Durrah v. Wright

• Decision Date: 14 February 2003
• Docket Number: No. 28410-3-II.,28410-3-II.
• Citation: 63 P.3d 184,115 Wash.App. 634
• Court: Washington Court of Appeals
• Parties: Richard and Jolan DURRAH, Appellants, v. Otis E. and Flora WRIGHT, Respondents.

63 P.3d 184

115 Wash.App. 634

Richard and Jolan DURRAH, Appellants, v. Otis E. and Flora WRIGHT, Respondents.

No. 28410-3-II.

Court of Appeals of Washington, Division 2.

February 14, 2003.

Stephen L. Wozny, Longview, for Respondent.

John Herbert Bigelow, William John Faubion, Cathlamet, for Appellants.

MORGAN, J.

The question is whether a plaintiff claiming title by adverse possession has the right to a jury trial under article I, § 21 of the Washington Constitution. The answer is no if, as is true here, the plaintiff presently possesses the disputed land.

Richard and Jolan Durrah sued Wright,¹ the titleholder of record, to quiet title to land on which the Durrahs were then maintaining a pipeline. The Durrahs alleged that they had been "in actual, open, adverse, notorious, and uninterrupted possession for more than ten (10) years[,]" and that they had acquired title by adverse possession.² Wright asked that the Durrahs' claim be dismissed and its title "affirmed."³

The Durrahs filed a jury demand that complied with CR 38.⁴ Wright moved to strike the demand,⁵ alleging that the action was equitable in nature. The trial court struck the jury demand, granted partial summary judgment on some issues, and held a bench trial on the remaining issues.⁶ After trial, the court awarded the Durrahs some but not all of the disputed land. The Durrahs then filed this appeal.

Relying on article I, § 21 of the Washington Constitution, the Durrahs claim on appeal that "the [t]rial [c]ourt erred by denying [their] Right to Jury Trial."⁷ Accordingly, we consider article I, § 21; whether it has been expanded by statute; and whether it applies in this case.

I.

Washington became a state on November 11, 1889. Since then, article I, § 21 has provided, "The right of trial by jury shall remain inviolate[.]"⁸

Article I, § 21 "guarantee[s] those rights to trial by jury which existed at the time of the adoption of the constitution."⁹ Such provisions are "similarly worded and viewed in nearly all the states[.]"¹⁰ Thus, the Washington Supreme Court has quoted the Pennsylvania Supreme Court as follows:

The founders of this state brought with them to their new abode the usages to which they had been accustomed in the land from which they emigrated. Among them was trial by jury. That mode of trial had long been considered the right of every Englishman, and it had come to be regarded as a right too sacred to be surrendered or taken away. Even in England it was fundamental or constitutional, so far as any right can be where there is no written frame of government. Its extent and its privileges, how and when it was to be enjoyed, were perfectly understood, and in bringing it with them the founders of the Commonwealth doubtless intended to bring it as they had enjoyed it. None of the frames of government or constitutions under which we have lived have contemplated any extension of the right beyond the limits within which it had been enjoyed previous to the settlement of the state or the adoption of the constitution.... [The constitutional provision] look[s] to preservation, not extension. It is the old right, whatever it was, the one previously enjoyed, that must remain inviolable.... [¹¹]

The Territorial Code of 1881 was in effect just prior to statehood. In chapter 46, it described common law actions for ejectment.¹² In chapter 47, it described equitable actions to quiet title.¹³ In § 204, it granted the right to a jury trial in common law actions but not in equitable actions.¹⁴ At first glance then, article I, § 21 guarantees the right to jury trial in common law actions for ejectment, but not in equitable actions to quiet title.

We confirm this conclusion by examining a pre-statehood case, several post-statehood cases, and several cases from other jurisdictions. The pre-statehood case of Smith v. Wingard¹⁵ was decided in 1887 by the Territorial Supreme Court. The plaintiff alleged that he was in possession of land that the defendant was claiming under a competing deed, and that he, the plaintiff, should have judgment "for the recovery of said land as against the wrongful claim of said defendant."¹⁶ Assuming that the plaintiff was proceeding under Chapter 46, the defendant "contend[ed] that the complaint is fatally defective because it shows that this plaintiff is in possession of the property."¹⁷ The only question on appeal was whether the complaint alleged facts sufficient to state a claim.¹⁸ The Territorial Supreme Court stated that the action contemplated in Chapter 46 "is the common-law action of ejectment,"¹⁹ and that "an action cannot be maintained under [Chapter 46] by one in possession of real property against another to determine and decide title."²⁰ The Territorial Supreme Court held that the action contemplated in Chapter 47 is the equitable action of quiet title; that the court would deem the plaintiff to be proceeding under Chapter 47; and that the complaint was sufficient under Chapter 47. The Territorial Supreme Court explained:

