Owen v. St. Paul, M. & M. Ry. Co.

• Decision Date: 16 July 1895
• Court: Washington Supreme Court
• Parties: OWEN ET AL. v. ST. PAUL, M. & M. RY. CO.

41 P. 44

12 Wash. 313

OWEN ET AL. v. ST. PAUL, M. & M. RY. CO.

Supreme Court of Washington

July 16, 1895

Appeal from superior court, Snohomish county; Henry McBride, Judge.

Action by Maria Owen and Nels Owen, her husband, against the St Paul, Minneapolis & Manitoba Railway Company for possession of land. From a judgment for plaintiffs, defendant appeals. Affirmed.

Burke, Shepard & Woods, for appellant.

A. W. Frater, for respondents.

DUNBAR J.

This is an action in ejectment brought by Maria Owen and her husband Nels Owen, against the St. Paul, Minneapolis & Manitoba Railway Company. It is alleged that the plaintiffs had the right to immediate possession of the land and that the defendant was in possession, and wrongfully withheld the same from plaintiffs. The prayer of the complaint was that the plaintiffs recover from the defendant the possession of said land, and all thereof, with the appurtenances, and their costs and disbursements. The answer of the defendant denied the material allegations of the complaint, except that the defendant was in possession of the land in dispute, which was lot 11 in block 3 of Highland Park Addition to Sultan City; and for an affirmative defense pleaded that on or about April 23, 1892, proceedings were begun in the superior court of Snohomish county by the defendant against one Al marion W. Graves and the American Mortgage Company to condemn and appropriate to the use of the company a strip of land across Highland Park Addition which included said lot 11 in question in this suit, and alleged that a notice of the pendency of this condemnation proceeding was duly filed in the office of the county auditor of Snohomish county on the 23d day of April, 1892, by which due notice was given to the said Almarion W. Graves and the American Mortgage Company, and to all other persons whatsoever, that said suit had been begun; set up the paragraphs and determination of said condemnation proceedings at length; that a jury was summoned, a trial had, and that the jury returned a verdict for the sum of $1,342, awarding the same to the said Graves, for the taking of the said strip of land described in the petition, including said lot 11 in question in this suit; alleging that a decree of appropriation followed, and that by said decree of appropriation the defendant acquired title to said lot; and also alleged fraud and collusion between the plaintiffs and Graves by which they sought to compel the defendant to pay a greater price for the right of way than it was fairly worth, and that the plaintiffs never had acquired any title or interest whatsoever in said lot, and that whatever interest they did have was subordinate to the title acquired by the railroad company in said condemnation proceedings; and prayed that the action might be dismissed at the cost of the complainants. The reply of the plaintiffs denied each and every allegation contained in the separate and affirmative answer of the defendant. A jury was waived and the case was tried before the presiding judge, and judgment rendered in favor of respondents in accordance with the prayer of the complaint.

Many points are discussed by appellant in this case which it seems to us are not pertinent to the case; but there are one or two main propositions upon which the cause must depend. First were the respondents in any way bound by the decree of the court in the condemnation proceedings pleaded by appellant? If the court in that case had jurisdiction of the subject-matter and jurisdiction of these respondents, it cannot be denied that they are estopped from bringing this action. If it did not, then the respondents had a legal right to bring this action in ejectment, and under the testimony in this case they should prevail. It is conceded that no notice was directly given to respondents in the condemnation proceedings, and that they are not made parties to the action. The lis pendens in the proceedings was filed April 23, 1892, and the condemnation suit was tried May 26, 1892. The testimony in this case shows that the respondents made a verbal agreement with Graves to purchase this lot in question in the month of April, 1891; that they at that time paid $5 in money,-the agreed price of the lot being $100,-entered upon possession of the lot, and made valuable improvements thereon, to wit, a livery stable, the possession of which they maintained until they were ousted by the railroad as a result of the order of the court in the condemnation proceedings above referred to. February 19, 1892, another payment of $20 was made, and on April 22d following a payment of $80, which completed the payment for the lot; and on that day a deed was executed in due form of law from Graves to the respondents for said lot, which deed was recorded on May 2, 1892. The contention of appellant is that by reason of the filing of its notice of pendency of action in the condemnation proceedings it acquired a right in lot 11 prior to the claim of respondents upon an unrecorded deed, and that the decree of appropriation subsequently obtained on June 4, 1892, related back to the time of the filing of the notice of the pendency of the action on April 23, 1892, so as to complete its title and give it priority over the unrecorded deed of respondents. We do not think this...