Kline v. Stein

• Decision Date: 08 July 1907
• Citation: 90 P. 1041,46 Wash. 546
• Parties: KLINE et al. v. STEIN et al.
• Court: Washington Supreme Court

90 P. 1041

46 Wash. 546

KLINE et al. v. STEIN et al.

Supreme Court of Washington

July 8, 1907

Appeal from Superior Court, Kitsap County; A. W. Frater, Judge.

Ejectment by Peter F. Kline and another against Henry W. Stein and another, as executors of the last will of Charles A. White deceased, and another, to recover possession of certain land. From a judgment of dismissal, plaintiffs appeal. Affirmed.

Thomas Carroll, John Arthur, and C. D. Sutton, for appellants.

Charles E. Patterson and Frank T. Reid, for respondents.

FULLERTON J.

This is an action of ejectment brought by the appellants against the respondents to recover some three acres of land. To the complaint in ejectment an answer was filed pleading former adjudication, and to this answer the appellants filed a reply. On the filing of the reply the respondents moved for a judgment on the pleadings, which motion the trial court granted, entering a judgment of dismissal. This appeal is from the judgment so entered.

The facts shown by the pleadings upon which the judgment of dismissal was based are in substance these: In 1884 the appellants entered under the homestead laws of the United States, with other lands, the E. 1/2 of the N.W. 1/4 of section 12, in township 22 N., of range 1 E of the Willamette meridian, which lands were afterwards conveyed to them by patent from the United States. The predecessors in interest of the respondents acquired at about the same time, in the same manner, the W. 1/2 of quarter section described. In making their settlement upon the land entered by them the appellants included in their improvements a part of the W. 1/2 of the quarter section patented to the predecessors in interest of the respondents. After the respondents acquired their rights in the property, they caused the line dividing the tracts to be surveyed, and finding that the appellants had encroached upon the lands described in their patent, entered with force, and moved the fences erected by the appellants back to a place which they conceived to be the true line. The appellants thereupon began an action to recover possession of the tract from which they were thus forcibly dispossessed, claiming title thereto by virtue of the statutes relating to adverse possession. The action was prosecuted to judgment, and the appellants recovered therein all of the land of which they alleged they were dispossessed by the acts of the respondents. The cause was appealed to this court, where the judgment was affirmed and remanded for execution. The respondents thereupon paid the costs and damages adjudged against them, and performed the mandatory part of the judgment by moving the fence onto the line the judgment determined marked the boundary between the two several tracts.

Thereafter the present action was instituted. In it the appellants seek to recover an irregular shaped tract bordering on the west side of the tract recovered in the first action, which they claim they were deprived by the same acts of forcible trespass committed by the respondents that deprived them of the land recovered in the former action, and which was not recovered in that action, owing to the fact that, by accident and mistake on their part, it was not included in the complaint filed in...