Jones v. Jacobson, 32531

• Decision Date: 02 September 1954
• Docket Number: No. 32531,32531
• Citation: 273 P.2d 979,45 Wn.2d 265
• Parties: JONES, v. JACOBSON.
• Court: Washington Supreme Court

Page 265

45 Wn.2d 265

273 P.2d 979

JONES, v. JACOBSON.

No. 32531.

Supreme Court of Washington, En Banc.

Sept. 2, 1954.

Don G. Abel, Chehalis, for appellant.

Fred M. Bond, South Bend, for respondent.

WEAVER, Justice.

This is an action for twenty-five hundred dollars damages arising from the alleged conversion of personal property.

Defendant died, pending appeal, and his executrix has been substituted as respondent. To avoid confusion, we will refer to the parties as plaintiff and defendant.

The property involved is described as:

'One (1) set of drums, Tacoma Compound Yarder together with the sled upon which it was mounted, and all of the equipment, accessories and cable belonging thereto and used in connection with the operation thereof.'

Throughout the record, the property is designated as a 'logging donkey.'

In 1944, defendant purchased and went into possession of one hundred sixty acres of land. At that time, the logging donkey was upon the land.

The trial court found:

'That said logging donkey had at one time been used in the said Grayland area in connection with logging operations, but that it had been at the aforesaid location without having been moved or used since 1941 or 1942 and that brush, grass and trees had grown up, through and around it to a height of several feet. That between the years 1944 and 1952 the boiler had been removed from the said donkey and in later years, probably 1948 or 1949, certain driving gears and cylinders, shaft and wiring were removed from said donkey with certain logging cables. That it is not known who removed the above described items from the said logging donkey.'

Further, the court found:

'That during the years from 1944 to 1952 the defendant made numerous inquiries as to the ownership of the said logging donkey without success.'

In May, 1952, the logging donkcy blocked an area through which defendant desired to build a road, in order to develop a watering system for his cranberry lands. Having made numerous inquiries over a period of eight years and not having found the owner, defendant sold the logging donkey for junk to the Western Machinery Exchange for $164.88. At no time prior to sale had anyone made claim to him of ownership in, or title to, the logging donkey.

If these facts were the only ones before it, the trial court would have been entitled to conclude that the owner of the logging donkey had abandoned it. Abandonment of a chattel by the owner is a complete defense to an action for damages for its conversion. 53 Am.Jur. 876, Trover and Conversion, § 81, and cases cited.

However, it appears from the record that in 1946 the Grays Harbor Logging Company transferred title to the logging donkey to a Mr. Rowe, who in turn, conveyed it to a Mr. Gardner. Mr. Gardner transferred it to Mr. Thoberg, in 1950, and plaintiff acquired title in 1952. There is no evidence that any of the transferees evoer took possession of the logging donkey. None of the bills of sale were recorded and defendant's inquiries concerning ownership disclosed none of these transactions.

The trial court did not conclude that there had been an abandonment, although both counsel seem to have so interpreted the second conclusion of law, which reads:

'That the defendant was fully warranted and justified in considering the said lagging donkey equipment as abandoned and that his aforesaid sale of the same to Western Machinery Exchange was fully justified within the law.' (Italics ours.)

Defendant pleaded the statute of limitations. In addition to concluding, as a matter of law, that the sale of the logging donkey 'was fully justified within the law,' the trial court concluded:

'That the action of plaintiff herein is barred by the statute of limitations.'

Plaintiff appeals from the judgment dismissing his action.

We first consider appellant's assignment of error, directed to the conclusion of law, that the action is barred by the statute of limitations, for, if it is not well taken, we do not reach the problems raised by the remaining assignments of error.

The following sections of our statute are pertinent to this inquiry.

'Actions can only be commenced within the periods herein prescribed after the cause of action accrued * * *.' RCW 4.16.010

'Within three years: * * * (2) An action for taking, detaining, or injuring personal property, including an action for the specific recovery thereof * * *.' RCW 4.16.080.

