Moore v. Brownfield

• Decision Date: 12 July 1893
• Citation: 34 P. 199,7 Wash. 23
• Parties: MOORE ET AL. v. BROWNFIELD.
• Court: Washington Supreme Court

34 P. 199

7 Wash. 23

MOORE ET AL. v. BROWNFIELD.

Supreme Court of Washington

July 12, 1893

Appeal from superior court, King county; Richard Osborn, Judge.

Action by James A. Moore, Eugena G. Moore, and the Clise Investment Company against D. F. Brownfield to recover possession of certain real estate. From a judgment entered on the verdict of a jury in favor of defendant, plaintiffs appeal. Reversed.

H. R Clise and Harold Preston, for appellants.

Isaac Miller Hall, for respondent.

ANDERS J.

The respondent moves the court to dismiss the appeal for the alleged reasons that no notice of appeal was ever given in this action, as required by law and that one of the parties to this action has neither given nor received notice of this appeal; but, as the record shows that notice of appeal was given by the plaintiffs in open court, no other notice or service was necessary, (Code Proc §§ 1405, 1406,) and the motion must therefore be denied.

This is an action to recover the possession of a small tract of land situated in section 17, township 25 N., range 4 E., in King county, and lying on the north shore of Lake Union, and in front of a portion of the Christian Brownfield homestead claim, of which the appellants are conceded to be the owners. The land embraced in said homestead claim was first surveyed by the United States government in the year 1855, at which time the premises in dispute were outside of the boundary then fixed,-the meander line of the lake,-and were partially, if not wholly, covered with water. Since that time the water of the lake has become so much lower that it has entirely receded from the land in controversy, and no longer covers any part thereof; and appellants claim title to the same by accretion, or, more properly speaking, reliction. The respondent took possession of a portion of the land in dispute on August 2, 1879, and built a house thereon, in which he has ever since resided, and otherwise improved the same. He claims that the land then settled upon and improved by him was an island, and a portion of the public domain upon which large trees were growing, and that it was separated from the premises of appellants by a channel from 40 to 80 feet wide and some 3 feet deep, which, by the recession of the waters of the lake, has become a part of the mainland; and that he is entitled to the possession, not only of this island, but of the intervening land to the original water line, by reason of having held the same adversely to every one except the United States and the state of Washington for a period of more than 10 years. On the other hand, the appellants contend that no such island as claimed by the respondent ever existed, and at the trial they introduced several witnesses who testified favorably to their contention. They also introduced in evidence a plat of the original survey of this township by the government surveyors, on which no such island was shown or mentioned. But this evidence, except as to the plat, was directly contradicted by witnesses for the respondent, and we are therefore unable to say that the evidence upon this branch of the case is insufficient to justify the verdict.

The next question to be determined is whether the court erred in its instructions to the jury with reference to the statute of limitations. Upon...