[T]his complaint would be insufficient if it were to be measured by chapter 46 of the Code alone. The facts averred, however, whatever the view of the plaintiff or his counsel in bringing the suit, make a perfect and complete case for a court of equity under chapter 47, section 551, of the Code. The last subdivision of section 551, omitting parenthetical clauses, reads as follows: "Any person in possession, by himself or his tenant, of real property, and any private or municipal corporation in possession by itself or tenant of any real property,... may maintain a civil action against any person or persons, corporations or associations, claiming an interest in said real property, or any part thereof, or any right thereto adverse to him, them, or it, for the purpose of determining such claim, estate, or interest," etc. It is unnecessary to argue that the rights here created and the jurisdiction here conferred are strictly equitable in character. It has been so held by the Supreme Court of the United States in several similar cases. The complaint, therefore, states a good cause of action, and the demurrer was properly overruled.[²¹]

The four post-statehood cases are Spithill v. Jones,²² Rohrer v. Snyder,²³ Brown v. Baldwin,²⁴ and Carlson v. Curren.²⁵ In each, the State Supreme Court indicated that from common law times to the time of the dispute then before it, the right to jury trial existed in a common law action for ejectment, but not in an equitable action to quiet title.

In Spithill,²⁶ the plaintiff brought an equitable action to quiet title. The trial court dismissed when he failed to prove that he "was in possession of the land in question, or that the same was unoccupied by any person."²⁷ After holding that the trial court had been justified in finding that the plaintiff had failed to prove that he was in possession or that the land was vacant, the State Supreme Court stated:

This being so, the [trial] court was right in dismissing the bill for want of equity; for, regardless of the other questions raised, we are satisfied that there must be proof of one of these facts to warrant the bringing of such an action as the one at bar.

At common law a bill to quiet title could only be maintained when the plaintiff, by allegations and proof, showed that he was in possession; and while it is true that our statute has so far changed this rule that the plaintiff need not be in possession of the land, yet, in such a case, we are of the opinion that the fact that the land is unoccupied is a material one, and necessary to the jurisdiction of the court. To hold a contrary doctrine would be to allow this form of action to be substituted in every case for an action of ejectment, and the defendant in possession of the property be deprived of his constitutional right to a trial by jury.[²⁸]

In Rohrer,²⁹ the State Supreme Court declined to apply Spithill when the disputed land was vacant. The court also spoke about the right to jury trial. The court said:

It was alleged in the complaint and established by the evidence, however, that the property was not in the actual possession of any one at the time this action was instituted. Where such conditions exist an equitable action to try title or remove clouds from title can be maintained by reason of the express provision of the statute. Ballinger's Code, § 5521. It is where the real property is in the actual possession of an adverse claimant that the statute requires these questions to be litigated in an action brought to recover the possession. The action was also properly tried without the intervention of a jury. It is one purely equitable in its nature, and, as such, is to be tried as other equitable actions are tried under the uniform practice in this state.[³⁰]

In Brown,³¹ the court overruled Spithill to the extent of holding that an equitable bill to quiet title would not be dismissed merely because it failed to show the plaintiff was in possession; it would instead be treated as alleging a common law action for ejectment. The court recognized, however, that the right to a jury trial would be the same as it had always been. The court stated:

This holding does not lead to the conclusion that all the distinctions between law and equity are abolished, or that equitable actions are not to be tried under the same rules under which they always have been tried. It simply means that it makes no difference what the action is termed, and that the relief sought must be granted according to the demands of the complaint if they are substantiated by proof.... [W]hen once the applicant has gained legal access to the court through a statement of facts, which the law demands that the complaint shall be, he is entitled to just such relief as his complaint and his proof warrant; and in the trial of the cause, if it is discovered that the relief is equitable, the court will administer the equitable relief. If it becomes necessary in the trial of the cause to

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