing their trust.They formed a corporation under the laws of the territory of Washington, under the corporate name of Tacoma Cemetery.The last corporation is the appellant.On the 16th of July, 1884, the city council of the city of Tacoma confirmed the action of Banfield, Houghton, and Barlow in forming the Tacoma Cemetery, and directed said trustees to convey to the Tacoma Cemetery the land conveyed to said trustees by the Tacoma Land Company.The said trustees on July 30, 1884, executed and delivered to said Tacoma Cemetery a deed for said land, reciting in the deed that the same was made under the resolution of the city council of the city of Tacoma, directing them 'to convey to the said Tacoma Cemetery, for the purpose of carrying into effect the intention of the donor, the Tacoma Land Company, and to secure to the citizens of Tacoma the full benefit of said grant of land for cemetery purposes.'On the 19th of September, 1884, and on the 7th of March, 1885, the Tacoma Cemetery conveyed to the Tacoma Light & Water Company, a corporation engaged in the business of conveying water to the city of Tacoma and its inhabitants, 12.15 acres of said land.The said deed of September 19 conveyed 5.79 acres; the same being part of the 12.15 acres described in the deed of March 7, 1885.In 1884, after the making of the deed of September 19, 1884, the Tacoma Cemetery and the Tacoma Light & Water Company constructed a substantial fence dividing the land conveyed to the Tacoma Light & Water Company from the land retained by the Tacoma Cemetery, and the fence remained continuously until the year 1898.In the year 1884 the Tacoma Light & Water Company went into actual physical occupancy and possession of a strip of the land so conveyed to it, and so continued until the 22d of June, 1893.This strip was about 66 feet wide, and was used as a way for its water flume.On the last date the Tacoma Light & Water Company conveyed the land described in its two deeds to the city of Tacoma, and the city of Tacoma went into possession of said strip, and retained possession until 1898, and has continued in open and notorious possession of part of said strip ever since it was conveyed to it.No part of the land described in the deed from the Tacoma Light & Water Company to the city of Tacoma was at any time between September 19, 1884, and the month of _____, 1898, in the actual occupancy of any person other than the said light and water company and its grantee, the city of Tacoma.The part of the land not occupied by the water flume was unused and unoccupied, and not in the possession of any one, save as the same might be construed to be in possession of the light and water company and the city of Tacoma under their respective deeds.All taxes on the land conveyed to the light and water company were paid by it up until the time of the conveyance to the city of Tacoma.The Tacoma Cemetery in 1898 entered into and upon a large part of said land, being that part lying east of a line parallel to, and about six feet easterly from, the water flume conveyed by the light and water company to the city of Tacoma, and ousted and ejected the city of Tacoma therefrom.On the 19th of September, 1884, the Tacoma Cemetery conveyed to the Tacoma Park Association 11 acres, part of the land described in the deed of the Tacoma Land Company.This 11 acres in February, 1888, was conveyed by the park association to J. D. Caughran; also in 1890 the same tract was conveyed by quitclaim deed by said park association to the said J. D. Caughran.In 1889 Caughran and his wife platted into town lots, streets, and alleys said 11 acres, and called it 'South Park Addition to Tacoma, Washington Territory.'The streets and alleys in this addition were dedicated to the public use.On September 8, 1890, the Tacoma Cemetery executed a quitclaim deed to the Tacoma Park Association for said 11 acres.In 1884 the Tacoma Park Association, under the deed of September 19, 1884, went into possession of said 11 acres, and inclosed the whole thereof with a substantial fence, and continuously thereafter remained in actual, open, and notorious possession until the same was conveyed to Caughran, in 1888; and, until the same was platted by Caughran, no one save the Tacoma Park Association and Caughran has been in possession of said 11 acres.From the 14th of March, 1889, when the land was platted, up to the 1st of July, 1898, all the streets and alleys in the plat were free to public use, and were not in the possession of any one other than the city of Tacoma and the public.In 1898 the Tacoma Cemetery entered into the land covered by the streets and alleys in said plat, and ousted and ejected the city of Tacoma therefrom.All of the land described in the deed from the Tacoma Land Company for more than nine years last past has been within the corporate limits of the city of Tacoma.The deeds to the light and water company and to the park association were made for a fair consideration in money, equal in amount to the full and fair market value of the land at the time the deeds were made; and this money was paid to the Tacoma Cemetery, and by it used and expended in caring for and beautifying the grounds of said cemetery, and for other proper expenses incident to the proper management of the cemetery.The deed to the water company...