J.M. Weatherwax Lumber Co. v. Ray

• Decision Date: 29 April 1905
• Citation: 80 P. 775,38 Wash. 545
• Parties: J. M. WEATHERWAX LUMBER CO. et al. v. RAY et ux.
• Court: Washington Supreme Court

80 P. 775

38 Wash. 545

J. M. WEATHERWAX LUMBER CO. et al. v. RAY et ux.

Supreme Court of Washington

April 29, 1905

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Suit by the J. M. Weatherwax Lumber Company, and others against J. B Ray and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

W. H Abel, for appellants.

J. C Cross, for respondents.

DUNBAR J.

This appeal is taken by the defendants from a decree quieting title in the plaintiffs to certain timber in Chehalis county, Wash., and perpetually enjoining the defendants from claiming any right, title, or interest therein. In substance, the plaintiffs alleged that, as tenants in common, they were the owners and claimed title in fee simple to timber on certain described land; that the land claimed was wild, vacant, uninclosed, and uncultivated timber land; that the defendants claimed an interest in the said timber adverse to the plaintiffs, without any right whatever, which claim created a cloud on plaintiffs' title; that the defendants from time to time wrongfully entered upon said premises, and cut and converted to their own use large quantities of timber, to plaintiffs' irreparable damage, etc., and that they threatened to continue such cutting and use of the timber; made the usual allegations as a basis for injunctive relief; and prayed for a temporary injunction during the pendency of the action, which was granted. Defendants moved to vacate the restraining order, which motion was denied, and the defendants then demurred to the complaint on the ground that equity was without jurisdiction in the premises. Demurrer was overruled. The defendants answered, denying that the plaintiffs were the owners of the timber, but alleging ownership in themselves of both the land and the timber, and especially alleging ownership by adverse possession and under claim of right for 14 years immediately prior to the commencement of the action, and that the plaintiffs had not been seised or possessed thereof within that period; alleging by way of estoppel a certain prior action. The reply was, in substance, a denial of the several defenses. The defendants demanded a jury, which was granted, and upon the issues above outlined the case went to trial, with a verdict in favor of the plaintiffs, upon which the judgment was based.

It is argued that the court erred in denying a motion to vacate the restraining order, in overruling the demurrer to the complaint, in denying motion to dismiss upon the pleadings, and in denying motion for nonsuit; and these assignments are all based upon the claim that the property in contention was real estate, and that an action to quiet title by a party out of possession against defendants who are in possession and assert ownership will not lie. The question of the appellants' possession was, of course, one of fact which was tried by the jury, and cannot be considered on demurrer. But conceding, without deciding, that an action to quiet title to timber would be governed by the same rule of law that would govern an action to quiet title to land, under the rule announced by this court in Bates v. Drake, 28 Wash. 447, 68 P. 961, the objection raised by the appellants is not available to them here, for in that case, in reviewing the case of Spithill v. Jones, 3 Wash. St. 290, 28 P. 531, we said: 'This court in that case did hold that an action to quiet title...