Koenig v. Whatcom Falls Mill Co.

• Decision Date: 26 March 1912
• Parties: KOENIG v. WHATCOM FALLS MILL CO. et al.
• Court: Washington Supreme Court

122 P. 16

67 Wash. 632

KOENIG v. WHATCOM FALLS MILL CO. et al.

Supreme Court of Washington

March 26, 1912

Department 1. Appeal from Superior Court, Snohomish County; W. W. Black Judge.

Action by Henry Koenig against the Whatcom Falls Mill Company and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Hadley Hadley & Abbott and Cooley & Horan, for appellants.

E. C Dailey, for respondent.

PARKER J.

This is an action to recover damages for the cutting and removal of timber which is claimed to be the property of the plaintiff. A trial before the court and a jury resulted in a verdict and judgment in favor of the plaintiff, from which the defendants have appealed. Among other errors assigned is the denial by the trial court of appellant's motion for a new trial made upon the ground of insufficiency of the evidence to sustain the verdict. In view of our conclusions upon the questions presented by this assignment, we deem it unnecessary to notice other contentions of counsel.

Appellant Whatcom Falls Mill Company is the owner of the east half of the S.W. 1/4 of section 22, township 31 N., range 6 E., W. M., in Snohomish county. Appellant Matson, at the time of the alleged trespass, was employed by the mill company in charge of its logging operations upon this land. Respondent is the owner of the W. 1/2 of the S.E. 1/4 of the same section. This results in the north and south center line of the section being the common boundary between the two tracts of land. Respondent claims that in logging operations conducted by appellants upon the land of the mill company they cut and removed the timber from a strip of his land 478 feet wide, lying immediately east of and along the boundary line between the two tracts. Appellants concede that they inadvertently cut and removed timber from a strip of respondent's land about 85 feet wide, lying immediately east of and along the true boundary line between the two tracts; but deny that they cut timber from or trespassed upon respondent's land to any greater extent. It is clear from the record before us that the jury concluded that the boundary line between the two tracts was proven to be the line claimed as such by respondent, and that appellants trespassed upon his land substantially to the extent claimed by him. It is also clear that the jury measured respondent's damage accordingly. If the evidence is sufficient to support the conclusion of the jury as to the location of the boundary line, it was not error for the trial court to deny appellants a new trial; but, if the evidence is insufficient to support such conclusion, then a new trial should have been granted to appellants. There is practically no conflict in the evidence upon the question of the true location of the north and south center line of the section, that being the line in dispute, in so far as the truth of the statements made by the several witnesses in their testimony is concerned. The question is to be decided by the comparative probative force of the facts testified to rather than by the comparative credibility of the witnesses. We may for present purposes proceed upon the theory that respondent and his witness testified truthfully as to the facts upon which he rests his claimed location of the line.

This land was surveyed by the government in the year 1879. About the year 1889 respondent acquired the W. 1/2 of the S.E. 1/4 of the section from the government. At that time, and at all times since then, the original quarter corner on the south line of the section, which was established by the government surveyor upon the ground, if any such corner was ever so established, has been lost. This is conceded by all parties. The original section corners at the southwest and southeast corners of the section, as established by the government surveyor upon the ground, are both still in existence. This fact is not in dispute. The government survey field notes which were introduced in evidence show that the government surveyor first ran east 40 chains from the southwest corner of the section, and set a temporary quarter corner at that point; that he then ran on east to the southeast corner of the section, making the south line of the section 79.90 chains long; that he then ran back upon the line 39.95 chains, and set the permanent quarter corner at that point. So the field notes indicate that the quarter corner was set at its proper location; that is, equidistant between the section corners. Soon after respondent acquired his land from the government, he attempted to locate his west boundary line, which, of course, would be the line running north from the south quarter corner through the center of the section by measuring 40 chains east from the southwest corner of the section. He also claims to have measured 20 chains west from a point which he had been told by others was his southeast corner. He never measured from any other points to determine his west boundary. Being unable to find upon the ground any indications of a quarter corner having been there established by the government surveyor, he concluded that the point he thus determined by his measurements was the correct location of that quarter corner. He then marked a line north from that point through the woods by blazing trees. This is the line he now claims to be the west boundary of his land. He is not a surveyor, though we may assume for the sake of argument that his measure of 40 chains east from the southwest corner of the section was...