McCormick v. Sorenson

• Decision Date: 30 March 1910
• Citation: 107 P. 1055,58 Wash. 107
• Court: Washington Supreme Court
• Parties: McCORMICK et al. v. SORENSON et ux.

107 P. 1055

58 Wash. 107

McCORMICK et al. v. SORENSON et ux.

Supreme Court of Washington, En Banc.

March 30, 1910

Appeal from Superior Court, Thurston County; O. V. Linn, Judge.

Action by Susannah McCormick and husband against Charles Sorenson and wife. From a judgment for defendants, plaintiffs appeal. Affirmed.

Troy &amp Sturdevant, for appellants.

Vance &amp Mitchell, for respondents.

CROW J.

Action in ejectment by Susannah McCormick and husband against Charles Sorenson and wife to recover possession of lots in the city of Olympia. From a judgment in favor of the defendants, the plaintiffs have appealed.

The main contention on which the appellants rely for a reversal is that the trial court erred in overruling their motions for a directed verdict, and for judgment non obstante veredicto. At the argument in this court, permission was granted the respondents to prepare and file their printed answer brief. It has not been filed, and we have been deprived of the benefit of any suggestions of their counsel other than those made on the oral argument. The evidence shows that the appellants hold the record title to lots 3 and 4 in block 1 of Fourth Street Boulevard addition to the city of Olympia, deraigned by mesne conveyances from one T. C. Van Epps, and that they and their grantors have paid all taxes thereon; that the respondents, Sorenson and wife, hold the record title to lots 1 and 2 in the same block, deraigned from one Geo. A. Mottman, and that they and their grantors have paid all taxes thereon; that the lots are numbered in consecutive order from north to south, lot 2 being immediately north of, and adjoining, lot 3; that in 1893, Mottman sold lots 1 and 2 to one Harry F. Taylor, who, by measurements made with a 10-foot pole, attempted to locate the boundary lines; that the south line of a certain road or highway was the true north boundary of lot 1; that as then used and traveled by the public the road extended across portions of lots 1 and 2, a fact unknown to Taylor; that by measuring from the south line of the road as then used, he made a mistake and failed to locate the true boundary lines of lots 1 and 2; that he immediately built a fence on the lines as then incorrectly located; that he and his wife entered into actual possession of the property fenced, which included parts of lots 1 and 2, all of lot 3, and lot 4 except the south seven feet thereof; that they believed they were in possession of lots 1 and 2 only; that they built a dwelling house which extended over a portion of lot 3; that they and their grantees have since been in open, notorious, exclusive, and continuous possession of the property fenced; and the respondents now claim title by adverse possession to the portion of lots 3 and 4 included within the fence; that neither the appellants nor any of their grantors have been in possession at any time since 1893, and that this action was commenced by appellants in August, 1907.

It is apparent from the evidence that, in 1893, Taylor's original intention was to enter upon and take possession of lots 1 and 2 only; that by mistake he then took possession of and improved lot 3 and part of lot 4, and that he and his grantees, including the respondents, have ever since been in possession thereof under claim of right, although they have continuously entertained the mistaken belief that the property so claimed by them was described as lots 1 and 2, and that they have repeatedly attempted to convey it by that description, making no reference to lots 3 and 4 in their various instruments of conveyance. The question now presented is whether under such circumstances they held possession under such a claim of right as would ripen into title by adverse possession, or whether by reason of their mistaken idea as to the true description of the property in their possession, and their belief that they were in possession of lots 1 and 2 only, they have failed to acquire title by adverse possession.

Two special interrogatories were propounded to the jury, and answered by them as follows: '(1) If the defendants and their grantors have claimed to own the land within the fences for ten years or more, did they do so because they believed they were occupying lots one and two? Answer. Yes. (2) Did the defendants or their grantors ever intend to occupy any other premises than lots one and two? Answer. No.' In their brief the appellants contend that as Taylor and wife, the grantors of respondents, purchased from Mottman with the intention of securing lots 1 and 2, and by mistake encroached upon lots 3 and 4, they cannot predicate their claim of title by adverse possession on such mistake; that it is immaterial whether the...