Did the right of action, upon which appellant maintains this suit, accrue more than three years prior to July 18, 1952, the date he filed his complaint in this action?

On the one hand, we have the personal property, claimed by appellant, located physically upon respondent's land, over which respondent as owner, had exclusive control. The logging donkey was, at least, in the constructive possession of respondent, if not in his actual possession. He had the indicia of ownership which flows from possession. The trial judge remarked in his memorandum opinion:

'The donkey had been in the actual physical possession of the Defendant [respondent] for eight years * * *' (Italics ours.)

He had no knowledge of ownership and after making inquiries, acquired no knowledge.

On the other hand, neither appellant nor his immediate predecessors in interest had either actual or constructive possession of the property. At the time of the several transfers, each transferee knew that the transferor did not have possession. At best, giving full weight to appellant's evidence, all that his immediate predecessors in interest had, and all that they could transfer to him, was a right to immediate possession, or a cause of action, in the event a request for immediate possession was denied. The bills of sale were not made a matter of public record, and the record of this case discloses no evidence of any actions, taken by appellant or his predecessors in interest, which would have given respondent notice of their claimed ownership.

In Young v. City of Seattle, 1948, 30 Wash.2d 357, 361, 191 P.2d 273, 275, 3 A.L.R.2d 704, we quoted with approval from 1 Wood on Limitations (4th ed.) 684, § 122a, as follows:

"Statutes of limitations commence to run against a cause of action from the time it accrues, or from the time when the holder thereof has the right to apply to the court for relief, and to commence proceedings to enforce his rights. The time when a cause of action was accrued within the statutes of limitations means the time when plaintiff first became entitled to sue."

The record is devoid of any indication of how or why the logging donkey came to be on the respondent's property, except the finding that it 'had at one time been used in the said Grayland area in connection with logging operations.' In the absence of evidence, we will not assume that the logging donkey was placed upon the land with the permission or consent of the landowner.

When it came to rest on the land which is now owned by respondent, title of the true owner was reduced to a right of immediate possession or, as we previously pointed out, to a cause of action in the event immediate possession was denied. It was at that time that the cause of action accrued. Since the logging donkey was out of the possession of the true owner, he then became entitled to reduce it to possession or to sue for its recovery or value. This right accrued to him without any action upon the part of the landowner.

The record supports the conclusion that the cause of action, upon which appellant sues, came into existence more than three years prior to the commencement of this action. It was not error for the trial court to dismiss the action for this reason.

We appreciate that our conclusion is inconsistent with that reached by the supreme court of Pennsylvania, under somewhat similar circumstances, as appears in MacDonald v. Leverington Const. Co., 1938, 331 Pa. 381, 200 A. 8, a case cited to us by appellant. However, our analysis is supported by the decision of this court in Edison Oyster Co. v. Pioneer Oyster Co., 1945, 22 Wash.2d 616, 157 P.2d 302, in which this court adopted a different theory.

Briefly, the facts of the Edison case, supra, are these: In April, 1934, the predecessor in interest of the defendant, Pioneer Oyster Company, planted 26,492 boxes of oyster seed upon certain tidelands. October 15, 1934, wind and waves, resulting from a storm of unusual violence, caused a large part of the oyster seed to drift on to the adjoining tidelands of Mr. Nauman. Although the Pioneer Oyster Company's predecessor in interest knew, within a few days after the storm, that a large part of the oysters planted by it had drifted to the Nauman property, neither its predecessor in interest nor the Pioneer Oyster Company made any claim to the oysters on the Nauman tract or attempted to reclaim them until November 12, 1943, when the Pioneer Oyster Company (defendant) wrote plaintiff asserting its claim to the oysters. Plaintiff was under contract to harvest the oysters from the Nauman tract.

As a result of this assertion of ownership, plaintiff brought a declaratory judgment action to have the rights of the parties determined. Defendant cross-complained and pleaded the facts we have set forth. Plaintiff pleaded the statute of limitations. The trial court concluded that all rights of the defendant to the oysters...