People's Sav. Bank v. Bufford

• Decision Date: 09 March 1916
• Docket Number: 13279.
• Citation: 90 Wash. 204,155 P. 1068
• Court: Washington Supreme Court
• Parties: PEOPLE'S SAVINGS BANK v. BUFFORD et ux.

155 P. 1068

90 Wash. 204

PEOPLE'S SAVINGS BANK v. BUFFORD et ux.

No. 13279.

Supreme Court of Washington

March 9, 1916

Department 1. Appeal from Superior Court, King County; Augustus Brawley Judge.

Action by the People's Savings Bank, a corporation, against Frank Bufford and wife. From a decree for defendants plaintiff appeals. Remanded, with instructions.

Kerr &amp McCord, of Seattle, for appellant.

McCafferty Robinson & Godfrey, of Seattle, for respondents.

CHADWICK J.

Since the 3d day of February, 1897, appellant has been the owner of lot 5 in block 10 in Armour's addition to the city of Seattle. On the 11th day of September, 1903, one Kellog, being the owner, conveyed to respondents lot 5 in block 7 in Armour's addition. Kellog went upon the ground with respondents and undertook to point out the boundaries of lot 5 in block 7. As a matter of fact, he pointed out lot 5 in block 10. Very soon thereafter respondents slashed off a part of the brush, put a fence around three sides of the lot, and sowed some turnips. They did some clearing from time to time thereafter, and also some grading. The record is not entirely clear as to the time when the grading was done. It is reasonably clear, however, that the lot was used to a greater or less extent as a garden from the time respondents took possession up to the summer of 1907, when respondents built a five-room house upon it at a cost of about $1,200. At the time respondents purchased from Kellog, Armour's addition was in an outlying district, ungraded, unimproved, and but sparsely settled.

Appellant paid the taxes on lot 5 in block 10 from year to year, including all special assessments. Respondents paid the taxes and special assessments on lot 5 in block 7. The tax notice for 1913 showing a tax for improvements, an agent of the appellant went out to see the property and found the lot owned by it improved and occupied by respondents. He notified respondents that they were in possession of a lot owned by appellant. This seems to have been the first time that respondents had any notice or knowledge of the fact that they were not on the lot which they had purchased.

Failing to agree upon terms of settlement, appellant brought this action praying for the possession of lot 5 in block 10, and that the title thereto be quieted, and for equitable relief. Respondents set up the statute of limitations, praying that the complaint be dismissed, and by amendment upon the trial that their title be quieted.

Another fact, not very material, but indicative of the good faith of the parties, is that at the time respondents built their house they put a mortgage upon it describing the property as lot 5 in block 7.

The relation of the parties may be quickly summed up by reference to the memorandum of the trial judge:

'The only difference being that one was in possession of the property improving it, while the other was simply carrying it upon its books, paying the taxes and giving no further attention to the property.'

Upon the authority of McCormick v. Sorenson, 58 Wash. 107, 107 P. 1055, 137 Am. St. Rep. 1047, a decree was entered in favor of the respondents.

But it is not every possession that will start the running of the statute. There is a presumption attending always, that one who enters into the possession of the property of another, enters with the permission of the true owner, and holds in subordination to his title. The statute begins to run from the date of possession, only when it is sustained by a hostile intent to claim adversely, or, where possession is taken by mistake, the intruder exercises such dominion over the property as to put the true owner upon notice of the hostile claim. As is said in the books:

'The disseisor 'must unfurl his flag on the land, and keep it flying, so that the owner may see, if he will, that an enemy has invaded his domains, and planted the standard of conquest.'' 1 R. C. L. 693.

In other words, a title by adverse possession, where land is claimed under mistake, '* * * cannot be decided as a matter of law, without resort to the facts of the particular case.' Johnson v. Ingram, 63 Wash. 554, 115 P. 1073. The claim must be followed by acts which clearly evince a determination of permanent ownership. Bowers v. Ledgerwood, 25 Wash. 14, 64 P. 936.

Where one enters upon land under a claim of right arising in or out of the chain of title, or under color of title, the entry is sufficient to start the running of the statute. But where one enters with the permission of the true owner--and one who enters by mistake, having no intention to claim that which is not within the calls of his deed, is upon no higher plane--the statute will not begin to run until the record owner has actual notice, or the land is put to such uses as to put him upon notice that the occupant is not a mere trespasser, but is asserting a hostile claim.

The presumption that one entering upon the property of another does so in subordination to the title of the real owner is a valuable right of property. The disseisor is put to the burden of proof ( Skansi v. Novak, 84 Wash. 39, 146 P. 160), and the title is not to be overcome by evidence of entry and occupation alone, but the hostile intent must be clearly demonstrated; that is to say:

'* * * Regard must be had to the nature or quality of the acts, and to the situation of the property, as well as to the theory upon

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