Northern P. Ry. Co. v. McDonald

• Decision Date: 06 May 1916
• Docket Number: 13245.
• Citation: 157 P. 222,91 Wash. 113
• Parties: NORTHERN PAC. RY. CO. v. McDONALD.
• Court: Washington Supreme Court

157 P. 222

91 Wash. 113

NORTHERN PAC. RY. CO. v. McDONALD.

No. 13245.

Supreme Court of Washington

May 6, 1916

Department 1. Appeal from Superior Court, Benton County; Bert Linn Judge.

Action by the Northern Pacific Railway Company against William McDonald. Judgment for plaintiff by default, and from an order refusing to vacate the judgment, the defendant appeals. Order affirmed.

H. Dustin, of Prosser, for appellant.

Geo. T Reid, J. W. Quick, and L. B. Da Ponte, all of Tacoma, for respondent.

MOUNT J.

This appeal is from an order of the superior court refusing to vacate a default judgment. When the motion came on to be heard, it was agreed by counsel that, unless the defendant's petition set forth a valid defense to the plaintiff's complaint, there would be no necessity for vacating the default judgment. The trial court was of the opinion that the answer of the defendant to the complaint was insufficient, and therefore refused to vacate the judgment. This appeal is from that order.

It appears that the plaintiff brought the action to eject the defendant from a certain portion of the right of way of the railway company, alleging, in substance, that by an act of Congress dated July 2, 1864, the land was granted to the railway company for a right of way; that, pursuant to that act, the railway company definitely located and constructed its railway across the land; that the defendant unlawfully and wrongfully trespassed upon the plaintiff's right of way, and took possession of a part thereof, describing it. It prayed for a judgment for the recovery of the premises, and for the reasonable rental of the land.

For answer, which was tendered in the petition to vacate the default, the defendant admitted the grant by Congress, and admitted that between the years 1884 and 1885 the railway company filed its map of definite location, and denied that by reason thereof the railway company became the owner of the land. He then for a further answer alleged that in May, 1883 prior to the filing of the map of definite location, one Michael A. Ward filed a pre-emption on the land in dispute that afterwards, in May, 1890, he changed his pre-emption claim to a homestead entry filed upon the land at said time, and continued to reside thereon until the 23d day of March, 1902, when he received a patent from the United States government; that the railway company unlawfully appropriated the land without authority; that on May 1, 1903 Michael A. Ward conveyed the land to the defendant; that the defendant went into possession, and has ever since remained in possession of the land, excepting a strip used by the railway company as a roadbed for its railway. In an amended answer which the court permitted to be filed the same...